Bombay High Court
Manrajsingh Hardevsingh Sandhu vs Sciences on 1 December, 2011
Bench: B. P. Dharmadhikari, P. D. Kode
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1499 OF 2011
Manrajsingh Hardevsingh Sandhu )
Aged About 22 Yrs. Occ.: Student )
R/o. 13, Sahyog Nagar, Nari Ring Road, )
Nagpur
ig ) ....Petitioner
V/s.
1 Maharashtra State Board of Secondary )
and Higher Secondary Education, Nagpur )
Divisional Board, Civil Lines, Nagpur )
Through its Divisional Secretary )
2 Lata Mangeshkar Medical & Dental College )
run by Vidya Shikshan Prasarak Mandal )
Wanadongri, Hingna Road, Nagpur )
3 Maharashtra University of Health )
Sciences, Nasik )
Through its Registrar ) ..... Respondents
----
Mr. S.P. Bhandarkar, Advocate for the petitioner.
Mr. Anand Parchure, Advocate for respondent no.1.
Mr. J.B. Jaiswal Advocate for respondent no.3.
----
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2
CORAM : B.P. DHARMADHIKARI &
P. D.KODE, JJ.
RESERVED ON : 21.07.2011
PRONOUNCED ON : 01.12.2011
JUDGMENT :- ( PER : P. D. KODE, J)
1. Heard.
2. Rule, made returnable forthwith. Mr. Anand Parchure and Mr.
J.B. Jaiswal, learned counsel respectively waive service for respondent no.
1 and 3. Considering the main relief prayed, service upon respondent
no.2 dispensed with.
3. By the present Petition under Articles 226 and 227 of the
Constitution of India, the petitioner-student has prayed for -
a) quashing and setting aside order of respondent No.1 Board
dated 14th March,2011 cancelling Higher Secondary Certificate
Examination (February-March 2008) given by him and so also
provisional result of the same declared on 7th July, 2008 and further
debarring him for once appearing at said examination.
b) directing respondent No.1 for declaring himself having
successfully passed said Examination with 63% marks i.e. as per the
provisional declaration made by board on 7th July, 2008.
c) saddling cost of Rs.5 lacs upon respondent No.1 for having
acted in defiance of order passed on 22.2.2011 disposing Writ
Petition No.2474/2010 earlier preferred by petitioner and having
indulged in the acts of trying to destroy his career prospect.
4. Mr. Bhandarkar, learned Counsel for the petitioner, urged that
the petitioner is forced to prefer present petition by way of fourth round of
litigation due to respondent No.1 vindictively having continued to
maintain such erroneous, illegal, arbitrary decisions from time to time
arrived by them since 2008 in spite of the petitioner on each of such
occasion, having challenged decision then arrived and thereon the same
being quashed and set aside by the Court and having remanded matter to
the respondent no.1 with appropriate directions.
5. With regard to the events occurred leading to filing of the
present Petition, Mr. Bhandarkar urged that:
a) the petitioner - a student of Hislop College, Nagpur appeared
for 2007-2008 HSC Examination held in March,2008 from Centre
No.306 at L.A.D. College with allotted Seat No.-N OO8633. The last
paper for subject of Psychology out of six papers for different
subjects for the said examination was scheduled on 10th March,2008
in between 3:00 p.m. to 6:oo p.m.. During the said paper, room No.
204 in which the petitioner was having seat was visited on two
occasions by Flying Squad i.e. firstly at 4.00 noon and secondly at
4.20 noon.
b) according to respondent No.1, while giving said paper the
petitioner indulging unfair means , was found carrying nine-chits
while solving said Psychology paper. The said nine chits and so also
his original answer sheet were seized and he was given fresh
answer-sheet at about 4:30 p.m. for solving said paper.
c) The Enquiry Officer thereafter appointed, after duly
considering reply given by the petitioner to show cause notice issued
in light of the relevant facets of the event, came to the conclusion
that the petitioner was not guilty of using unfair means in
Examination and exonerated him.
d) however, the Standing Committee of respondent No.1 without
taking into consideration such report given by Enquiry Officer, took
different view and cancelled examination of the petitioner and
debarred him for once appearing for said examination. The
petitioner challenged the same by filing Writ Petition No.2346 of
2008. By the provisional result declared as per the interim direction
given in the said Petition, the petitioner was declared of having
passed said examination with 63% marks. The said petition was,
thereafter, disposed of on 14.10.2008 by quashing and setting aside
order impugned therein with a direction to respondent no.1 - Board
for conducting fresh inquiry within four weeks by examining
invigilator with liberty to the petitioner to cross-examine her.
e) accordingly respondent No.1 conducted fresh enquiry and
during the same on 18.11.2008 statements of four persons were
recorded i.e. of
(i) Mr. H.N. Gillurkar (Member of the Flying Squad),
(ii) Mr. R.P. Shelokar (Additional Center in-charge);
(iii) Ms. Apurva Pathak (Invigilator), and
(iv) Ms. Mangla Baitule (Center in-charge).
