Tripura High Court
Sri Prakash Chandra Biswas vs The Tripura University on 6 September, 2018
Equivalent citations: AIR 2019 (NOC) 453 (TRI.), AIRONLINE 2018 TRI 340, AIRONLINE 2018 TRI 340 (2018) 5 GAU LT 667, (2018) 5 GAU LT 667
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
W. P.(C) No.202 of 2014
Sri Prakash Chandra Biswas,
son of Sri Binod Behari Biswas,
residing at Quarters No.101,
(Udaipur District Jail Complex)
P.O. Radhakishorepur, P.S. Radhakishorepur,
District-Gomati, PIN-799 120
............Petitioner
-Versus-
01. The Tripura University,
represented by the Registrar,
Tripura University, Suryamani Nagar,
P.O. Suryamani Nagar, District-West Tripura,
PIN-799 022
02. The Vice Chancellor-cum-Chairman,
Discipline Committee, Tripura University,
Suryamani Nagar, P.O. Suryamani Nagar,
District-West Tripura, PIN-799 022
03. The Pro-Vice-Chancellor-cum-Member,
Discipline Committee, Tripura University,
Suryamani Nagar, P.O. Suryamani Nagar,
District-West Tripura, PIN-799 022
04. The Dean of Arts & Commerce-cum-Member,
Discipline Committee, Tripura University,
Suryamani Nagar, P.O. Suryamani Nagar,
District-West Tripura, PIN-799 022
05. The Dean of Science-cum-Member,
Discipline Committee, Tripura University,
Suryamani Nagar, P.O. Suryamani Nagar,
District-West Tripura, PIN-799 022
06. The Controller of Examination-cum-Member,
Discipline Committee, Tripura University,
Suryamani Nagar, P.O. Suryamani Nagar,
District-West Tripura, PIN-799 022
07. The Member Secretary & Director,
CDC, Tripura University, Suryamani Nagar,
P.O. Suryamani Nagar, District-West Tripura, PIN-799022
08. Prof. Satyadeo Podder,
Coordinator of Ph.D Course Work Examination, 2014
for Social Science Subjects, Tripura University,
Suryamani Nagar, P.O. Suryamani Nagar,
District-West Tripura, PIN-799 022
Page 2 of 30
09. Dr. Manisankar Mishra,
Asst. Professor, Department of History,
Tripura University, Suryamani Nagar,
P.O. Suryamani Nagar, District-West Tripura,
PIN-799 022
----Respondents
For the petitioner : Mr. Partha Sarathi Bhattacharya, Sr. Adv.
Mr. D. K. Biswas, Adv.
For the respondents : Mr. S. K. Deb, Sr. Adv.
Mr. S. Datta, Adv.
Date of hearing : 23.02.2018
Date of delivery of : 06.09.2018
Judgment & Order
Whether fit for reporting: YES
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
Judgment and Order
The petitioner was a candidate for Ph.D. Course Work Examination under the Department of Law, Tripura University. He appeared in the said examination with due permission from the authority, the High Court of Tripura for pursuing the Ph.D. Programme in law on part-time basis. On 19.02.2014 in the course of the examination for Paper-III, the Co-ordinator of the Examination, Prof. Satyadeo Podder entered the hall and made some announcement but the petitioner could not follow the subject of announcement. On his query the Co-ordination repeated the announcement stating that the candidates were required to answer „5 questions‟ out of „8 questions‟, even though in the question paper it had been instructed to write answer of „4 questions‟. At that time the petitioner had pointed out some other mistakes and stated that no sufficient time was left for answering the extra question inasmuch as the examination hour was Page 3 of 30 about to be over within a short while. But without responding to that difficulty, the Co-ordinator left the hall. After sometimes the said Co- ordinator appeared in front of the Examination Hall and started talking loudly. The petitioner along with some other examinees felt disturbed and requested the Co-ordinator to talk in low voice. That irritated the Co-ordinatar. After a few minutes, Dr. Mani Shankar Mishra, Asstt. Professor, Department of History, Tripura University entered the hall and directly came to the petitioner and „snatched away‟ his answer sheet and the question paper. Thereafter, he left the hall. The petitioner followed Dr. Mani Shankar Mishra and requested him to return the answer sheet but he refused. Then he entered the office of the Co-ordinator. The petitioner asked the Co-ordinator what the reason was for such behavior. Then, both the Co-ordinator and Dr. Mishra shouted at him and threatened to expel from the examination.
02. On 21.02.2014 when the petitioner reported in the examination hall for Paper-IV, Dr. Prabin Mishra, Head of the Department, Department of Law informed him that he had been expelled from the Ph.D. Work Examination. Later on, the petitioner came to know that one expulsion notice was issued on 19.02.2014 but he was not served any copy. When the said incident was reported in the newspaper, the High Court of Tripura took further information from the Tripura University and placed the petitioner on suspension by the order dated 20.02.2014, Annexure-3 to the writ petition. On 25.02.2014, the petitioner made a prayer, Annexure-4 to the writ petition, for revoking the expulsion notice, if any, issued on 19.02.2014 by the Co-ordinator of Ph.D. Works for Social Sciences Page 4 of 30 inasmuch as, according to the petitioner, the said expulsion was mala fide and lacked in foundation.
03. On 03.04.2014, the Member Secretary and Director, CDC, Tripura University (the respondent No.4) issued a letter to the petitioner, Annexure-5 to the writ petition, directing him to appear before the Discipline Committee of Tripura University on 09.04.2014 at 3 p.m. in connection with the charge against him for breach of conduct and discipline in the Ph.D. Course Work Examination, 2014 held on 19.02.2014.
