1
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K.LAKSHMAN
+ WRIT PETITION NOs.42467, 42437 AND 43364 OF 2022
% Delivered on:05.01.2023
W.P.No.42467 of 2022
Between:
# Sampath Karthikeya Busa
and another ..Petitioners
Vs.
$ University Grants Commission
And others .. Respondents
W.P.No.42437 of 2022
Between:
# Gaurav Daga and another ..Petitioners
Vs.
$ Govt.of India Ministry of Education
And two others .. Respondents
W.P.No.43364 of 2022
Between:
# Saif Ali Khan ..Petitioner
Vs.
$ State of Telangana rep.by
Its principal Secretary, Hyderabad
and three others .. Respondents
! For Petitioners : Sri A.Venkatesh,
Sri Pramod Singh and
Smt. Sowjanya Yadav,
^ For Respondents : Smt. Megha Rani Agarwal,
Ld.St.Counsel for University Grants
Commission,
Ld.Govt.Pleader for Higher
Education
Sri P.S.S.Kailashnath,
Ld.Counsel appearing for ICFAI
Foundation for Higher
Education/ICFAI University
2
< Gist :
> Head Note :
? Cases Referred :
1. (2015) 16 SCC 530.
2. (2020) 10 SCC 670.
3. AIR 1991 SC 271.
4 1962 Supp (3) SCR 36.
5. 2002 SCC OnLine AP 126.
6. (2019) 16 SCC 303.
7. 2022 SCC OnLine SC 1091.
8. (1969) 1 SCC 585
9. (1989) 2 SCC 691
10. (2005) 6 SCC 657.
11. (2015) 4 SCC 670.
12. 1994 SCC OnLine Ker 73.
3
HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION NOs.42467, 42437 AND 43364 OF 2022
COMMON ORDER:
The present writ petitions arise out of the same set of facts.
Therefore, the writ petitions are disposed of vide the following
common order.
2. Heard Sri A.Venkatesh, Sri Pramod Singh and Smt.
Sowjanya Yadav, learned counsel for the petitioners and Smt. Megha
Rani Agarwal, learned standing counsel appearing for University
Grants Commission, learned Government Pleader for Higher
Education and Sri P.S.S.Kailashnath, learned counsel appearing for
ICFAI Foundation for Higher Education/ICFAI University. Perused
the record.
3. For the sake of convenience, the description of the parties in
the present order is according to W.P. No. 42467 of 2022.
Facts of the case in W.P. No. 42467 and 42437 of 2022:-
4. The case involves suspension of Petitioners herein from
Respondent No. 2 University (ICFAI University) on the alleged
ground of misconduct and indiscipline. An alleged ragging incident
4
took place in Respondent No. 2's campus wherein a first-year law
student was assaulted by a group of senior students from the business
management college of Respondent No. 2.
5. According to the Petitioners, they supported the student who
was subjected to ragging by reporting the said incident to the
authorities. Later, the victim of ragging filed a complaint with
Shankarpally Police Station and on 11.11.2022, a crime bearing FIR
No. 506 of 2022 was registered for the offences under Sections 307,
323, 450, 342 and 506 read with 149 of IPC, and Sections 4(i) 4(ii)
4(iii) of Telangana Prohibition of Ragging Act, 1997 against the
people involved in the alleged ragging.
6. Subsequently, the father of one of the accused in FIR No. 506
of 2022 lodged a complaint against the Petitioners herein and the said
complaint was registered as FIR No.508 of 2022 dated 12.11.2022 for
the offences under Sections 342, 324 and 506 of IPC. In the said
complaint, it is alleged that on 03.11.2022, the Petitioners herein
physically assaulted and injured the complainant's son and his two
friends.
7. Based on the registration of FIR No.508 of 2022, Respondent
No. 2 issued orders of suspension dated 18.11.2022 under Rule 7 (iii)
5
r/w Rule 9 of the IFHE Students' Conduct and Discipline Rules, 2019
(hereinafter referred to as 'Rules'). Vide the said suspension orders,
the Petitioners herein were immediately suspended from the class/
department/college/hostel/mess/library/lab and from availing any
other facility until further notice. Therefore, the Petitioners have
challenged suspension orders dated 18.11.2022 and sought that the
same be set aside.
8. Contentions of the Petitioners: -
i. Respondent No. 2 is a deemed to be university under Section 3
of the University Grants Commission Act, 1956 (hereinafter
'the Act, 1956'). It performs a public function of imparting
education. Therefore, the present writ petitions are
maintainable. Reliance was placed on Janet Jeyapaul v.
SRM University1.
ii. The Petitioners could not have been suspended on the ground of
mere registration of FIR. Reliance was placed on Ankita
Kailash Khandelwal v. State of Maharashtra2.
1
(2015) 16 SCC 530.
2
(2020) 10 SCC 670.
6
iii. The FIR against the Petitioners was registered as a counterblast
to FIR registered against the accused of ragging in FIR No.
506 of 2022.
iv. Respondent No. 2 unilaterally suspended the Petitioners herein
without following the principles of natural justice. No
disciplinary committee under Part V of the Rules was
constituted and no opportunity of hearing was granted.