Even after said enquiry, the respondent no.1 passed similar erroneous
order cancelling examination of the petitioner and debarring him
once for appearing for examination.
f) the petitioner challenged the said order by filing Writ Petition
No.1164/2009. After hearing both sides, the same was disposed of
by order dated 23.3.2010 by again setting aside said order passed by
respondent No.1 and remanding the matter with a direction to the
petitioner to appear before the Board on 1.4.2010 and to the board
for taking fresh decision within four weeks thereafter after giving
due opportunity to the petitioner to cross-examine the witnesses
examined during the enquiry. The petitioner was also then given
liberty to apply the board for cross-examining the witnesses through
Advocate, with further direction to the board to consider such a
request if made, on its own merits. Accordingly the petitioner
appeared and cross-examined the witnesses through his Advocate.
Even thereafter once again the similar order cancelling the
examination of the petitioner and debarring him once appearing for
examination was passed by the respondent no.1.
g) the petitioner challenged the said order by filing Writ Petition
No.2474 of 2010. The respondent no.1, during the hearing, tried to
justify that the decision was arrived after taking into consideration
the evidence of the witnesses examined. However, it was
alternatively submitted that in event of the Court being of the view
that the respondent no.1 needs to reconsider the evidence of
witnesses and take fresh decision; the respondent no.1 was willing to
do so.
h) having regard to such a willingness shown by the respondent no.
1, the said writ petition was disposed of in terms of the order dated
22.2.2011 of which the relevant part runs as under :-
"10. In the backdrop of the above referred facts, the limited issue
which is required to be re-considered by the board is in respect of
the evidence of the above referred witnesses examined by the Board
in order to prove the charge of use of unfair means by the petitioner
at the time of examination. Since the Board has already agreed to
re-consider the evidence of these witnesses in totality and shall take
a fresh decision, it will not be proper for us to express our opinion
in respect of the quality of evidence, contradictions, if any in the
evidence of these witnesses etc. at this stage and we leave it to the
Board to consider these aspects. Since this is a third round of
litigation, we want to express that the Board shall carefully
consider the evidence of all these witnesses and should take a fresh
decision after due consideration of the evidence of these witnesses.
11. For the reasons stated here in above, the impugned order
dated 17/5/2010 is hereby quashed and set aside. The Board shall
re-consider the evidence of the all the witnesses examined by the
Board, as referred here in above, carefully and take a fresh decision
based on the said evidence."
(all emphasis supplied by us)
6. Mr. Bhandarkar further urged that the respondent no.1 utterly
failed to comply said direction given and once again recording erroneous,
illegal and arbitrary reasons passed in order dated 14th March,2011
amongst other reiterating earlier decision that the evidence adduced had
established that the petitioner while solving the paper of Psychology had
written answer sheet by keeping the chits/papers related to said subject
i.e. the chits which were found with him and thereby was guilty of unfair
means. The respondent No.1 also cancelled examination of the petitioner
as well as result provisionally declared earlier and further debarred him
for once appearing at said examination, forcing him to initiate present
fourth round of litigation.
7. He urged that the respondent No.1 failed to assess the
evidence/material surfaced during the enquiry by applying correct
standard of proof i.e regarding the crucial aspect whether nine chits were
found with the petitioner as alleged. He urged that said enquiry was
consequently involving question of imposing punishment in event of
petitioner being found guilty using unfair means in said examination.
Hence , the said proceedings though of quasi judicial nature were on par
with criminal prosecution and were requiring standard of proof as
required in criminal prosecution i.e. the fact warranting imposition of
punishment being required to be established beyond pale of doubt and not
merely on preponderance of probability i.e. by a standard of proof as
required for proceeding of civil nature.