04. The petitioner appeared before the Discipline Committee in terms of the schedule. The Discipline Committee, later on, communicated the resolution/decision to the petitioner through the communication bearing No.F.TU/ DIR.CDC/Discipine.Com/71/2012 dated 09.04.2014. The entire minutes of the Discipline Committee as extracted in the writ petition and not questioned by the respondent in respect of its veracity is reproduced hereunder:
"Proceedings of the meeting of the Discipline Committee held on 9th April, 2014 at 3 PM in the Tripura University with Prof. Anjan Kumar Ghosh, Vice Chancellor, Tripura University, on the chair.
Members present
1. Prof. Anjan Kumar Ghosh, Vice Chancellor - Chairman
2. Prof. Anjan Mukherjee, Pro-Vice-Chancellor - Member
3. Prof. Jyotish Nath, Dean, Arts & Commerce - Member
4. Prof. Sangram Sinha, Dean of Science - Member
5. Dr. Bhupal Chandra Sinha, Controller of Exam - Member
6. Smt. S. Debbarma, Director, CDC - Member Secretary At the outset the Chairman of the Discipline Committee welcomed the members present and initiated discussion.Page 5 of 30
Sri Prakesh Chandra Biswas, (bearing Roll No.LA/Ph.D/ M/04/14) who was expelled on 19th February, 2014 for adopting unfair means in the Ph.D Course Work Examination, 2014 appeared before the Discipline Committee.
The sealed Answer Script which was seized from Sri Prakesh Chandra Biswas was opened in front of the members of the Discipline Committee alongwith the Notice of expulsion issued by Prof. Satyadeo Podder, Coordinator. A strip/slip of paper was found attached with the Answer Script. It was reported by the invigilator (on the Answer script) that the candidate was fond cheating and adopting unfair means in the Examination Hall by copying from the enclosed slip of paper and he was caught redhanded at about 2.30 pm on 19th February, 2014.
Then, opportunity was given to Sri Prakesh Chandra Biswas to give justification, if any, in his defence. Sri Biswas expressed his views that
1. Sri Biswas confessed that the Answer script shown to him was of him but the enclosed slip of paper was not him.
2. the report of the Invigilator is totally false.
3. He is a victim of some personal grudge of some person.
4. Notice of Expulsion is not yet supplied to him.
5. He also pointed out some mistakes in the Question paper.
6. He informed the committee that on 19th February, 2014 Prof. Satyadeo Podder came to the Examination centre and started discussion with somebody in a very loud voice just in front of the said Examination Hall. He requested humbly to stop shouting in front of the Examination Hall. After that, Sri Manishankar Mishra, invigilator, came and snatched his Answer script, Question paper and left the hall.
7. As a result of this Expulsion, his academic pursuit is being hampered, his social stands and reputation are also affected. False reports have been published in some daily news papers containing some false imputation against him.
8. He humbly requests the authority to revoke the expulsion notice issued dated 19th February, 2014.
The Discipline Committee discussed at length and opined that the expulsion Notice issued on 19th February, 2014 stands valid and Sri Prakesh Chandra Biswas be debarred from appearing in the Ph.D. Course Work Examination in any department of Tripura University for three years from 2014, Page 6 of 30 Meeting ended with a vote of thanks to the chair."
05. The said proceeding note dated 09.04.2014, Annerxure-6 to the writ petition, is the sheet-anchor of the controversy. The petitioner has challenged the decision contained therein and asked this court to set aside the expulsion notice dated 19.02.2014 and the said resolution/decision dated 09.04.2014. As consequential relief, the petitioner has urged to restore his status and allow him to appear in the Course Work Examination, 2014. In a nutshell, the challenge of the petitioner is structured on the following deficiencies and action in contravention to the code and the principles of natural justice:
(i) No copy of the expulsion notice dated 19.02.2014 was ever served to the petitioner.
(ii) The Discipline Committee was not constituted in compliance of the provisions of Ordinance B-9(2) as framed under Section 57(1) of the Tripura University Act, 2006 read with clauses (1), (6) and (7) of the Statute 29 inasmuch as by the said provision it has been provided as under:
"2. Constitutions:
The Discipline Committee shall comprise the
following members:
1. The Vice-Chancellor - Chairman
2. The Pro-Vice-Chancellor - Member
3. The Deans of the Faculties - Member
4. The Dean of the Students' Welfare - Member
5. The Hostel Wardens (special invitee, - Member If matters related to hostels are placed in the meeting)
6. The Director of College Development Council - Member
7. The Controller of Examinations - Member Page 7 of 30
8. The Proctor - Member Secretary."
The petitioner by his representation dated 30.04.2014 urged the Vice-Chancellor, the Chairman of the Discipline Committee to reconstitute the Discipline Committee as per relevant norms, rules and procedures and reconsider the expulsion notice observing the principle of natural justice. According to him, the procedural impropriety has vitiated the decision dated 09.04.2014.
(iii) No report of the invigilator was placed in the proceeding and no other paper either supplied to the petitioner or placed in the proceeding in support of the alleged misconduct. Thus, the material fact was suppressed. Even while taking the decision in the proceeding dated 09.04.2014, the objection raised by the petitioner has not been analysed nor any reason has been provided why those objections were discarded by the Discipline Committee.
(iv) No proof in respect of „copying from the slip‟ has been provided. Arbitrarily the impugned decision was drawn up by the Discipline Committee in respect of adopting unfair means in the examination hall by copying from the slip of paper. The respondent- University does not have any Standard Operating Procedure (SOP) nor does it have rules of their own for conducting the procedure in respect of inquiry into the allegation of unfair means, if adopted in the examinations.