Reliance was placed on Board of Technical Education,
U.P. v. Dhanwantri Kumar3,Board of High School &
Intermediate Education v. Ghanshyam Das Gupta4 and
Jiby P. Chacko v. Principal, Mediciti School of Nursing,
Ghanpur, Ranga Reddy District5.
9. Contentions of Respondent No. 2
i. The present writ petitions are not maintainable as Respondent
No. 2 is a private body and does not fall within the definition
of 'State' under Article 12 of the Constitution of India.
ii. Further, the writ petition is not maintainable as suspension of
the students was for individual actions and not in discharge
3
AIR 1991 SC 271.
4
1962 Supp (3) SCR 36.
5
2002 SCC OnLine AP 126.
7
of any public duty. No public function was being performed
by Respondent No. 2 while passing the impugned
suspension orders. Reliance was placed on Ramakrishna
Mission v. Kago Kunya6 and St. Mary's Education
Society v. Rajendra Prasad Bhargava7.
iii. The orders of suspension were passed under Rule 7 (iii) r/w
Rule 9 of the Rules which permit suspension of students
pending enquiry or pending trial.
iv. No opportunity of hearing is provided in the Rules for
suspension under Rule 7 (iii) r/w Rule 9 of the Rules. Under
Rule 10 of the Rules opportunity of hearing is only available
in cases of penalties under clauses (vii), (viii), (ix), (x) and
(xi) of Rule 7.
Facts of the case and contentions of Petitioner in W.P. No.
43364 of 2022:-
10. The abovesaid victim of ragging in FIR No. 506 of 2022 in
his complaint to Respondent No. 2 authorities named the Petitioner in
W.P. No. 43364 of 2022. Thereafter, a Disciplinary Committee was
constituted on 05.11.2022 and the Disciplinary Committee submitted
6
(2019) 16 SCC 303.
7
2022 SCC OnLine SC 1091.
8
its report and the Petitioner was expelled from the University with
immediate effect. Subsequently, the Petitioner preferred an appeal
before the Vice-Chancellor against the order of expulsion passed by
the Disciplinary Committee.
11. The Petitioner has filed the present writ petition stating that
he has no role to play in the alleged incident of ragging. He contends
that the Disciplinary Committee did not issue any notice and grant an
opportunity of hearing to the Petitioner. The Petitioner also contends
that the action of Respondent is illegal, arbitrary and high-handed. The
Petitioner prays that he be allowed to attend online classes at the
Respondent No.2/University and be permitted to write the semester
exams.
12. Contentions of the Respondent No. 2 in W.P. No.
43364 of 2022
i. The writ petition is not maintainable.
ii. A Disciplinary Committee was constituted and the Petitioner
participated by submitting a representation dated
07.11.2022. The said committee conducted due enquiry and
submitted its report. Based on the said report, the Petitioner
9
was expelled. Further, the Petitioner has already preferred an
appeal before the Vice-Chancellor.
iii. The Petitioner has not specifically challenged the order of his
suspension.
Findings of the Court:-
13. From the facts and contentions of the parties, the following
issues fall for consideration before this Court:-
1. Whether a writ petition under Article 226 of the Constitution of
India is maintainable against a private educational institution
which is recognized as a deemed to be university by the
University Grants Commission?
2. Whether Respondent No. 2 was justified in suspending the
students without following the principles of natural justice?
Issue No.1:-
14. Before deciding the issue of maintainability, it is relevant to
note that the scope of High Court's power under Article 226 is very
wide. Relief under Article 226 is not restricted only to authorities that
fall within the definition of 'State' under Article 12.
15. The Supreme Court in Praga Tools Corpn. v. C.A.
Imanual8, held that Article 226 confers wide powers on the High
8
(1969) 1 SCC 585
10
Court to issue a mandamus even to a private body performing a public
duty. The relevant paragraph of the judgment is extracted below:
6. In our view the High Court was correct in holding that the
writ petition filed under Article 226 claiming against the
company mandamus or an order in the nature of mandamus
was misconceived and not maintainable. The writ obviously
was claimed against the company and not against the
conciliation officer in respect of any public or statutory duty
imposed on him by the Act as it was not be, but the company
who sought to implement the impugned agreement. No
doubt, Article 226 provides that every High Court shall
have power to issue to any person or authority orders and
writs including writs in the nature of habeas corpus,
mandamus etc. or any of them for the enforcement of any
of the rights conferred by Part III of the Constitution and
for any other purpose. But it is well understood that a
mandamus lies to secure the performance of a public or
statutory duty in the performance of which the one who
applies for it has a sufficient legal interest. Thus, an
application for mandamus will not lie for an order of
reinstatement to an office which is essentially of a private
character nor can such an application be maintained to
secure performance of obligations owed by a company
towards its workmen or to resolve any private dispute.