8. He further urged that it was necessary for respondent no.1 to
supply the petitioner all the material which they intended to rely against
him in such type of proceedings. By drawing attention to reply dated
27th August, 2009 given by respondent No.1 to the application dated 30th
April, 2009 (erroneously stated in the said reply as dated 29th July, 2009)
made by the petitioner to the information officer of respondent No.1 under
Right to Information Act, for furnishing copies of the documents described
at subheads (a) to (n) in his said letter, the learned counsel urged that
refusal on part of respondent no.1 to give the same by pointing provisions
of Section 8(3) (ch) (tra) on the count of Writ Petition No.1164 of 2009
preferred by the petitioner being then pending clearly denotes that the
petitioner was deprived of said material. He further urged that glance at
said letter reveals that petitioner had sought information about the
matters/material which was ultimately utilized against him in the enquiry
conducted. He urged that the same has resulted in gross violation of the
principles of natural justice and on the said count alone the order
impugned deserves to be quashed and set aside.
9. He urged that respondent No.1 failed to appreciate the material
surfaced in the enquiry in proper perceptive regarding the place at which
nine chits were found/seized. He urged that the evidence/material relied
by respondent No.1 is incapable of reaching to the finding of the same
being found with the petitioner and driving to ultimate conclusion of the
guilt of the petitioner for unfair means, as arrived by respondent no.1.
He urged that such conclusion is apparent due to irreconcilable variance
occurring within the evidence of the witnesses regarding the place from
which the said chits were seized.
10. In said context he pointed that Mr. Gillurkar, member of flying
squad, during the evidence claimed that nine chits were recovered from
the pocket of the petitioner, while Mr. Shelokar Additional Centre In-
charge claimed that the same were found within the paper of the
petitioner, while one more witness claimed that the same were found
lying on the ground nearby the seat of the petitioner i.e. as pointed by
the petitioner in the representation / explanation dated 19.12.08. He
further pointed that the evidence of the fourth witnesses examined i.e. Ms.
Baitule, centre in-charge reveals that neither signatures of the
witnesses were taken on form no.31 nor she had recorded her remarks
on the same nor signature of the petitioner was taken on the nine chits
allegedly seized from him. He urged that in view of the same, submission
canvassed by learned counsel for respondent no.1 that form No.31 is
bearing the signatures of witnesses gives reason to believe that same was
fabricated later on. He urged that the same is fortified from the conduct of
respondent no.1 of not furnishing copy of same to the petitioner in spite of
demand made by him vide letter dated 30th April, 2009 under the Right to
Information Act.
11. Learned Counsel urged that apart from the said irreconcilable
variance occurring regarding the precise place at which the paper-chits
were allegedly found with the petitioner, considering the
evidence/statement of each of them in light of the answers given by them
in the cross-examination, it is difficult to accept that the evidence adduced
is cogent and convincing. He urged that with such miserable character of
material/evidence adduced, it cannot be said that fact of seizure of nine
chits from the petitioner was duly established. He urged that the flying
squad during the first visit having found nothing is also a circumstance to
be taken into consideration while appreciating the said evidence and so
also supporting contention of the petitioner that vindictively he is made
scape goat.
12. Mr. Bhandarkar thus urged that considering the erroneous
observations made and the illegal, arbitrary conclusions reached in the
said order upon such evidence/material on the record, the same cannot be
sustained. He further urged that in spite of such a position, respondent No.
1 having continued with the attitude of unnecessarily cancelling the
examination is indicative of the relevant order being not passed upon the
merits of the matter. He thus prayed that unsustainable order passed by
respondent No.1 be quashed and set aside by allowing the Petition. He
further urged that having due regard to the attitude of the respondent No.
1 of maintaining erroneous decisions vindictively also warrants awarding
suitable compensation to the petitioner as prayed. Learned Counsel also
placed reliance upon certain decisions in support of the submission
canvassed to which reference is made at appropriate place in the further
part of this judgment.
13. Mr. Parchure, learned Counsel for respondent No.1, submitted
that there is no merit in the Petition preferred. He urged that as per the
direction given in the Writ Petition No.2474/2010 on 22.2.2011, the
respondent No.1 has carefully considered the entire evidence adduced and
on the basis of the same has correctly arrived at the conclusion that nine
chits pertaining to printed material about psychology paper were found
with the petitioner. Thus the involvement of the petitioner in the
malpractices being squarely established from the same, respondent No.1
has rightly come to the conclusion as stated into the order impugned.