06. In the reply, the respondents have raised objection as to the maintainability of this petition in view of Sections 37 and 38 of the Tripura University Act, 2006. Sections 37 and 38 of the Tripura Page 8 of 30 University Act, 2006 are reproduced hereunder for purpose of reference:
"37.(1) Any student or candidate for an examination whose name has been removed from the rolls of the University by the orders or resolution of the vice- Chancellor, Discipline committee or Examination Committee, as the case may be, land who has been debarred from appearing at the examinations of the University for more than one year, may, within ten days of the date of receipt of such orders or copy of such resolution by him, appeal to the Executive Council and the executive Council may confirm, modify or reverse the decision of the vice- Chancellor or the Committee, as the case may be.
(2) Any dispute arising out of any disciplinary action taken by the University against a student shall, at the request of such student, be referred to a Tribunal of Arbitration and the provisions of sub-
sections (2), (3), (4) and (5) of section 36 shall, as far as may be, apply to a reference made under this sub-section.
38. Every employee or student of the University or of a college or Institution maintained by the University or admitted to its privileges shall, notwithstanding anything contained in this Act, have a right to appeal within such time as may be prescribed by the statutes, to the Executive Council against the decision of any officer or authority of the University or of the Principal or the management of any college or an Institutions, as the case may be, and thereupon the Executive Council may confirm, modify or reverse the decision appealed against." There cannot be any amount of dispute that Section 37 of the Tripura University Act, 2006 clearly provides that who has been debarred from appearing in the examinations of the University for more than one year, may, within 10 days of the date of receipt of such orders or copy of such resolution by him, appeal to the Executive Council and the Executive Council may confirm, modify or reverse the decision of the Vice Chancellor of the Committee as the case may be. It is an admitted position that no such appeal has been filed by the petitioner.
07. It has been asserted in the reply filed by the respondents that from the proceeding minutes dated 09.02.2014 it reveals that the petitioner was asked to give his justification as to his conduct that how a slip of paper was found „attached to his answer script‟. Even the petitioner was apprised about the report of the Invigilator that the Page 9 of 30 petitioner was found cheating and adopting unfair means in the examination hall by copying from a slip of paper and he was caught red handed. According to the respondents, the discipline committee discussed the matter threadbare and after detailed discussion the expulsion notice issued on 09.02.2014 was found valid and it was decided that the petitioner be debarred from appearing in the Ph.D. Course Work Examination from any department of Tripura University for 3(three) years from 2014. In the reply, the allegation of non- appreciation of the materials was denied. The factual aspects as narrated in the writ petition that the respondent No.8 made some announcement in the examination hall intended to be listened by all the examinees was denied. However, it has been in the latter part, admitted that such announcement was made to apprise that 5 questions were to be answered in place of 4 questions (see para-6 of the reply). It has been further denied that the respondent No.8 started talking loudly by creating annoyance to the examinees or that the petitioner raised any objection in this regard. The respondent No.9 as it has been asserted in the reply found the petitioner copying from a slip of paper in the examination hall. It has been also admitted that after seizing the answering script with the slip of paper, the respondent No.9 handed over those materials to the respondent No.8. In para-15 of the reply, the respondents has averred as follows:
"15. With regard to the statements made in paragraph 13 of the petition, it is submitted that two words viz. "packet of' were inadvertently missed after the word "sealed" before the words "Answer Script". It is reiterated that an answer script along with the loose piece of paper/chit was seized from the petitioner from the examination hall and the said answer script along with loose piece of paper/chit was produced before the Discipline Committee and was opened in front of the petitioner. The seized answer script along with the loose piece of Page 10 of 30 paper/chit as seized from the petitioner in the examination hall was opened before the Discipline committee in presence of the petitioner wherein admittedly the petitioner admitted/confessed that the answer script shown to him was his even though he denied that the enclosed slip of paper was not his."
08. It has been also asserted that the respondent No.8 was competent to issue the order of expulsion for adopting unfair means in the examination hall in terms of Rule 4.06 of Tripura University (Regulation for Doctor of Philosophy (Ph.D.) Regulations, 2011. But in the Regulation 4.06 of the said Regulations (Annexure-R/1 to the reply) no such power has been conferred on the Officer-in-Charge of the Examination Centre. Even though the Regulation 4.5 provides that the Co-ordinator of the respective subject group shall be the Officer-in- Charge of the Examination Centre. No other provision is available in the regulations in respect of dealing with the unfair means in the examination hall. The respondents produced the answer script of Paper-III of the Ph.D. Course Work Examination, Annexure-R/4, where one note of the invigilator on the fly-leaf is found. The note reads as under:
"The candidate has been found cheating and adopting unfair means in the examination hall. He is copying from the enclosed slip of paper. He has been caught red handed about 2.30 p.m. on 19.02.2014. The said note is initialled. Even a copy of the answer script has been place with the record and it has been stated that the material in the slip has relation with the question No.3 which reads as under:
"3. Prof. John Finnis correlates his theory of justice with the concept of common goods which represents a new trend under the natural law tradition. Discuss"
The slip that has been produced carries a head line "John Finnis‟s natural law theory and a critic of incommensurable nature of Page 11 of 30 common goods. In the reply there has been no endeavour to show that any part of the slip of paper has been copied by the petitioner. It has been asserted by the respondent in their reply, in response to the allegations made in the writ petition, that no reason whatsoever was provided by the Discipline Committee while adopting the impugned resolution. The resolution reads, inter alia, as under:
"It is stated that the petitioner was made known of the charges brought against him and he was given opportunity of defending himself. A perusal of the Record of Proceedings of the Discipline Committee on 09.04.2014 contains all the 8 points raised by the petitioner."
09. Even the allegation of taking a vindictive attitude has been seriously disputed by the respondents. The action taken by the respondent No.8 was validated in the meeting of the Discipline Committee after providing the petitioner reasonable opportunity for his defence on the charge as brought against him for breach of conduct/discipline in the Ph.D. Course Work Examination, 2014 on 19.02.2014. Whatever the petitioner had stated in the proceeding was duly recorded.