(See Sohan Lal v. Union of India), [1957 SCR 738]
In Regina v. Industrial court [(1965) 1 QB 377] mandamus
was refused against the Industrial court though set up under
the Industrial courts Act, 1919 on the ground that the
11
reference for arbitration made to it by a minister was not one
under the Act but a private reference. "This Court has never
exercised a general power" said Bruce, J.
in R. v. LawishamUnion [(1897) 1 QB 498, 501] "to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties". Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. [Cf. Halsbury's Laws of England, (3rd ed.), Vol. II, p. 52 and onwards].
1216. Further, in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani9, the Supreme Court held that the phrase 'any person or authority' is wide enough to include non-statutory bodies which perform public duty. Further, the Court held that issuance of writ of mandamus does not depend on the identity of the body against which mandamus is sought, but depends on the nature of duty such body performs. If such body performs a public duty, then a writ is maintainable. The relevant paragraphs are extracted below:
17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The "public authority" for them means everybody which is created by statute -- and whose powers and duties are defined by statute. So government departments, local authorities, police authorities, and statutory undertakings and corporations, are all "public authorities". But there is no such limitation for our High Courts to issue the writ "in the nature of mandamus". Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". It can be issued "for the 9 (1989) 2 SCC 691 13 enforcement of any of the fundamental rights and for any other purpose".
***
20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. ***
22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." [ Judicial Review of Administrative Action, 4th 14 Edn., p. 540] We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available "to reach injustice wherever it is found". Technicalities should not come in the way of granting that relief under Article 226.We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.
Similar views were expressed by the Supreme Court in Ramakrishna Mission (supra) wherein the Court held that a writ petition under Article 226 is maintainable against a private body that performs a public function or discharges a public duty. However, the Court held that not all actions of private bodies discharging public functions are amenable to writ jurisdiction. As stated above, only actions that partake the character of a public function or a public duty are amenable to challenge under Article 226.
17. In a recent decision in St. Mary's Education Society (supra), the Supreme Court held that every dispute of a private body is not amenable to writ jurisdiction. The Court held that an action which has a public law element is amenable to writ jurisdiction. The relevant paragraphs are extracted below:
1535. It needs no elaboration to state that a school affiliated to the CBSE which is unaided is not a State within Article 12 of the Constitution of India [See : Satimbla Sharma v. St. Pauls Senior Secondary School [(2011) 13 SCC 760]. Nevertheless the school discharges a public duty of imparting education which is a fundamental right of the citizen [See : K.
Krishnamacharyulu v. Sri Venkateshwara Hindu College of Engineering, (1997) 3 SCC 571]. The school affiliated to the CBSE is therefore an "authority" amenable to the jurisdiction under Article 226 of the Constitution of India [See : Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657]. However, a judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only if there is a public law element and not to enforce a contract of personal service. A contract of personal service includes all matters relating to the service of the employee - confirmation, suspension, transfer, termination, etc. [See : Apollo Tyres Ltd. v. C.P. Sebastian, (2009) 14 SCC 360].
****
38. This Court in Janet Jeyapaul v. SRM University, reported in (2015) 16 SCC 530 : (2015) 13 Scale 622, held that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy, not only under the ordinary law, but also by way of a writ petition under Article 226 of the Constitution. In the case of Binny Ltd. (supra), this Court held that the Article 226 of the Constitution is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a 16 public function and that the decision sought to be corrected or enforced must be in the discharge of public function.
69. We may sum up our final conclusions as under:--
(a) An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.
(b) Even if it be assumed that an educational institution is imparting public duty, the act complained of must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of "State" within the expansive definition under Article 12 or it was found that the action complained of has public law element.
(c) It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a 17 Constitutional Court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot be recognized as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.
(d) Even if it be perceived that imparting education by private unaided the school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether "A" or "B" is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be 18 interfered by the court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.
(e) From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of mandamus cannot be issued as the action was essentially of a private character.
18. From the above decisions, it is clear that a writ petition against a private body performing a public function is maintainable, provided the action of such private body has some public law element involved. In other words, only actions performed by private bodies in discharge of a function having a public law character is amenable to writ jurisdiction. Therefore, a writ petition under Article 226 is maintainable if the private body performs a public function and the impugned action shall fall within the ambit of public law.
19. This raises a question what constitutes a public function or public duty. The Supreme Court in Binny Ltd. v. V. Sadasivan10 held that public functions are those which are similar to the ones performed by the State in its sovereign capacity. Further, a public function is a 10 (2005) 6 SCC 657.
19function performed for the collective benefit of the society. The relevant paragraphs are extracted below:
11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions.
Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. Abody is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial 20 Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3, para 0.24, it is stated thus: "A body is performing a 'public function' when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides 'public goods' or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including rule making, adjudication (and other forms of dispute resolution); inspection; and licensing. Public functions need not be the exclusive domain of the State. Charities, self-regulatory organisations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson, M.R. urged, it is important for the courts to 'recognise the realities of executive power' and not allow 'their vision to be clouded by the subtlety and sometimes complexity of the way in 21 which it can be exerted'. Non-governmental bodies such as these are just as capable of abusing their powers as is Government."