14. Mr. Parchure further urged that the submissions canvassed on
behalf of the petitioner by pointing out answers obtained during the cross
examination that Form No.31 was not containing signature of witnesses
and student or that the said form is subsequently fabricated is devoid of
merit. He urged that the said fact can be ascertained only by inspecting
said form within the original record and not on the basis of oral evidence
i.e. answer obtained from the witnesses during the cross examination. He
urged that fact that the same is bearing not only the signature of the
student/petitioner but his say repels the submission of the same being
fabricated lateron. He urged that the material adduced has been carefully
considered in the light of the stand taken by the petitioner during his
reply. He urged that the fact of nine chits being found in the pant of the
petitioner is duly established from the evidence of member of the flying
squad Mr. Gillurkar. He urged that the criticism canvassed that there is a
variance in the statement of Mr. Gillurkar and additional centre in-charge
Mr. Shelokar does not stand to the reason after considering the evidence of
each of them in the light of the answers given by them during the cross-
examination. He urged that the said answers in terms reveal that said
witness had not personally seized or seen the seizure of the said chits
from the petitioner. It is urged that hence merely because he had stated
as pointed out would not affect the claim staked by Mr. Gillurkar who had
actually seized the chits from the pocket of the petitioner. He urged that
the same is the case about the evidence of the other witnesses other than
Mr. Gillurkar.
15. He further urged that truly speaking the burden upon the
respondent No.1 is not rigorous as tried to be canvassed by the petitioner
as the said inquiry is purely of quasi civil nature. He expressed serious
doubt regarding the proposition canvassed that since inquiry was also
contemplating imposition of punishment in event of student being found
to have indulged in unfair means has an effect of character of inquiry
being on par with criminal prosecution. He urged that even assuming
that the same being so, still the material surfaced during enquiry was
leading to sole inference that nine chits were seized from pocket of the
petitioner and identical matter as contained in one of them was found in
the seized paper (answer sheet) of the petitioner. He urged that thus the
same could not have led to any other order than passed on 14.3.2011. He
also relied upon certain decisions in support of submission canvassed
by him.
16. We have carefully perused the record and particularly the Form
No. 31 from original record of the inquiry called and given thoughtful
considerations to the submission advanced for determining the sole
question involved in this Petition whether respondent no.1 has rightly
arrived at fresh decision dated 14th March, 2011 after properly complying
the direction given in Writ Petition No.2474 / 2010 of reconsidering the
evidence / material surfaced in enquiry conducted.
17. Firstly considering the grievance of petitioner having not
received copies of material relied against him in enquiry i.e. the material
sought by him under Right to Information Act, due to respondent Board
having refused to give the same on the counts stated in the reply dated
27.8.2009; we find it difficult to find any substance in the said grievance
now made. The same is obvious as said refusal was made way back in
month of August,2009 on the count of Writ Petition No.1164 /2009
preferred by the petitioner then being pending. The matters stated
hereinabove clearly reveals that the said Writ Petition was disposed by the
Court by order dated 2.4.2010. The petitioner has not pointed that any
directions regarding said grievance was then sought by him and given in
said order disposing the said Petition.
18. Further more in terms of said order in the enquiry conducted
thereafter, petitioner had participated and he was duly permitted by
respondent No.1 to cross examine the witnesses through his Advocate.
Without enlisting the questions then put on behalf of the petitioner to the
witnesses during said cross examination, it can be safely said that
petitioner had then cross-examined witnesses regarding all the relevant
aspect i.e. about the said material of which the copies were sought by
him. Thus, taking into account the said questions put in the cross
examination about the same and answers received for the same, it is
difficult to accept that petitioner was not aware of the nature and the
aspects of the said material relied against him by respondent no.1. Having
regard to the same, it is further difficult to accept that during the enquiry
the petitioner has not received due opportunity to test the relevant aspect.
19.
Additionally, the order dated 17th May, 2010 passed by
respondent no.1, after said enquiry, was again challenged by the
petitioner by filing W.P. No.2474/2010 which was disposed by order dated
22.2.2011. The copy of the said order produced along with the Petition
also does not reveal that even then petitioner had made any grievance
regarding non-receipt of copies of the said material. Furthermore
petitioner has annexed the statements of relevant witnesses examined
during said enquiry including the questions asked and answers received
during the cross-examination of said witnesses effected by the petitioner
through his Advocate. The same makes it extremely difficulty to accept
that during enquiry, the petitioner was not given and/or had not received
due opportunity to challenge the material relied against him. Thus, the
grievance presently made is totally uncalled for deserving no
consideration.