10. In respect of constitution of the Discipline Committee the respondents have stated that the petitioner has failed to show how the formation was not proper. It has been further stated that the allegations made in the representation by the petitioner is wild in nature and the constitution of the Discipline Committee was in terms of the ordinance. The petitioner filed the rejoinder against the reply (the counter affidavit) filed by the respondents No.1 to 9 and in the rejoinder the petitioner has highlighted and nourished his allegation made in the writ petition in respect of violation of principles of natural Page 12 of 30 justice and formation of the Discipline Committee. The petitioner has reiterated that no show cause notice was issued before the expulsion notice dated 19.02.2014 and without any valid foundation the decision of expulsion was taken. Even the allegations were not mentioned in the notice for appearance dated 03.04.2014. The Discipline Committee has failed to meet the objection espoused by the petitioner by assigning reasons. Moreover, the answer to the question No. 8(c) is related to the slip of paper as attached has not been explained. That contains different materials. The slip is also not hand written by the petitioner. The petitioner has further stated that the Dean of Students‟ Welfare and the Proctor were supposed to be in the Discipline Committee but the respondents in contravention to the provisions of the first Ordinance B-9 did not include them. Therefore, there was none to look after the interest of the candidate. In crux, the fundamental allegation is that the petitioner was asked to defend abruptly without providing time to brood over the allegation. The petitioner has emphatically submitted that there was no valid Executive Council of Tripura University at the relevant time. As per Section 47 of Tripura University Act, 2006, the Executive Council shall remain valid only for 3 years. The last Executive council was constituted for 3 years on 21.01.2011. On expiry of the tenure, new Executive Council was not constituted at the relevant point of time. In such circumstances, the petitioner was persuaded to approach this court by filing this writ petition. The petitioner has also given example from the rules of the other Universities how the rules of principles of natural justice are observed (see para-11 of the rejoinder). Hence, the petitioner has contended that the proceeding as drawn has been so done without show cause notice or without supplying any statement of conduct for which the Page 13 of 30 petitioner was charged, with materials, has been vitiated and the decision therefore is liable to be interfered with by this court.
11. The material facts, to a larger extent, are admitted by the parties and that can be conveniently gathered from the averments and the materials so produced by the respondents. Having appreciated the averments and the records so produced, the following questions appeared pertinent to be attended to by this court:
(a) Whether the petitioner was given reasonable opportunity to defend the allegation brought against him or whether the principles of natural justice have been trampled by the respondents in such a manner which requires interference in respect of the process which has led the impugned decision?
(b) Whether the defence as projected by the petitioner was met by reasons while adopting the impugned resolution confirming the expulsion of the petitioner from the Ph.D. Course Work Examination, 2014 and debarring him from appearing from the said examination from any department of Tripura University for the next 3 years from 2014?
(c) Whether the constitution of the Discipline Committee is in conformity to the provisions of Ordinance B-9(2)?
(d) Whether the materials make out a case of expulsion or debarring on conduct of the petitioner in the examination hall on 19.02.2014?Page 14 of 30
12. Mr. Bhattacharya, learned senior counsel appearing for the petitioner has submitted that the process leading to the impugned decision is grossly flawed for violating the principles of natural justice as well as showing utter disregard to the requirement of the University Code in respect of the formation of the Discipline Committee. He has emphasised that since the respondents did not have any reason to meet the objection raised by the petitioner off-hand in the proceeding notwithstanding the fact that the petitioner was neither provided with a copy of the expulsion notice nor any materials beforehand, even the crux of charge was withheld from him. Mr. Bhattacharya, learned senior counsel has made a discourse on the law in respect of how in such situation the respondents ought to have acted in conformity to the principles of natural justice. According to Mr. Bhattacharya, learned senior counsel, even though the empty formality is not germane to the process but the substantive due process cannot be allowed to be eclipsed inasmuch as unless the components of natural justice are observed it would be amounting to denying of right of hearing. He has further laid stress that absence of reasons in a decision is denial of principles of natural justice. In respect of the jurisdictional objection to the maintainability of the writ petition, Mr. Bhattacharya, learned senior counsel has submitted that non-availability of the forum and stark violation of principles of natural justice provide the necessary cause to approach the High Court under Article 226 of the Constitution of India. Finally, he has contended that the entire process is so arbitrary unless that is interfered with, the action as the end-result would be dirge on justice. To summarise the submission of Mr. Bhattacharya, learned senior counsel this court may note the fundamental flaws as pointed out are (a) no expulsion notice was ever Page 15 of 30 served to the petitioner (b) no opportunity at that stage was afforded to the petitioner (c) no report of the Invigilator was provided to the petitioner (d) no seizure of materials was there inasmuch as no witness to the seizure was there and finally (e) the decision is not supported by any reason, express or implied.
13. To buttress the submission made for the petitioner Mr. Bhattacharya, learned senior counsel he has relied on a few decisions germane to the controversy. In K. Vijayalakshmi v. Union of India reported in AIR 1998 SC 2961 where the authority withheld the documents based on which the conclusion was drawn for adopting unfair means in the examination the apex court has observed as under:
"6. We are of the view that without going into the factual aspect of the case, the order of the Tribunal as well as the order of the General Manager confirmed by the appellate authority are liable to be set aside on the sole ground that the document based on which the conclusion came to be reached having not been supplied to the appellant, the decision cannot be sustained. The respondent ought to have given to the appellant a copy of the opinion of the Forensic Department based on which the impugned order came to be passed."