20. Now coming to the facts of the case, Respondent No. 2 is involved in imparting education. Education is a service having a public character and right to education is recognised as a constitutional right. Imparting education, no doubt, is for the collective good of the society. Therefore, Respondent No. 2 discharges a public function by imparting education.
21. As stated above, mere discharge of public function by a private body is not enough to maintain a writ petition under Article
226. The impugned action of the private body shall involve a public law element and must not be in the nature of private law involving individuals. In the present case, the question would be whether the action of Respondent No. 2 in suspending the Petitioners herein has a public law element.
22. In K.K. Saksena v. International Commission on Irrigation & Drainage11, the Supreme Court held that private law deals with individual relationships like contracts or torts which have a 11 (2015) 4 SCC 670.
22separate enforcement mechanism. The relevant paragraphs are extracted below:
43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is "State" under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.
44. Within a couple of years of the framing of the Constitution, this Court remarked in Election Commission of India v. Saka Venkata Rao [Election Commission of India v. Saka Venkata Rao, AIR 1953 SC 210] that administrative law in India has been shaped in the English mould. Power to issue writ or any order of direction for "any other purpose" has been held to be included in Article 226 of the Constitution with a view apparently to place all the High Courts in this country in somewhat the same position as 23 the Court of the King's Bench in England. It is for this reason ordinary "private law remedies" are not enforceable through extraordinary writ jurisdiction, even though brought against public authorities (see Administrative Law, 8th Edn., H.W.R. Wade and C.F. Forsyth, p. 656). In a number of decisions, this Court has held that contractual and commercial obligations are enforceable only by ordinary action and not by judicial review.
23. As stated above, the public function/duty performed by Respondent No. 2 is imparting education to students. If any action of an educational institution effects the right to education of a student, it partakes a public law element as imparting education is a public law function. Students who are suspended by a private educational institution from attending classes and who challenge such suspension under Article 226 stand on a different footing than that of private individuals involved in private disputes like breaches of contract or commission of offences. Students and their right to education is central to any educational institution. Any action effecting their right to education involves a public law element. Such action should be the one which directly effects the students and their education. The students can challenge such action and its validity thereof. The courts can decide whether such action was valid, justified and reasonable in light of the facts of the case and the applicable rules of the university.
2424. In the present case, Respondent No. 2 performs a public function. It suspended the Petitioners herein indefinitely with immediate effect on the ground of registration of FIR. The action of suspension directly effects the Petitioners' education and such suspension involves a public law element. Therefore, the present writ petition is maintainable.
Issue No.2:-
25. As stated above, the Petitioners herein contend that they were suspended without any opportunity of hearing or show-cause notice which violates principles of natural justice. Respondent No. 2 contends that the Rules do not contemplate following principles of natural justice. Therefore, it is apposite to extract the relevant Rules under which the Petitioners were suspended:
4. Acts of Indiscipline and Misconduct: Any act of misconduct committed by a student shall be an act of violation of discipline of the University. Without prejudice to the generality of the foregoing provision, violations of the discipline shall include:
(i) Disruption of teaching, student examination, research or administrative work, curricular or extra-curricular activity or residential life of the members of the University, including any attempt to prevent any member of the University or its staff from carrying on his or her work; and any act reasonably likely to cause such disruption.
(ii) Use of unfair means or malpractices in examination. Any of the following events (inclusive but not exhaustive) shall constitute "unfair" practice(s) during examinations:25
a. Possessing unauthorized material like notes, small slips in pockets, on the body, or, in any other form, like cell phones, vanity bags and purses, whether used or not.
b. Copying from other students.
c. Allowing/enabling other students to copy from one‟s paper.
d. Taking or giving any kind of assistance to other students.
e. Communicating with the students in or outside the examination hall duringexamination time.
f. Referring to any notes, slips or other sources in the wash room.
g. Visiting any place other than wash room during examination.
h. Indiscipline and disruptive conduct.
i. Resorting to any other unfair means to cause or obtain advantage
(iii) Damaging or defacing University property or the property of members of the University or any other property inside or outside the University campus.
(iv) Engaging in, or any attempt, at, wrongful confinement of teachers, offices, employees and students of the University, or camping inside and creating nuisance inside the boundaries of houses of teachers, officers and other members of the University.
(v) Use of abusive and derogatory slogans or intimidating language or incitement of hatred and violence or any other act calculated to further the same.
(vi) Committing any act of cybercrime like damage or cause to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network; steal e-mail IDs and passwords of any person, impersonation, sending defamatory, objectionable and obscene 26 messages, mails etc., and any other act which is punishable under Information Technology Act, 2000 as amended from time to time and for the time being in force.
(vii) Ragging in any form.
Explanation: Anyone indulging in ragging is liable to disciplinary action including expulsion from the University in accordance with UGC Regulations on Curbing the Menace of Ragging in Higher Educational Institutions,2009 as amended from time to time and also liable for prosecution under the Andhra Pradesh Prohibition of Ragging Act, 1997 (as applicable to the State of Telangana ) and under other relevant laws. The relevant provisions of UGC Regulations on ragging are appended as Annexure-1 to these Rules.