20. In the same context, the perusal of decision in the case of Sachin
Agrawal vrs State of U.P. reported in AIR 1999 Allahabad Page 157 and
particularly the observations made in paragraph 11, 13 and 14 upon
which reliance was placed for supporting said grievance made on behalf of
petitioner, reveals that in the said case the petitioner-student was not
caught red-handed at the examination while using unfair means but
lateron the matter was enquired after receipt of complaints regarding mass
copying, the report of sub-committee who had inquired the matter was not
furnished to him, he was also not given an opportunity to adduce evidence
oral or documentary during the enquiry before passing an order of
withholding his result. In such facts and circumstances of the said case
due opportunity to defend being not received by the student being
established, the order was quashed and set aside in the said case. In the
instance case, no such facts situation being established and as discussed
earlier the grievance presently made being found totally uncalled for the
said decision cannot be said to be of any useful assistance to the petitioner.
Needless to add, in the present case, after taking into account the
subsequent event occurred after refusal to furnish the information in
response to application made by petitioner under the Right To Information
Act, makes it difficult to perceive of there being violation of much a less
gross violation of principles of natural justice as canvassed.
21. The careful perusal of the decisions of the Hon'ble Apex Court in
the cases of (1) H.V. Panchaksharappa .vrs. K.G. Eshwar, reported in AIR
2000 Supreme Court, 3344; (2) In Re .vrs. Advocate, reported in AIR
1989 Supreme Court, 245 and (3) All India Anna Dravid Munnetra
Kashagam .vrs. K. Tripathi and Company, reported in AIR 2009
Supreme Court, 1314 relied by the learned counsel for the petitioner for
supporting his submissions that standard of proof required for an enquiry
of a nature as made in the present case being on par with that of criminal
prosecution reveals that out of them first two cases were regarding the
misconduct on part of the Advocate complained while third one was
regarding the contempt of court. It further reveals that after having due
regard to nature of the charges levelled, severity of the punishment
prescribed for the same, the inquiry contemplated for such charges
levelled in the said cases inquiry contemplated for the same was
considered to be that of quasi criminal nature warranting a proof beyond
reasonable doubt.
22. The reasoning behind the same is abundantly clear from the
observations made in paragraph no.3 of the second case of the Re .vrs.
Advocate (supra) wherein while observing regarding the proceedings
under section 35 of the Advocate Act read with relevant rules, the
Hon'ble Apex Court has observed :
(i) essentially the proceedings are quasi-criminal in character
inasmuch as a Member of the profession can be visited with
penal consequences which affect his right to practise the
profession as also his honour, under Section 35(3)(d) of the
Act, the name of the Advocate found guilty of professional or
other misconduct can be removed from the State Roll of
Advocates. This extreme penalty is equivalent of death
penalty which is in vogue in criminal jurisprudence. The
Advocate on whom the penalty of his name being removed
from the roll of Advocates is imposed would be deprived of
practising the profession of his choice, would be robbed of his
means of livelihood, would be stripped of the name and
honour earned by him in the past and is liable to become a
social aparthied. A disciplinary proceeding by a statutory
body of the Members of the profession which is statutorily
empowered to impose a punishment including a
punishment of such immense proportions is quasi-
criminal in character".
23. Similarly in the third case i.e. All India Anna Dravid Munnetra
Kashagam .vrs. K. Tripathi and Company (supra), the Apex Court in
paragraph no.34 is observed to the effect :
may now notice some judgments in which the
34. We
Courts have considered the questions relating to burden of
proof in contempt cases. In Re Bramblevale Ltd. (1969) 3 All
ER 10621) Lord Denning observed :
"A contempt of court is an offence of a criminal
character. A man may be sent to prison for it. It must be
satisfactorily proved. To use the time-honoured phrase, it
must be proved beyond reasonable doubt. It is not proved by
showing that, when the man was asked about it, he told lies.
There must be some further evidence to incriminate him.
Once some evidence is given, then his lies can be thrown into
the scale against him. But there must be some other evidence.
Where there are two equality consistent possibilities open to
the court, it is not right to hold that the offence is proved
beyond reasonable doubt."
24. Now examining nature of inquiry made by respondent no.1 in
present case even in light of the ratio of the said decisions pointed also
makes it difficult to accept the submission canvassed of the same being of
quasi criminal nature as tried to be canvassed on behalf of the petitioner.
The same is apparent as the Schedule of punishment (Item No.10)
Appendix "A" prescribing punishment for various unfair means indulged
during the examination brought to our notice prescribes punishment for
charges at Item No.9 to the tune of cancellation of performance of entire
examination and debarring for one more examination. Needless to add,
same thus indicates that such a candidate is even not permanently barred
from appearing at the examination. Having regard to the same even
judging from the angle of severity of punishment prescribed, the same
cannot be said to be of a nature, for which in the said referred cases for
punishment having severe/drastic effect, as observed in the said cases, the
inquiry in the said cases were considered to be of quasi criminal nature.
