Miss Meenal D/O Pandurang Marathe vs North Maharashtra University ...
2002 Latest Caselaw 419 Bom

JUDGMENT

D.C. Karnik, J.

1. Rule returnable forthwith by consent of parties.

2. Heard the learned Advocates for respective parties.

3. Miss Meenal Pandurang Marathe, the petitioner in Writ Petition No. 4657/01 and Miss. Ashwini Pandurang Jagtap, the petitioner in Writ Petition No. 4658/01 are the real sisters and are related to one Mr. D. V. Patil who is the Chairman of the Society which runs Gangamai College of Engineering. Meenal, the petitioner in Writ Petition No. 4657/01, appeared for second year examination in Engineering held by the respondent No. -University in April-May, 2000. Ashwini, the petitioner in Writ Petition No. 4658/01, appeared for first year Engineering examination held by the respondent No. 1 - University in April-May, 2000. Both of them were initially declared as having passed the respective examinations. Subsequently, a complaint was received by the respondent No. 1. University purportingly signed by the staff members of the respondent No. 3 - College in which it was alleged that the answer papers of the petitioners were substituted with the help of the respondent No. 3 who was acting under the influence of the Chairman of the society running the college. Initially preliminary enquiry was conducted by the respondent No. 1 and on being satisfied about the substance of the allegations made, the matter was referred to the Unfair Means Committee of the University under Ordinance No. 131 of the University framed in accordance with provisions of Section 32(6) of the Maharashtra Universities Act, 1994.

4. The Unfair Means Committee after giving the petitioners an opportunity of being heard and after conducting the necessary enquiry held that the petitioners were guilty of misconduct and therefore, cancelled the mark list issued to them in respect of the respective examinations held in April-May, 2000 and also debarred the petitioners for appearing for any examination conducted by the University till 31st December, 2002. This decision of the University was challenged by the petitioners by filing W. P. No, 4641/ 2000 and W. P. No. 4642/2000 in this Court. When the writ petitions came up for hearing before a learned Single Judge of this Court the learned Counsel for the respondent No. 1 - University made a statement that the University had decided to withdraw the impugned orders and to initiate fresh enquiry in the matter and to pass appropriate order in accordance with the law. The learned Counsel for the University assured the Court that the enquiry would be completed within a period of 2 months. In view of this statement, aforesaid two writ petitions became infructuous and were accordingly disposed of.

5. Thereafter, the Unfair Means Committee issued fresh show cause notices to the petitioners on 25th September, 2001 in which the petitioners were called for hearing before the Committee. The show cause notices however, did not say what punishment would be imposed if the petitioners were found guilty.

6. After an adjournment or two, the petitioners appeared before the Unfair Means Committee which held that the petitioners were guilty of the misconduct alleged. Accordingly two separate letters were written to the petitioners on 5th November, 2001 in which it was stated : "(1) that the Unfair Means Committee has come to the conclusion that the petitioners were guilty of misconduct in the examinations held in April-May, 2000; (ii) the Board of Examination (Vidyapeeth Adhikar Mandal) has decided to withdraw the mark sheets of the petitioners for the examination held in April-May, 2000 and (iii) the Board of Examination has further decided to debar the petitioners from appearing any examination of the University till 31st December, 2005." These two communications dated 5th November, 2001 sent by the respondent No. 1 to the petitioners are challenged in the two writ petitions.

7. It is well settled principle that in academic matters, the Court should not normally interfere and the matters should be left to the experts in the field. When the finding is that a student has committed malpractice in the examination, the High Court should not superficially take upon itself the task of finding out whether the malpractice has really been committed. The High Court should not act as Appellate Court but leave the matters to be decided by the University or the authorities of the University entrusted with the function of conducting the examinations. This position is so well settled that it is not necessary to refer to the various authorities cited in this regard. It would be sufficient to state that the High Court would be guided by the principles laid down by the Apex Court in University of Mysore and Anr. v. C. D. Govinda Rao and Anr. ; State of Kerala v, Kumari T. P. Roshana and Anr. ; Shirish Govind Prabhudesai v. State of Maharashtra and Ors. ; Medical Council of India v, Sarang and Ors. and Chairman J. & K. State Board of Education v. Feyaz Ahmed Malik and Ors. , Bearing in mind the limitations on the powers of the Court in interfering in the matters of examination, I would consider the arguments advanced by Shri V. D. Hon, learned Advocate for petitioners.

7. It was submitted by Shri Hon, learned Advocate for the petitioner that the Unfair Means Committee was not properly constituted and was prejudiced against the petitioners. Ordinance No. 131 contemplates an Enquiry Committee (in this case called as Unfair Means Committee) to be constituted. Sub-clause (a) of Clause (B) of Ordinance No. 131(1) lays down who should be the members of the Unfair Means Committee. Sub-clause (c) of Clause (B) of Ordinance No. 131(1) reads as under :

No person shall be a member of the Enquiry Committee who is working as a member of the Vigilance Committee during the examination concerned.

8. In order to ensure that there are no malpractices committed by the students and/or by the examiners and/or other persons connected with the examinations, the University had appointed Vigilance Committees or Vigilance Squads. Such Vigilance Squads were empowered to visit the examination centres for spot verification and generally for enforcing discipline and ensuring that examinations were conducted fairly at all centres. It is alleged that one Dr. S. L. Patil was a member of the Vigilance Squad appointed for the Engineering examinations of the University. In the affidavit dated 11th April, 2002 filed by Shri D. G. Sarode on behalf of the petitioners, it is specifically stated (in para No. 3 at page 102) :

I say that Dr. S. L. Patil, Chairman of Unfair Means Committee has worked as a member of the Vigilance Squad of North Maharashtra, University, Jalgaon, on 15th, 17th, 18th, 20th, 22nd and 24th May, 2000 at Gangamai College of Engineering, Tq. & Dist. Dhule. Hereto annexed and marked as Exh. R-2 is the certificate of the squad visit.

