Board Of High School & Intermediate ... vs Ghanshyam Das Gupta And Others on 6 February, 1962
"If, on the report by the Vigilance Squad that there had been mass copying or malpractice in the examination hall concerned, the University had proceeded to cancel the performance of all the candidates who took examination in that hall without reference to any individual students, and to hold a fresh examination in the subject concerned for all such students, the contention of the learned Counsel for the University would have been unexceptionable in view of the ratio of the Judgment of the Supreme Court in BOARD OF HIGH SCHOOL v. GHANSHYAM . But in the present case, what the University had done was not the cancellation of the performance of all the students at the examination on the ground that there had been a report of mass malpractice but the action was taken against 38 candidates individually in that charge memo was served on each of them and they were called upon to appear before the Mal-practices Enquiry Committee and they were interrogated by the Committee and thereafter the Committee submitted its report recording a finding that 28 of them committed malpractice and 10 did not. That report was accepted by the Vice-Chancellor and orders were passed. Though the names of all the 28 students are set out in the same communication, it is an order passed against each of the students. Each of the students is found guilty of malpractice and the penalty imposed is cancellation of performance of the particular examination. It is a fundamental rule of natural justice that no person can be found guilty of any charge or no order can be passed which has got evil or civil consequences unless it is preceded by the holding of an enquiry in that giving full opportunity to defend himself by adducing evidence in support of the charge before the authority holding the enquiry and giving full opportunity to the person against whom an enquiry is being held to cross-examine the witnesses who gave evidence against him or giving opportunity to cross-examine the persons who had made report against him. All these safeguards are incorporated in the Ordinance framed by the University for holding an enquiry. It is not disputed that in these cases no enquiry in accordance with the said ordinance had been held. This is also the finding recorded by the learned single Judge. But the contention of the learned Counsel for the appellants is that this was a case where no individual enquiry was necessary. We are unable to agree. This is a case in which the University has found each of the students guilty of malpractice and on that basis imposed penalty of cancellation of the performance of the examination against each of the students. An exactly similar situation was considered by this Court in W.P.No. 1502 of 1979 and connected cases in which the Karnataka University had imposed penalty against as many as 30 students without holding an enquiry on the ground that there was a report about mass-copying. In that case, also the University relied on the Judgment of the Supreme Court in which the Supreme Court has held that for cancellation of examination on any ground, the principles of natural justice would not be applicable. That case was distinguished by this Court and pointed out that if the University had proceeded to cancel the performance of all the students in any particular examination centre and decided to hold re-examination, the question of applying rules of natural justice does not arise because the power of the University to hold the examination necessarily includes the power to cancel the performance of the entire examination and to hold re-examination if the given situation demands such a course of action. On this reasoning, orders impugned in the said Writ Petition were quashed. The position is not different in these cases. Therefore, we respectfully agree with the view taken by the learned single Judge."