Needless to add that no submission being canvassed on behalf of
petitioner being the said charges were of an offence or for determination
for commission of offences, no dilation about the same is warranted.
25. Having regard to the submissions advanced regarding difference
in standard of proof in civil and criminal cases it appears proper to make
the reference to observations made by learned Authors Woodroffe &
Amirali in their treaty by name "Law of Evidence" 14th Edition, wherein
on page -195 and 196 upon the relevant aspect the learned Authors have
observed to the effect :
(l) Proof in Civil and Criminal cases. Certain provisions of the Law of
Evidence are peculiar to Criminal trials, e.g., the provisions relating to
confessions and character, and the character of the prosecutrix in rape case
and others are peculiar to Civil cases,e.g.,the provisions relating to
admission character and estoppal but apart from these, the rules of
evidence are the same in Civil and Criminal cases. But there is a
strong and marked difference as to the effect of evidence in Civil and
Criminal proceedings. The Court is not entitled to require from any
party conclusive proof of any fact; it cannot require a standard of
proof higher than that required by this Act. "The circumstances of
the particular case" must determine whether a prudent man ought
to act upon the supposition that the facts exist from which liability is
to be inferred. What circumstances will amount to proof can never be a
matter of general definition. But with regard to the proof required in Civil
and Criminal proceedings there is this difference : that in the former a
mere preponderance of probability is sufficient; and the benefit of every
reasonable doubt need not necessarily go to the defendant but in the latter
(owing to the serious consequences of an erroneous condemnation both to
the accused and society) the persuasion of guilt must amount to `such a
moral certainty as convinces the minds of the tribunal, as reasonable men,
beyond all reasonable doubt. These principles apply also in regard to the
proof necessary to set aside elections under Section 116-A of the
Representation of People Act,1951. The test in weighing the evidence in
such cases is similar to the one in criminal cases.
(m) ....
(n) Test - "Beyond" reasonable doubt. Strictly speaking, the test of
legal proof is not the absence of reasonable doubt, though that is
often a convenient way of expressing what is meant by `proof'. The test
is really the estimate which a prudent man makes of the
probabilities, having regard to what must be his duty as a result of
his estimate. In each case whether proof of the case for the prosecution
or proof of the defence set up by the accused, it is the estimate of
probabilities arrived at from this practical standpoint by a prudent
man."
26. Similarly in the context of other aspects connected with the
same, it will not be out of place to make a reference to the decision of the Apex
Court in the case of Vadivelu Thevar .vs. The State of Madras reported in AIR
1957 SC 614, wherein Hon'ble Apex Court while considering the question of
Court insisting upon plurality of a witness in a murder case, in paragraph nos.
11 and 12 amongst other observed:-
"11. In view of ......................................................
................... ............................Even as the guilt of an
accused person may be proved by the testimony of a single
witness, the innocence of an accused person may be
established on the testimony of a single witness, even though a
considerable number of witnesses may be forthcoming to
testify to the truth of the case for the prosecution. Hence, in
our opinion, it is a sound and well established rule of law that
the court is concerned with the quality and not with the
quantity of the evidence necessary for proving or disproving a
fact. Generally speaking, oral testimony in this context may be
classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no
difficulty in coming to its conclusion either way- it may convict
or may acquit on the testimony of a single witness, if it is found
to be above reproach or suspicion of interestedness,
incompetence or subornation. In the second category, the
court equally has no difficulty in coming to its conclusion. It is
in the third category of cases, that the court has to be
circumspect and has to look for corroboration in material
particulars by reliable testimony, direct or circumstantial.
There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single
witness, if courts were to insist on plurality of witnesses in
proof of any fact, they will be indirectly encouraging
subornation of witnesses. Situations may arise and do arise
when only a single person is available to give evidence in
support of a disputed fact. The court naturally has to weigh
carefully such a testimony and if it is satisfied that the
evidence is reliable and free from all taints which tend to
render oral testimony open to suspicion, it becomes its duty to
act upon such testimony. The law reports contain may
precedents where the court had to depend and act upon the
testimony of a single witness in support of the prosecution.
There are exceptions to this rule, for example, in cases of
sexual offences or of the testimony of an approver; both these
are cases in which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But, where there
are no such exceptional reasons operating, it becomes the duty
of the court to convict, if it is satisfied that the testimony of a
single witness is entirely reliable. We have, therefore, no
reasons to refuse to act upon the testimony of the first
witnesses, which is the only reliable evidence in support of the
prosecution."