14. As it has been contended that the slip of paper as purportedly seized from the petitioner does not demonstrate that materials contained in that slip was used by the petitioner. Mr. Bhattacharya, learned senior counsel has relied on the decision of the Sarat Kumar Panigrahi v. Secretary, Board of Secondary Education, Orissa reported in AIR 2003 SC 3560 where it has been enunciated by the apex court as under:
"5. During the course of hearing in this Court, upon the request of the appellant, the respondent-Board has made available the record of the proceedings dated 20.3.2001 from its custody. Without entering into an enquiry into Page 16 of 30 disputed questions of fact and recording a finding thereon, suffice it for our purpose to notice two glaring facts. The report which is alleged to have been prepared on the date of the incident under signatures of the Central Superintendent is in a proforma prescribed for the purpose of preparing a report of any malpractice detected at the examination hall/center. The proforma contemplates column numbers 16 and 17 being signed by the invigilator, but the invigilator has not signed the report. Admittedly the center superintendent, who has signed the report, was not present in the hall. Then there is controversy, firstly, as to whether the seized material was a handwritten slip or a printed paper, and secondly, as to whether the paper was seized from the floor of the examination hall or from inside the pocket. Two facts are undisputed: firstly, that the seized paper was not related with the examination--as per column 20 of the proforma report, and secondly, it was not used--as per column 11 of the proforma report. In these proceedings the candidate has lost one year and at the subsequent examination taken by him he has come out with flying colours.
6. We have some doubts if the material (slip of paper) was really seized in the manner in which it is alleged to have been seized. We leave the matter at that. We asked the learned counsel for the appellant that in view of the candidate having already cleared the examination and that too with first division why is he interested in pursuing the matter in the Court? The learned counsel stated, under instruction, that the candidate, a meritorious student otherwise, has lost one valuable year's time of his career and a stigma attaches with him on account of the accusation. We, therefore, dispose of this appeal by setting aside the judgment of the High Court and directing that all the proceedings taken against the student Chandra Shekhar Panigrahi shall stand quashed. He shall be deemed to have passed the HSC examination conducted by the Board of Secondary Education, Orissa, at Cuttack, in the first attempt and without any stigma. The writ petition filed by the appellant and this appeal shall be treated as disposed of in the abovesaid terms."
15. Principle of audi alterem partem is applied in the procedure of debarring any candidate appearing in the examination. In Board of High School and Intermediate Education, U.P. Allahabad v. Ghanshyam Das Gupta and Others reported in AIR 1962 SC 1110 it has been held that the committee which is authorised to take decision on the conduct of the examinee in the examination, considering the serious consequence of their decision a duty is cast Page 17 of 30 upon them to act judicially and the manner of the disposal must be on the materials placed before it having provided the reasonable opportunity of access to the examinee. It has been observed in that backdrop by the apex court as under:
"We are therefore of opinion that the Committee when it exercises its powers under R.1(1) is acting quasi- judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Committee. This view was taken by the Calcutta High Court in Dipa Pal v. University of Calcutta, A.I.R. 1952 Cal. 594 and B. C. Das Gupta v. Bijoyranjan Rakshit, A.I.R. 1953 Cal. 212 in similar circumstances and is in our opinion correct."
16. In Ghanshyam Das Gupta (supra) it has been further observed by the apex court as follows:
"12. It is urged on behalf of the appellant that there are a large number of cases which come up before the Committee under r. 1 (1), and if the Committee is hold to act judicially as a quasijudicial tribunal in the matter it will find it impossible to carry on its task. This in our opinion is no criterion for deciding whether a duty is cast to act judicially in view of all the circumstances of the case. There is no doubt in our mind that considering the totality of circumstances the Committee has to act judicially when taking action under r. 1 (1). As to the manner in which it should give an opportunity to the examinee concerned to be heard, that is a matter which can be provided by Regulations or Bye-laws if necessary. As was pointed out in Local Government Board v. Alridge, (1) all that is required is that the other party shall have an opportunity of adequately presenting his case. But what the procedure should be in detail will depend on the nature of the tribunal. There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature; but where quasi- judicial duties are entrusted to administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was given to the respondents in this case to give an explanation and present their case before the Committee. We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under r. 1 (1) is not correct, its final decision allowing the writ petition on the Page 18 of 30 ground that no opportunity was given to the respondents to put forward their cases before the Committee is correct."
17. Mr. Bhattacharya, learned senior counsel thereafter has referred few other decisions of various High Courts as regards the attributes and observance of natural justice in the similar circumstances. In the full bench decision in Ramesh Kapur v. Punjab University and another reported in AIR 1965 Punjab 120 it was held by Punjab High Court that if the right of the candidate to be heard is the substantive right, the candidate must know the case, particularly for the reason that he is to meet those with necessary details or evidence, as on those the case against him is based. Refusal thereof is violation of rule of natural justice. It has been observed as follows:
"(15) Thus, most of the cases, which have come up before Single and Division Benches of this Court, have been decided on their own facts and in each case the Court while mindful and fully aware of the rule laid down by their Lordships in 64 Pun LR 575: (Air 1962 SC 1110 )has satisfied itself that the rule of natural justice about giving adequate information of the accusation and adequate opportunity of presenting the case has been followed. The cases, which are binding or authoritative, enunciated the fundamental principal that no party ought to be condemned unheard; and if his right to be heard is to be a reality, he must know in good time the case which he has to meet. But on neither branch of this principle can any particular procedure (i) by which the party is informed of case which he has to meet or (ii) by which his evidence and argument are "heard", be regarded as fundamental. I have virtually borrowed the language from the statement at pages 79-80 in the report of the Committee on Ministers' Powers presented by the Lord High Chancellor to the British Parliament in the year 1932.
