Ashish Haribhau Sarode vs State Of Maharashtra And Ors.
2001 Latest Caselaw 634 Bom

JUDGMENT

V.K. Barde, J.

1. Heard Mr. Raghuwanshi, learned Counsel for the petitioner, Mr. S.K. Kadam, learned A.G.P. for the respondent No. 1 and Miss. Surekha Mahajan, learned Counsel for the respondent No. 2. Mr. Raghuwanshi, learned Counsel for the petitioner seeks leave to delete the respondent No. 3. Leave to delete respondent No. 3 granted.

2. Rule. By consent of the learned Counsel for both the parties, Rule made returnable forthwith.

3. The petitioner appeared for XII standard Examination held by the respondent No. 2 in February, 2001. On 24-2-2001 he was appearing for examination paper in Hindi subject. At that time the examination hall was searched by the Squad and the Education Officer found some papers. It is alleged that those papers were found with the petitioner, and therefore, the Education Officer prepared necessary documents and submitted the matter to the respondent No. 1 Board. The Enquiry Officer was appointed. Before him, petitioner filed his say and he contended that he was appearing for examination in Hindi subject while the papers which were found were pertaining to Marathi subject. He also took the stand that papers were not found on his person but were lying near his Bench. He also took a stand that the relations of his father who was Block Development Officer and the concerned Education Officer were not good, and therefore, out of vengeance false action is taken against him.

4. The Enquiry Officer after holding the enquiry submitted his report and exonerated the petitioner. However, the Standing Committee did not agree with the report of the Enquiry Officer and held that the petitioner had committed mal practices at the time of the giving examination in Hindi subject and he is punished that he should not appear for XII Examination till October, 2001. His result of the examination held in February 2001 is cancelled. So he has filed this writ petition challenging both the decisions.

5. The learned Counsel for the respondent No. 2 has argued that it may be that the papers found with the petitioner were not connected with the subject in which he was giving examination but as per Rule 13, with respect to mal practices the Board has prohibited keeping in possession even the blank papers or papers not connected with the subject in which the examination is being held. Similar instructions are given on the answer book also. So case of the petitioner falls under this rule, and therefore, the prescribed punishment is given to him.

6. It is worth noting that the petitioner has taken the stand that the papers were not found on his person but were found near his Bench. The learned Counsel for the respondent has produced before us the enquiry papers and from that it is noticed that the allegations was that the papers were found near the petitioner. There is no allegation that the papers were recovered from the person of the petitioner. The word "near" is vague. It does not necessarily mean that the papers were found on the person of the petitioner. In the papers of inquiry there are statements of two students but they also do not state that the papers were found on the person of the petitioner. So the stand taken by the petitioner immediately at the time of finding of the papers that those papers were not found on his person but we relying near his Bench is supported. That was the statement made by him before the Education Officer at the time of search and the same stand is taken by him in the written say filed for the purposes of enquiry. So all these circumstances indicate that papers were not found on the person of the petitioner. Rule 13 on which reliance is placed by the learned Counsel for the respondent uses the words ^^Lor% toG ckGXk.ks** that means those papers must be on the person of the petitioner. Here there is no clear evidence that papers were on his person and in such circumstances, the conclusion drawn by the Standing Committee cannot be accepted especially when Enquiry Officer has exornerated the petitioner from the charge.

7. One more important circumstance has to be noted, that the procedure is prescribed for the purposes of enquiry. Rule 12 in this procedure prescribe by the Board specifically mentions that if the Standing Committee does not agree with the report given by the Enquiry Officer, then the Standing Committee must give reasons for disagreeing with the report given by the Enquiry Officer. Here we find that though the Enquiry Officer has exonerated the petitioner, the Standing Committee has simply passed an order of punishment without giving any reasons as to why the Standing Committee disagrees with the report given by the Enquiry Officer.

8. The learned Counsel for the respondent No. 2 has argued that as the papers found with the petitioner may be of different subject, considering the Rule, the decision given by the Standing Committee is proper however, no such reasoning can now be given in the arguments, that must be there in the decision given by the Standing Committee and we do not find that any reason is given by the Standing Committee while disagreeing with the view taken by the Enquiry Officer.

9. Thus, it is seen that on question of fact it is not proved that the papers were found on the person of the petitioner. The papers found were not connected with the subject for which the petitioner was appearing on that day and the Enquiry Officer has exonerated the petitioner, the Standing Committee has punished him without giving any reasons for the same. In such circumstances, we hold that the order passed by the Standing Committee has to be quashed and set aside.

10. Accordingly, the order passed by the Standing Committee cancelling the result of the petitioner of XII Std. Examination held in February, 2001 and debarring him from appearing for XII Std. Examination till October, 2001 is quashed and set aside. Petition is allowed in terms of prayer Clauses (B) and (C). The respondent No. 2 to declare the result of the petitioner within a period of 10 days.

Rule made absolute accordingly. No order as to costs.