27. In light of the aforesaid, we find it unnecessary to go into the
controversy of the said inquiry being of quasi criminal nature and hence
was warranting a proof on par with criminal prosecution, as considering
the material surfaced during inquiry even applying such standard , we
find it difficult to accept the submission canvassed that by applying such
standard respondent no.1 could not have arrived to the decision as
arrived by them. Needless to add that after assessing said material
surfaced upon the test given/explained by the learned author regarding
standard of proof for criminal prosecution (in extract recited hereinabove)
and plurality of witnesses being not required even in criminal prosecution
for establishing a charge and reliability of witness being test for accepting
his evidence for establishing a fact, as observed by the the Hon'ble Apex
Court hereinabove, after considering the material surfaced in the inquiry,
we find it difficult that the same would not have led to the decision about
guilt of petitioner for using unfair means in the examination, as arrived by
respondent no.1 board.
28. We are of such a considered opinion as the evidence of member
of the flying squad Shri Gillurkar in no uncertain terms reveals that nine
paper chits were found in the pocket of the petitioner and the same were
seized and handed over by him to incharge of the centre. Furthermore,
considering each of the answer given by him to 26 questions put to him
during the cross examination it is difficult to accept that any of them had
an effect of shattering main claim staked that nine chits were found in the
pocket of the petitioner. The fact of chits being found in the pocket of the
petitioner being main "fact in issue" relevant to the purpose for which
enquiry was held, his answer during the cross-examination that he had
given the same to Shelokar along with the papers cannot be said to be
affecting his evidence about the said core issue. The same is obvious as
careful scrutiny of his statement does not reveal claim being of "himself"
having handed over the said nine chits to the centre in-charge. In view of
the same and having due regard to the fact as revealed from the other
material that ultimately the said nine chits and seized paper were given in
the custody of the centre in-charge, the said casual statement of chits
being given to centre in-charge cannot be said to be affecting his main
claim of chits being found in the pocket of the petitioner.
29. Similarly inability of Shri Gillurkar to tell the clothes of
student/petitioner on the count of the matter being of year 2008 or as to
how many were the pockets to the pant worn by the petitioner, or the
nature of pant or precisely to tell whether the papers were found in right
or left pocket of pant or non mentioning of the time in the report or
having not told Shri Shelokar that the same were seized from the pocket
or inability to give the reason for having not mentioned details of said
aspects in his report etc. also cannot be said to be affecting main core of
his claim that nine chits were found in the pocket of the petitioner. Such a
conclusion is obvious as he has candidly admitted during the cross
examination of having been to the relevant room on two occasions and
timing for the same. He has also specified the place at which the student
was having a seat and the papers being found on the second occasion. He
has duly answered regarding the type of copy papers being printed and the
same being not handwritten papers and the same being printed with black
ink and having counted the same and the same were found to be nine.
Now considering the main aspect to which attention of such member of
flying squad involved in seizure of "copy paper i.e. nine chits from the
pocket of the petitioner" would have been focused, his inability to answer
about the ancillary matters regarding type of clothes and few more i.e.
matters stated hereinabove cannot be said to be affecting main core of his
testimony. Such a conclusion is again apparent as the said matters can
never be said to be instrinctly connected with the main fact i.e. precise
place from which the said nine-chits were seized. The same reasoning
will be equally applicable to other matters regarding which he was not
able to given answer.
30. Furthermore, it is significant to note that during the cross-
examination it has also surfaced that he has not received any harassment
from the petitioner during the course of his service i.e. a reason for
entertaining any animus ill-will/grudge against the petitioner. Needless to
add hardly any reason for said witness having animus against petitioner or
reason to falsely claim of papers being found in his pocket was suggested
to Shri Gillurkar much less establishing the same by eliciting any answer
during cross examination in the said regard from him. Further
more,considering the frankness with which Shri Gillurkar had given the
answers also gives an impression of his evidence considered as a whole
having ring of a truth. Thus, upon independent assessment of evidence of
Gillurkar the same does not reveal any plausible reason for not accepting
his main claim of chits being found in the pocket of the petitioner.
31. Apart from the aforesaid it will be necessary to state that the
evidence of Shri Gillurkar is found duly corroborated and/or supported
from the fact that the matters from one chit out of nine chits containing
printed matter seized, were found written in the handwriting of
petitioner ad-verbatam on page number 10 of the answer sheet seized
from the petitioner i.e with regard to the answer given for question no.