(viii)Sexual Harassment: Sexual harassment in any form will be liable for action under University Grants Commission (Prevention and Redressal of sexual harassment of women employees and students in higher educational institutions) Regulations, 2015 and also liable to criminal prosecution under the relevant laws. The relevant provisions of UGC Regulations are appended as Annexure-2 to these Rules.
(ix)Discrimination on the basis of race, sex, sexual orientation, gender identity/expression, religion, caste, age, color, creed, nationality or ethnic origin, physical, mental or sensory disability and marital status is prohibited.
(x) An assault upon, or intimidation of, or insulting behavior towards a teacher,officer, employee or student or any other person.
(xi) Causing or colluding in the unauthorized entry/trespass of any person into the campus or in the unauthorized occupation/trespass of any portion of University premises, including hostels or residence, by any person.
27(xii) Getting enrolled in more than one course of study simultaneously in violation of the University rules.
(xiii) Committing forgery, tampering with or misuse of the University documents or records, identification cards etc.
(xiv) Furnishing false certificate or false information to any office under the control and jurisdiction of the University.
(xv) a. Procurement, possession, distribution and / or consumption of tobacco, cigarettes and alcohol in any form in the Campus or entering the campus in an inebriated condition shall constitute a serious misconduct.
b. Procurement, possession, distribution or use of narcotic drugs within the Campus shall constitute a very serious misconduct. Actions to be taken under these Rules are without prejudice to criminal prosecution under the Narcotic Drugs and Psychotropic Substances Act, 1985.
(xvi) Indulging in acts of gambling or carrying of beverages other than in sealed condition into the University premises.
(xvii) Possessing or using any weapons of offence, such as knives, Lathis, iron chains, iron rods, sticks, explosives and fire arms in the University premises.
(xviii) Arousing communal, caste or regional feelings or creating disharmony among students.
(xix) Not disclosing one‟s identity when asked to do so by an employee or officer of the University who is authorized to ask for identity.
(xx) Tearing of pages, defacing, burning or destroying of books of any library or seminar.
28(xxi) Unauthorized occupation of hostel, rooms or unauthorized acquisition or use of University furniture in one‟s hostel room or elsewhere. Day scholars are prohibited entry into hostel blocks/rooms. Day scholars shall leave the campus after academic hours, unless permitted by Faculty Coordinators for Student Club related activity/events in writing, under due intimation to Administration.
(xxii) Accommodating guests or other persons in hostels without permission of the Director/Dean/Addl. Registrar or Warden.
(xxiii)Any act of moral turpitude.
(xxiv)Any offence under law.
(xxv) Improper behaviour while on tour or excursion.
(xxvi) Pasting of posters or distributing pamphlets, handbills etc. of an objectionable nature or writing on walls and disfiguring buildings, and (xxvii) Violation of Research Integrity: Distorting research procedures by fabrication of data, generating and reporting fraudulent data or distortion of the research process in any other ways.
Plagiarism and unauthorized Stealing of Other‟s Intellectual Works: Plagiarism shows the stealing of another person‟s intellectual property which includes ideas, inventions, original works of authorship, words, slogans, designs, proprietary information, etc and misleading faculty members about the condition under which the work was prepared. Plagiarism in any form will also be liable under relevant laws and UGC regulations from time to time.
(xxviii) Any other act which may be considered by the Vice Chancellor or any other officer delegated in this behalf by the University to be an act of violation of discipline.
29Part III: Officers authorized to take disciplinary action
5. Without prejudice to the powers of the Vice-Chancellor as specified under the University Rules, the Registrar/ Director of all Faculties of the concerned Faculty/Administration is authorized to take disciplinary action in all academic matters and Director - Administration is authorized to take disciplinary action in all non-academic matters by way of imposing penalties as specified in part IV of these Regulations, based upon the findings of the Disciplinary Committee on the act of misconduct / indiscipline.
Part IV Penalties
7. Nature of Penalties: The following penalties may, for act of indiscipline or misconduct, be imposed on a student, namely:
i) Written warning and information to the parents/guardian.
ii) Fine of Rs.5,000/- which may extend up to Rs.25,000/-.
iii)Suspension from the Class/Department/College/Hostel/ Mess/Library/Lab or from availing of any other Facility.
iv) Suspension or cancellation of scholarships, fellowship or any financial assistance from any source or recommendation to that effect to the sanctioning agency.
v) Recovery of pecuniary loss/damage/destruction caused to University Property.
vi) Disqualification from placement process, or from holding any representative position in the Class/College/Hostel/Mess/Sports/ Clubs and in similar other bodies.
vii) Expulsion from the Department/ Faculty/ Hostel/ Mess/ Library/ Club for a specified period.
30viii) In case of malpractice and use of unfair means in examination; Cancellation of Student Registration for the Course/Program or non-registration for the subsequent semester along with any other punishment as may be decided.
ix) Issue of Transfer Certificate.
x) Permanent Expulsion from the University for Very Serious Misconduct.
xi) Disqualification from further studies, or prohibition of further admission or re-admission.