In the absence of any regulations having been framed by the University prescribing the procedure to be followed in such cases, it can certainly prescribe and follow its own procedure so long as the fundamental rule mentioned before is complied with. It may be that it will obviate a good deal of difficulty both for examinees or other persons against whom charges of misconduct are preferred and the University authorities if a proper procedure is prescribed by appropriate regulations but so long as that is not done, in each case it will have to be determined on its facts whether the basic requirements Page 19 of 30 and principles of the rule of natural justice have been satisfied and followed.
(16) I venture to sum up the position in cases of the present kind in this way. An examinee must be adequately inform of the case he has to meet and given a full opportunity of meeting it. As to what the extend and contend of that information should be or ought to be would depend on the facts of each case. It is always open to the examinee to ask for more information or details with regard to the material or evidence which may be sought to be used against him and normally if he makes a request in that behalf, the University authorities, in order to inform him adequately of the case he has to meet as also to afford him proper opportunity of presenting his case, would supply him the necessary particulars or details of the evidence. This situation may arise at any stage i.e. at the time when information is given of the charge or the allegation or even at a later stage when the examinee has already furnished the explanation."
18. However, it has been also observed in Ramesh Kapur (supra) that whether the rule of natural justice has been complied with by the university authorities by affording an adequate opportunity to a candidate to present his case against the charge or allegation made against him will depend on the fact and circumstances of each case. If the right of a candidate to be heard is to be a reality he must know the case which he has to meet and if he asked the University authorities to supply him the necessary details of such material or evidence on which the case against him is based, any refusal to do so will prima facie be violative of the rule of natural justice.
19. Gauhati High Court in Tribendralal Choudhury v. Gauhati University and others reported in AIR 1983 Gauhati 73 had occasion to observe in the backdrop of non-furnishing of the report against conduct as under:
"20. On the basis of the records of the case, it cannot be said that the petitioner was charged for adopting unfair means, or that he was given adequate opportunity to meet such a charge. He was not furnished a copy of the Principal's report. As regards the allegation of his assault of the invigilator, in face of clear and categorical denial by Page 20 of 30 the petitioner in his cause shown to the charge, it was reasonably necessary consistently with principles of natural justice to institute an enquiry by an appropriate domestic body performing quasi-judicial function, inasmuch as civil right of the petitioner was involved. It is admitted that no such enquiry was held. On the other hand, what is stated is that what was done by the Principal, when the petitioner appeared before him (Principal) with his father gave him the opportunity to defend himself. That was, however, before the charge was intimated to the petitioner and, as such, it can by no means be regarded as an opportunity given to the petitioner to state his case and defend himself against the charge and the proposed penalty. There is, therefore, clear violation of the principles of natural justice, and under the circumstances, even though we are conscious of the state of the law, namely, that the University is empowered to cancel examination and take disciplinary measures in appropriate cases, and that in writ jurisdiction we are not sitting in appeal above the decision of the University; we are constrained to hold that in view of the clear violation of the principles of natural justice, by not affording reasonable opportunity of being heard, the impugned order cancelling the petitioner's examination and debarring him from appearing in examination of the next two years cannot be sustained. We accordingly hold that the impugned order is null and void and quash the order by a writ of certiorari and by a writ of Mandamus we command the University authorities to declare the petitioner's result forthwith; and in case the petitioner is declared to have failed in his examination, he shall be allowed to appear in the ensuing examination. It is stated at the Bar that the next examination is scheduled to be held from 19-3-82. The petitioner shall be allowed to appear in that examination on his payment of necessary fees under the Rules, irrespective of whether the last date for making application to appear is over or not. By our earlier order we directed that the result of the petitioner be sent to this Court under sealed cover. We have received the same as produced by the learned counsel for the University. The same is returned to the learned counsel for the University in the same sealed state to be returned back to the Deputy Registrar (Examination) for doing the needful in compliance with this court's order."
20. In Sachin Agarwal v. State of UP and another reported in AIR 1999 All. 157 it has been held by Allahabad High Court as under:
"11. ......................... Cancellation of the result of students on the ground of use of unfair means by them may be held to be unjustified if there is no material to reach such a conclusion. The procedure to be adopted before cancellation of result has to be in conformity with the rules of natural justice and the procedure prescribed.Page 21 of 30
There may be cases where the requirement of the principles of natural justice may be fulfilled if an opportunity to submit the explanation is afforded and, in this connection, reference may be made to the decisions of the Supreme Court reported in AIR 1962 SC 1110:
(1962 All LJ 776); Board of High School and Intermediate Education v. Ghanshyam and AIR 1970 SC 1039; Board of High School, U. P. v. Chitra Srivastava as well as (1991) 2 SCC 726 (sic); Maharashtra State Board of Secondary and Higher Secondary v. A. S. Gandhi. The Board in cancelling the examination exercises quasi judicial function and it is incumbent upon it to issue a show cause notice to the candidate before inflicting the penalty of cancellation. It would be wrong to withhold the result without giving an opportunity to the student concerned and also to adduce evidence-oral or documentary, at the enquiry."