The certificate of the squad visits are also annexed to the affidavit. This fact has not been denied on affidavit by the respondent University.

9. It is an admitted position that the said Dr. S. L. Patil was Chairman of the Unfair Means Enquiry Committee which enquired into the allegations of the unfair means allegedly adopted by the petitioners in the examinations held in April-May, 2000. Dr. S. L. Patil was a member of a Vigilance Squad during the examinations concerned and also acted as the Chairman of the Unfair Means Committee. This was clearly contrary to the Ordinance No. 131.

10. The petitions must succeed on this ground of breach of amandatory provision of Sub-clause (c) of Clause (B) of Ordinance No. 131(1). There are also other grounds on which petitioners are entitled to succeed. Under subsection 6 of Section 32 of the Maharashtra Universities Act, the Committee (i.e. Unfair Means Committee) is to submit its report and make recommendations to the Board of Examinations which alone is entitled to take disciplinary action in the manner as it deems fit. Shri Raghuwanshi, learned Counsel for University stated that under Sub-section (4) of Section 32, action can also be taken by the Vice Chancellor in case of an emergency and therefore, the decision was taken by the Vice Chancellor. In the present case the decision as to what action should be taken on the report of the Unfair Means Committee was neither taken by the Board of Examinations nor by the Vice Chancellor. Shri Raghuvanshi showed a copy of the proceedings of the meeting of the Unfair Means Committee held on 5th November, 2001. The date typed in the said proceeding is 6th November, 2001. The date written in hand by Chairman of the Unfair Means Committee below his signature is 9th November, 2001. The Vice Chancellor's signature bears the date 12th November, 2000. This means that in any event, the Vice Chancellor had not taken the decision on the report of the Unfair Means Committee (which was typed on 6th November 2001 and signed by the Chairman on 9th November, 2001) till 12th November, 2001. By two impugned communications dated 5th November, 2001 itself the petitioners were informed that their mark sheets for the examination held in April-May, 2000 were withdrawn and cancelled and they were debarred from appearing for any examinations of the University till 31st December, 2005. It is thus clear that the decision of debarring the petitioners from all the examinations till December, 2005 was not taken by Vice Chancellor or the Board of Examinations but by the Unfair Means Committee itself on 5th November, 2001 without having any power to do so. The communications dated 5th November, 2001 are bad on this ground also.

11. Clause 10 of Ordinance No. 131 confers power of debarring the students from appearing for any examination of University for a period of not more than 5 years. The examination in which the misconduct was allegedly committed were held in April-May, 2000. The period of 5 years would therefore, expire in April-May, 2005. Assuming that the period of 5 years is to be counted from the date of the decision which was taken 5th November, 2000, the period of 5 years would expire on 4th November, 2005. The petitioners have been debarred for appearing for the examination till 31st December, 2005 which is clearly more than the maximum period prescribed under Clause No. 10 of Ordinance No. 131. On this ground also the decision is required to be quashed and set aside.

12. It is worthy to note that the decision of the Unfair Means Committee holding the petitioners guilty was not communicated to the petitioners. The petitioners were not given any opportunity of showing cause as to why the punishment of debarring them from appearing for any examination for 5 years should not be imposed on them on the basis of the report of the Unfair Means Committee. It was contended by Shri Raghuwanshi that it was not necessary to give any notice or hearing before imposing the punishment. I have some doubts as to whether it can be laid down as a general rule that it is not necessary at all to give any notice and hearing to the delinquent student before imposing a punishment on him. In any event, on the facts of these petitions I am satisfied that notice and hearing ought to have been given to the petitioners. Initially orders were passed on 30th October, 2000 debarring the petitioners from appearing for any examinations held by the respondent No. 1 till 31st December, 2002. These orders were challenged in Writ Petition Nos. 4641 /2000 and 4642/2000. At the time of hearing of the said Writ Petitions, the said orders were withdrawn by the University as stated in the earlier paragraphs of this judgment. When the fresh show cause notices were issued, the petitioners were only told to appear before the Unfair Means Committee and they were never informed what was the punishment that would be imposed on them in case they were found guilty. The petitioners could not have expected punishment worse than what was imposed on them earlier and which was withdrawn voluntarily by the University at the hearing of earlier Writ Petitions would be awarded. The petitioners therefore, could not have expected that they would be debarred from appearing for examination beyond December, 2002 for the same misconduct. If at all greater punishments were to be imposed petitioners ought to have been informed about the proposed punishment and they ought to have been heard. This is also not done. The second order does not give any reasons as to why punishment greater than what was initially imposed was imposed in the 2nd enquiry.

13. Thus petitioners are entitled to succeed on all the counts. In the circumstances, petitions succeed. Rule is made absolute in both the petitions. The learned Advocate for the respondent submits that the University should be permitted to hold a fresh enquiry against the petitioners. This prayer was not made in the affidavit in reply. I have held that the petitioners are entitled to succeed not only on the ground that the enquiry was defective but also on the other grounds mentioned in the judgment. In the circumstances, the request cannot be granted.

14. The hearing of the petitions commenced on Friday the 12th April, 2002 and the petitions remained part heard at the end of the day. The learned Counsel for respondent Nos. 1 and 2 then had fairly stated that in case the petitioners succeeded in the petition separate practical examinations would also be held for the petitioners and they would be allowed to appear for the written examinations. The respondent Nos. 1 and 2 shall abide by the said statement.