9. Any student against whom a serious charge of misconduct has been made may be suspended from the hostel/rolls of the University by the disciplinary authority mentioned at Para5, pending enquiry or pending trial on a cognizable offence by a court of law.
10. No penalty, provided in Clauses (vii), (viii), (ix), (x) and
(xi) of Rule 7, shall be imposed without due enquiry and without giving the student a reasonable opportunity of being heard. Penalties in certain cases of serious misconducts are specified in Annexure- 3 to these Rules.
Part V Constitution of Disciplinary Committee and Procedure for Disciplinary Action
12. A Disciplinary Committee shall be constituted by the Vice Chancellor for the purpose of inquiring and investigating into complaints of misconduct.
i) Three members nominated by the Vice Chancellor from a panel of twelve members (3 each from the Faculty of Science and Technology, Faculty of Management, Faculty of Law, and the Administrative wing)shall form quorum for each Disciplinary Committee, out of whom one member shall be from the Administrative Wing.
ii) The Disciplinary Committee will inquire/investigate into the complaint and submit a report not later than 15 working days of its constitution along with its findings, whether the concerned found 31 guilty or not, to the Registrar/Director/Dean of the Faculty/Administration to which the student belongs.
iii) The said Registrar/Director/Dean of the Faculty/Administration based on the report of the Disciplinary Committee, may take appropriate decision on penalty and communicate the same within a period of seven working days of the receipt of the aforesaid report.
iv) An appeal shall lie against the orders of the authorities mentioned in these Rules to the Vice-Chancellor, whose decision shall be final. The Appeal shall be preferred/submitted within 10 days from the date of Order passed by the concerned authority.
26. Rule 4 (xxiv) provides that any offence under law will be treated as indiscipline and misconduct. Further, Rule 7 provides for penalties and clause (iii) of the said Ruleprovides the power of suspension. Rule 9 states that a student charged with misconduct can be suspended pending enquiry or pending trial by the disciplinary authority. Rule 10 states that no penalty can be imposed under clauses
(vii), (viii), (ix), (x) and (xi) of Rule 7, unless an enquiry is conducted and a reasonable opportunity of hearing is granted.
27. Under Part V and Rule 12, a detailed mechanism is prescribed for constitution of a Disciplinary Committee and the mode and timeline within which investigation/enquiry should be completed.
28. Further, Rule 5 provides that Director Administration is authorized to take disciplinary action in all non-academic matters by 32 imposing penalties under Part IV (Rule 7) based on the findings of the disciplinary committee.
29. In the present case, the Petitioners were charged under Rule 4 (xxiv) as an FIR was registered against them. They were suspended pending enquiry under Rule 7 (iii) read with Rule 9.
30. It is relevant to note that Respondent No. 2 contends that it is not necessary to constitute a disciplinary committee and grant opportunity of hearing as hearing under Rule 10 is only granted before penalties under clauses (vii), (viii), (ix), (x) and (xi) of Rule 7 are imposed. It contends that since the penalty was imposed under Rule 7
(iii), no opportunity of hearing is required.
31. This Court cannot accept the contention of Respondent No.
2. It is relevant to note that in the matters of action pertaining to indiscipline by educational authorities, the principles of natural justice do not apply strictly. The application of principles of natural justice depends on the facts of the case and the effect of the impugned action.
32. Dealing with a case where a student was dismissed from the rolls of a school, a Division Bench of the Kerala High Court in 33 Headmaster, Poilkav High School, P.O. EdakkulamQuilandy v.
Murali A.12, held as follows:
9. Notwithstanding the above, the learned counsel for the first respondent reiterated the argument that there is violation of the principles of natural justice in that the delinquent pupil or his guardian did not get adequate opportunity to deny or defend the charges. The submission, in substance, appears to be that mere issuing of show cause notice and calling for explanation would not suffice. In other words the delinquent pupil or his guardian should have been heard before action was taken. This submission persuades us to examine the width and amplitude of the enquiry under Rule 6 while dismissing a delinquent pupil. The relevant portion of Chapter IX, Rule 6 is extracted below: "6. Suspension and dismissal:-- (1) Any pupil who is deliberately insubordinate or mischievous or guilty of fraud or malpractice in connection with examinations or who is found guilty of any other offence under these rules or who by his proved conduct is in the opinion of the Headmaster likely to cause an unwholesome influence on other pupils, may be, according to the degree of offence, censured, suspended or dismissed by the Headmaster. (The Headmaster of a Secondary School may also for adequate reasons impose fines on pupils studying in Standards VIII to X). In case of dismissal, a report shall be sent to the Educational Officer. An appeal from the dismissed pupil shall lie to the Educational Officer."12
1994 SCC OnLine Ker 73.34
A Division Bench of this court had occasion to consider this Rule 6 in A. Raghavan v. D.E.O. Attingal, 1971 Ker LT 658 : (AIR 1972 Kerala 108), wherein it is observed: "Rule 6 has a purpose, and that is to maintain discipline and order in a school: and from the language of the said rule, it does not appear that it is intended that, when a Headmaster takes action under this rule, the rules of natural justice should be followed strictly". The above rule did not contemplate an enquiry known to disciplinary action against a civil servant. It did not provide for the application of principles of natural justice either directly or impliedly. There is no express provision much less any indication in the Rule to hear the delinquent student or his guardian before passing the order of dismissal. Ordinarily the Headmaster need not conduct an enquiry which is not prescribed under the Rules. It may be because of his 'pivotal position' in maintaining discipline in the school. The duty of the Headmaster and Teacher in maintaining internal discipline is paramount. When they see any slightest threat to discipline, preventive measures are enforced eo-instanti. That