21. In Joyanti Prasad Dwivedi v. University of Allahabad and others reported in AIR 2000 All. 265 it was held that when neither any charge-sheet was given nor any show cause notice was served to the candidate, the action without such observance was violation of principles of natural justice. Mr. Bhattacharya, learned senior counsel has placed his reliance on Ram & Shyam Company v. State of Haryana and others reported in AIR 1985 SC 1147 to contend that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction as an effective and adequate alternative remedy. But often it has been expressly stated that the rules which require the exhaustion of alternative remedy is a rule of convenience and discretion, rather than rule of law. At any rate it does not oust the jurisdiction of the court. In Ram & Shyam the apex court has observed as under:
"9. Before we deal with the larger issue, let me put out of the way the contention that found favour with the High Court in rejecting the writ petition. The learned Single Judge as well as the Division Bench recalling the observations of this Court in Assistant Collector of Central Excise v. Jainson Hosiery Industries rejected the writ petition observing that 'the petitioner who invokes the extraordinary jurisdiction of the court under Art. 226 of Page 22 of 30 the Constitution must have exhausted the normal statutory remedies available to him'. We remain unimpressed. Ordinarily it is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. In fact in the very decision relied upon by the High Court in The State of Uttar Pradesh v. Mohammad Nooh it is observed that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the in stance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits. Look at the fact situation in this case. Power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purposes by the Chief Minister of the State. To whom do you appeal in a State administration against the decision of the Chief Minister ? The clutch of appeal from Ceasar to Ceasar wife can only be bettered by appeal from one's own order to oneself. Therefore this is a case in which the High Court was not at all justified in throwing out the petition on the untenable ground that the appellant had an effective alternative remedy. The High Court did not pose to itself the question, who would grant relief when the impugned order is passed at the instance of the Chief Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister. There was no answer and that by itself without anything more would be sufficient to set aside the judgment of the High Court."
22. Further, Mr. Bhattacharya, learned senior counsel made reference to Union of India and another v. State of Haryana and another reported in (2000)10 SCC 482 where the challenge was that since there was an alternative remedy in the form of the statutory appeal, the writ petition would not lie. It was observed in Union of India v. State of Haryana that the matters should not be dismissed suggesting an alternative remedy. It has been further held there as follows:
Page 23 of 30
"The question raised was pristinely legal which required determination as to whether provision of telephone connections and instruments amounted to sale and even so why was the Union of India not exempt from payment of sales tax under the respective statutes. The respondents counter such stance. We think the question raised was fundamental in character and need not have been put through the mill of statutory appeals in the hierarchy."
23. In the course of submission, Mr. Bhattacharya, learned senior counsel has referred to the celebrated decision of the apex court in A. K. Kraipak and Ors. V. Union of India (UOI) and Ors. reported in AIR 1970 SC 150 to lay stress on the aim of rules of natural justice. Natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. Those rules can operate only in areas, not covered by any law validly made. In other words, they do not supplant but supplement. In A. K. Kraipak (supra) the apex court approvingly reproduced Queens Bench (QB) decision in re :
H.K. (An Infant) [1967] 2 Q.B.617 where Lord Parker, C. J. spoke inter alia as under:
"That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances or any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially."
24. In A. K. Kraipak (supra) the apex court has succinctly observed that beyond the two conventional rules viz. Nemo debet esse judex propria causa and audi alteram partem, a third rule is envisaged Page 24 of 30 that quasi-judicial inquiries must be held in good faith, without bias and not arbitrarily or unreasonably. Till very recently the opinion of the court was that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. In Suresh Koshi Jeorge v. University of Kerala and Ors. reported in (1969) 1 SCR 317 it has been observed that an unjust decision in an administrative inquiry may have more far reaching effect than a decision in a quasi-judicial inquiry.
25. Mr. S. Deb, learned senior counsel appearing for the University-respondents has restated the position taken by the respondents in their reply while traversing the averments made by the petitioner in the writ petition. Mr. Deb, learned senior counsel has submitted that the allegations as made in the writ petition are far- fetched. The expulsion notice was published in the notice board in due course and hence the petitioner cannot claim that he was not supplied with the expulsion notice dated 19.02.2014. That apart, Mr. Deb, learned senior counsel has submitted that even though in the notice dated 03.04.2014 no detail charge was described but it has been clearly stated that the petitioner was to appear before the Discipline Committee "In connection with a charge against you for breach of conduct/discipline in the Ph.D. Course Work Examination, 2014 held on 19th February, 2014." That notice was given for justification, if any, to be given by the petitioner in his defence. Mr. Deb, learned senior counsel did not dwell upon the allegation that the petitioner did not have any access to the materials based on which the resolution dated 09.04.2014 (Annexure-6 to the writ petition) was adopted by affirming Page 25 of 30 the expulsion and debarring the petitioner from appearing in the Ph.D. Course Work Examination, 2014 from any department of Tripura University for three years from 2014. Mr. Deb, learned senior counsel has further submitted that the petitioner could not demonstrate any prejudice that he had suffered for non-inclusion of the Dean of Students‟ Welfare and the Proctor. Inclusion of the hostel warden is required only when the conduct is related to hostel. Moreover, the petitioner without any demur appeared before the said committee and made his submission.
26. Mr. Deb, learned senior counsel has emphatically submitted that the materials those were considered against the petitioner being of unimpeachable character, even if their access was given to, the final outcome would not have been different. The petitioner has raised all available objections and those were duly considered by the Discipline Committee and hence the allegation of violating the principles of natural justice would invariably fall through. Mr. Deb, learned senior counsel has relied on a decision in the University of Ceylon v. E.F.W. Fernando reported in (1960) 1 All ER 631 where Lord Jenkins, J has spoke as follows:
"29. Turning now to the actual terms in which the Vice- Chancellor is invested with the quasi-judicial function here in question, it is to be observed that all that clause 8 provides is that where the Vice-Chancellor is satisfied that any candidate has acquired knowledge of the nature or substance of any question or the content of any paper before the date and time of the examination "the Vice- Chancellor shall report the matter to the Board of Residence and Discipline" The clause is silent as to the procedure to be followed by the Vice-Chancellor in satisfying himself of the truth or falsity of a given allegation. If the clause contained any special directions in regard to the steps to be taken by the Vice-Chancellor in the process of satisfying himself he would, of course, be bound to follow those directions. But as no special form of procedure is prescribed it is for him to determine the procedure to be followed as he thinks best, but, to Page 26 of 30 adapt to the present case the language of the judgment of this Board in De Verteuil v. Knaggs (supra) at page 560, subject to the obvious implication that some form of inquiry must be made such as will enable him fairly to determine whether he should hold himself satisfied that the charge in question has been made out."