necessarily obliterates the extravagence of a full-fledged enquiry. When the courts have recognized the power of the school master to inflict reasonable corporal punishment on erring pupil, the holding of a full enquiry for indiscipline appears to be out of place. The English law, no doubt, has recognized the above power of the school master for purpose of correction and enforcing discipline, in Regina v. Hopley, ((1860) 2 F & F 202), where Cockburn, C.J. observed: "By the law of England, a parent or a school master (who for this purpose represents the parent and has the parental authority delegated to him), may for the purpose of 35 correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable." This principle has been followed by the Indian courts. (See: Ganesh Chandra Saha v. Jiw Raj Somani, AIR 1965 Cal 32, Sankunni v. Venkataramani, AIR 1922 Madras 200, and G.B. Ghate v. Emperor, AIR 1949 Bombay 226. Without juxtaposing this trait in the teacher-student affinity, it may not be possible for this court to delineate amplitude of the proceeding in a dismissal of a student under Rule 6 and the applicability of right of hearing in such proceeding.
10. The Supreme Court in A.K. Kraipak v. Union of India, AIR 1970 SC 150, held that the rules of natural justice aims at securing justice or to prevent injustice. They operate only in the areas not covered by any law validly made. In Union of India v. J.N. Sinha, AIR 1971 SC 40, it was laid down that principles of natural justice do not supplant law but supplement it. If a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision of the principles of natural justice. In this view, the Supreme Court held in that case, the principles of natural justice cannot be read into Fundamental Rules and no opportunity can be given before compulsorily retiring an employee as that implication does not arise by reason of the express statutory language. Applying this ratio the Supreme Court in Union of India v. Ex Constable Amrik Sing, AIR 1991 SC 564, held that in cases of special enactments like Army Act all the principles of natural justice cannot be 36 imported. It further held that the same ratio will apply to a petition under S. 117(2) of the Border Security Force Act, 1968. It is also pointed out that Chapter XIII consisting of Rules 167 to 169 of the B.S.F. Rules deals with petitions filed under S. 117 of the Act and "even in them there is nothing to indicate that a hearing has to be given before disposal of a petition."
11. We do not find any reason to detract in extending ratio in Union of India v. J.N. Sinha, AIR 1971 SC 40 (supra), and Union of India v. Ex Constable Amrik Singh, AIR 1991 SC 564 (supra), to academic bodies like schools and colleges, where the prevalence of discipline is asseverated. It cannot therefore be said, opportunity of hearing to the delinquent student or his guardian is always an invariable attribute in a proceeding under. Rule 6. We are fully conscious of the position that "principles of natural justice are fundamental in he constitutional set up of this country"
(CharanlalSahu v. Union of India, (1990) 1 SCC 613 : (AIR 1990 SC 1480). However, the limitations and restrictions imposed by the Supreme Court in this regard on different occasions are reverberative. Once it said "the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature and jurisdiction conferred on the administrative authority, upon the character of the rights affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case" (Union of India v. P.K. Roy, AIR 1968 SC
850). In Maharashtra State Board of Secondary and Higher 37 Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716 : (1991 AIR SCW 879) (supra), the Supreme Court remarked "the applicability of the principles of natural justice is not a rule of thumb or straight jacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances." In a recent decision, Rattan Lal Sharma v. Managing Committee, (1993) 4 SCC 10 : (AIR 1993 SC 2155), the Supreme Court has approved the following observation of Tucker L.J. in Russell v. puke of Norfolk, (1949) 1 All ER 109 (C.A.), which is found to be very relevant on the point under discussion:
12. In cases where academic discipline is involved rule of hearing has always been construed strictly. It is not the indispensable facet of principles of natural justice. Such rule can be waived in situation where Headmaster or Principal is satisfied that the 'fairness' has been shown to delinquent student or his guardian before action is taken against him. Such satisfaction can be arrived at by the Headmaster or by the Principal depending on the facts of each case and attendant circumstances. Issue of a pre-decisional or show cause notice to the delinquent student or his guardian to explain the allegations would no doubt constitute 'fairness'. When such fairness is shown it is for the Headmaster or the Principal to decide any further opportunity is necessary in the facts of the case. But we can certainly visualise that even fairness to a delinquent would, in certain cases, cause more injustice than justice. Recently the Constitution Bench of the 38 Supreme Court made a very significant remark about the extension of the rule of natural justice while dealing with the question of furnishing enquiry report to a delinquent employee. It is contained in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 : (AIR 1994 SC 1074). There it is observed: "Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice." The Supreme Court in Karnataka Public Service Commission v. B.M. Vijayashanker, AIR 1992 SC 952, remarked: "Even though the procedure of affording hearing is as important as decision on merits yet urgency of the matter, or public interest at times require flexibility in application of the rule as the circumstances of the case and the nature of the matter required to be dealt may serve interest of justice better by denying opportunity of hearing.....". In that case the Karnataka Public Service Commission did not afford any opportunity to the candidates who appeared in competitive examinations to explain their bona fides and innocence in disobeying the instructions. But the Karnataka Administrative Tribunal issued directions to get the answer books of the candidates evaluated. These directions were challenged before the Supreme Court by the Public Service Commission and State of Karnataka. The orders of the Administrative Tribunal were set aside by the Supreme Court on the ground that facts of 39 the case justify the exclusion of the natural justice before taking any action in the matter.
33. In Jiby P. Chacko (supra), this Court held that not all disciplinary proceedings are quasi-judicial in nature and where students act errantly and action is taken against them, the same will termed as an administrative action requiring no compliance of natural justice. However, expulsion and rustication entail serious consequences, therefore, in such cases, principles of natural justice have to be followed. The relevant paragraphs are extracted below:
29. It is well settled that a student of a College or a School cannot be rusticated without following the principles of natural justice and without conducting enquiry. In Board of High School v. Ghanshyam, AIR 1962 SC 1110, a Statutory Board cancelled examination results of three candidates and debarred them from appearing at the examinations for one year. The charge against them was that they used unfair means in the examinations. The action was impugned as violating principles of natural justice which was upheld by the High Court. In appeal before the Supreme Court a Constitution Bench of the Supreme Court considered whether or not the College rules provide for 'audi alteram partem' when a student's examination is cancelled as the authority would be acting quasi-judicially principles of natural justice should be followed. It was laid down that:
......Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the 40 Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decisions of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast or, the Committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under Rule 1(1). We are therefore of opinion that the Committee when it exercises its powers under Rule 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.
31. In matters of student discipline all actions of educational institutions cannot be termed as quasi-judicial. The matters of domestic discipline where for non-compliance with curricular instructions or deviant student behaviour resulting in inconvenience to other students etc., the educational institution would only be acting administratively. However, in the matter of explusion or rustication, the same is not the case. This was explained in Glynn v. Keele University, (1971) 2 All. ER 89. The Vice-Chancellor of Keele University took disciplinary action against a number of students who are found standing or sitting naked in the University Campus by fining ten pounds and expelling them from the hostel. The action was questioned by one student. The Court noticed the distinction - the nature of administrative powers and quasi-judicial powers of an educational society in the following manner:
41The context of education societies involves a special factor which is not present in other contexts, namely, the relation of tutor and pupil i.e., the society is charged with the supervision and upbringing of the pupil under tuition, be the society a university or college or a school. Where this relationship exists it is quite plain that on the one hand in certain circumstances the body or individual acting on behalf of the society must be regarded as acting in a quasi-judicial capacity - expulsion from the society is the obvious example. On the other hand, there exists a wide range of circumstances in which the body or individual is concerned to impose penalties by way of domestic discipline. In these circumstances it seems to me that the body or individual is not acting in a quasi-judicial capacity at all but in a magisterial capacity, i.e., in the performance of the rights and duties vested in the society as to the upbringing and supervision of the members of the society.
34. In the present case, the Petitioners herein were suspended indefinitely as an FIR was registered against them. The suspension in the present case entails serious consequences whereby the Petitioners cannot attend classes at Respondent No. 2's campus. An action where there is an indefinite suspension is penal in nature and must be followed with an enquiry in light of principles of natural justice. In other words, the suspension cannot be indefinite without conduct of an enquiry.
4235. Even otherwise, Rule 5 provides that an order imposing any penalty under Part IV should be based on the findings of the Disciplinary Committee constituted under Rule 12. Therefore, Rule 10 cannot be relied upon by Respondent No. 2 to contend that principles of natural justice are not applicable for suspension pending enquiry and trial.
36. In light of the aforesaid discussion, the present writ petitions are disposed off with the following directions:
a) In W.P. No. 42467 of 2022 and 42437 of 2022, Respondent No.2 shall constitute a Disciplinary Committee and conduct enquiry by granting an opportunity of hearing to the Petitioners under Rule 12 of the Rules within 15 days from the date of receipt of a copy of this order. The Petitioners herein are at liberty to take all the grounds before such Disciplinary Committee.
b) In W.P. No. 43364 of 2022 is concerned, a Disciplinary Committee was already constituted and a report was submitted after due enquiry. An appeal before the Vice-Chancellor was also preferred and the same is pending. As such, the Petitioner in the said writ petition is granted liberty to pursue the said 43 appeal and Respondent No. 2 is directed to decide the appeal within 15 days from the date of receipt of a copy of this order.
Consequently, miscellaneous Petitions, if any, pending, shall also stand closed.
_________________ K. LAKSHMAN, J Date: 05.01.2023 Note: issue copy forthwith L.R.copy to be marked. b/o.vvr