27. Having referred to a decision of the apex court in Reliance Airport Developers (P) Ltd. v. Airports Authority of India & Ors. reported in (2006) 10 ACC 1 it has been contended that discretion, judicial, has a certain latitude or liberty accorded by statute or rules to a Judge as distinguished from the ministerial or administrative officials, in adjudicating on matters brought before him. The use of the word „judicial‟ limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious or exempt from review. But the presence of the word „discretion‟ permits the Judge to consider as a Judge, what are vaguely termed, all the circumstances of the case and the purpose for which is invested with the consideration of convenience or utility or saving of expense rather than on consideration of strict law or technicalities. According to Mr. Deb, learned senior counsel the process that has been followed in absence of any rules or guidelines has even discarded unguided discretion. Therefore, there is no infirmity in the process.
28. Having appreciated the records, averments and submission as advanced by the counsel for the parties, this court at the threshold would observe that there was no formal seizure of the objectionable materials even on the seized materials the Invigilator who seized that material (a slip of paper) did not put any mark by his signature. Further, it is an admitted position that the expulsion notice was not served individually on the petitioner. It has been nowhere recorded in the pre-inquiry paper that the notice was placed in the notice board. It Page 27 of 30 is also an admitted position that the materials were withheld from the petitioner and he had no access to those materials at any point of time. Even no reason assigned in the resolution/decision dated 09.04.2014 against the objections raised by the petitioner, although the objections are noted in the said resolution dated 09.04.2014. So far the formation of the Discipline Committee is concerned there is deviation from the prescription of the Ordinance. However, this court would not restrict its consideration on technicalities and as such even though, there is infraction but on taking a broader campus the consequential impact for non-formation of the Discipline Committee in terms of the Ordinance is not given the primacy.
29. De Smith in his celebrated treaty, „Judicial Review‟ (8th Edition) while dwelling on consequence of following the flawed procedure has observed as under:
"The consequence of non-compliance with a statutory requirement for fair procedure should be derived from the legislator's intention, which should be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. Where the procedure followed by the decision-maker is found to be flawed it will usually, but not always, be appropriate to quash the decision. If a decision-maker can demonstrate to the court that the same decision would have been reached even if consultation had been carried out properly, the court may exercise its discretion to withhold a remedy."
Here the case is different. It is not a case where on access, the tangible result would have been same. But in this case there is no statutory prescription in respect of the procedure. But the procedure that has been followed whether had given the fair opportunity to the petitioner is the sub-stratum of the entire controversy as projected by the petitioner. Even where the discretion is applied in absence of any laid down procedure, the discretion shall apply in general is the Page 28 of 30 discernment of what is right and proper. It denotes knowledge and prudence that discernment which enables a person to judge critically of what is correct and proper united with caution, nice discernment and judgment directed by circumspection deliberate judgment, soundness of judgment, a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affection of persons. Even if the merit of decision is left out from the domain of consideration this court is constrained to observe that there was serious violation of natural justice by the respondents as the petitioner was not given any notice, access to the materials as used against him and not providing any reason against the objection as raised by the petitioner, the reference was disposed.
30. Let us for a while look back to the proceeding Minutes of the meeting of the Discipline Committee held on 09.04.2014. The extract of the Minutes as noted below, would demonstrate that all the materials used against the petitioner were withheld from the petitioner. It is apparent that the petitioner had at least no knowledge of those materials prior to attending the meeting held on 09.04.2014. Such denial of access to the materials which were used against him is a flagrant and serious violation and hence it has vitiated the entire process.
"The sealed Answer Script which was seized from Sri Prakesh Chandra Biswas was opened in front of the members of the Discipline Committee alongwith the Notice of expulsion issued by Prof. Satyadeo Podder, Coordinator. A strip/slip of paper was found attached with the Answer Script. It was reported by the invigilator (on the answer script) that the candidate was found cheating and adopting unfair means in the Examination Page 29 of 30 Hall by copying from the enclosed slip of paper and he was caught redhanded at about 2.30 pm on 19th February, 2014."
31. This court has further observe that even there is no observation in the resolution dated 09.04.2014 (Annexure-6 to the writ petition) that the slip which was used against the petitioner is relatable to any answer given by the petitioner. Moreover, there is no mark in the seized slip vouched by the Invigilator. Even though the petitioner has appeared before the Discipline Committee but the act of appearance itself cannot estop the petitioner from challenging the action of the Discipline Committee, which is tainted for non-observance of the Code and for violation of principles of natural justice.
32. So far the objections raised in respect of maintainability of the writ petition is concerned, this court is of the view that when the principles of natural justice are grossly violated in absence of any statutory rules and in view of the law enunciated in this regard this court would not entertain this objection in the circumstances of this case. The respondents even did not respond to the averments of the petitioner in the rejoinder that there was no existence of the Executive Council at the relevant point of time to prefer the appeal before it. Thus, the impugned decision dated 09.04.2014 contained in the resolution of the Disciplinary Committee (Annexure-6 to the writ petition) is set aside along with the order of the expulsion as issued by the respondent No.8. In the ordinary course, this court would have taken recourse of remitting the matter back for reconsideration by the Discipline Committee, but in the meanwhile more than three years, the period for which the petitioner had been debarred from appearing in Page 30 of 30 the Ph.D. Course Work Examination, has elapsed and hence if the matter is remitted, the petitioner would suffer unfathomable prejudice.
33. In terms of what has been observed above, this writ petition stands allowed to the extent as indicated above.
No order as to costs.
JUDGE MB