2B(3) of Psychology question paper for the examination. The fact of
seized answer sheet of the petitioner containing ad-verbatam matter as
printed on one of seized chits out of nine chits seized from the petitioner
leads to no other inference than the same being used for writing the said
matter in the answer sheet and consequently at the relevant time
petitioner possessing the same. Thus, the fact of petitioner possessing the
nine chits clearly appears to be all probable in facts and circumstances of
the present case, than the same being not seized from him.
32. In the same context, it can be said that, as pointed hereinafter
hardly any material had surfaced in the inquiry to the effect of nine chits
were not found not with the petitioner but were found lying on the ground
nearby his seat and were picked up. The petitioner during his written
explanation dated 19.12.2008 had canvassed such an explanation. It is
significant to note that in Form No.31 perused by us that petitioner has
recorded "copy was placed under the desk but I have'nt seen it". Thus
apparently there exists the contradiction in the stand taken by the
petitioner regarding the place at which the said chits found i.e. lying on
ground or placed under the desk. It is further significant to note that even
taking into account said explanation given by him that the same were
thrown on ground by some other student due to fright, is short of
necessary details about the said student involved in any such incident
occurred. It is difficult to accept that if the petitioner was aware about the
fact of the same being thrown by some other student, he would be unable
to give details or the clue regarding the same.
33. It is difficult to accept his said explanation without such a detail as
the relevant event had occurred during the midst of the period for said
paper i.e. at about 4 to 4:30 out of total period for said paper from 3 to 6
pm. Thus even assuming that any such event had occurred then taking
into account the phase at which the same could be said to have occurred it
is difficult to expect such a person throwing the said printed chits could
have been anybody else other than the student having a seat within the
vicinity of the seat of the petitioner. Having due regard to the same the
non-ability of the petitioner to throw the light upon the same takes away
all the sanctity of the explanation tried to canvass by him. Similarly the
phase at which such explanation has forthcome also suggests the same
being an afterthought explanation rather than same being genuine/true
explanation. Needless to say, thus the same will not deserve any credence.
34. Additionally, it can be added that no explanation had forthcome
from the petitioner at any stage of an enquiry about the fact of the same
material as found printed upon one of the chit was found written in the
answer sheet seized from him. The inability of the petitioner to give a
cogent explanation for said clinching aspect against him i.e. the same
printed matter was found written in his hand for giving answer to said
question No.2B(3) leads to no other conclusion of all the said nine chits
were found with him and one of them was used by him while giving
answer to the question number 2B(3) during the said examination.
35. The learned counsel for the petitioner attempted to explain the
phenomena by urging that even during the provisional declaration of
result petitioner being found to have passed the same with 63% of marks
and the said determination being obviously on the basis of the paper
completed by him upon the fresh answer sheet given to him at 4:30 p.m.
after seizure of earlier sheet is indicative of himself being capable of
passing the said examination without making any copy is a factor
militating against the said aspect. In the same context the learned Counsel
also requested us to take into account the short duration in which the
petitioner had given the paper being a factor reflective of the ability of the
petitioner.
36. Though the said submission apparently appears to be attractive
the same clearly appears to be misplaced in context of judging the issue
which was related with the aspect of petitioner possessing copying paper
and not related with the ability of the petitioner. At the first place it can
be said that even accepting the fact that petitioner was provisionally found
entitled for 63% marks on the basis of the fresh answer sheet given by him
during the remaining period still it is not clear whether the said answer
sheet was containing any answers given by him for said question No.2B(3)
and in the event of having given the same "the same was containing ad-
verbatam matter as found on printed one of the chits out of nine chits
allegedly used by him while writing answer sheet which was seized from
him. In view of the same no cognizance of the same for the purposes as
canvassed can be taken. In the said context we also make it clear that
even the fact of petitioner in the said second answer sheet having
answered the said question or the said answer in event of being found
containing ad-verbatam matter as found one of the sheet may not be again
decisive having regard to the nature of the charge against the petitioner
and the allegation of himself being found possessing not one but nine
chits. Ourself being not required to consider the said aspect as the relevant
material regarding the same being not placed before us in present petition
by either of a party we are refraining ourself from deciding the said aspect
and merely observing that the said feature pointed also cannot be said to
be having effect as tried to be canvassed.
37. Now before considering the said claim of Gillurkar in light of the
material pertaining to other witnesses regarding the relevant facet, it will
not be out of place to state that during the cross-examination he was not
tested to ascertain whether he had told Shri Shelokar of the nine paper
chits being found within the paper of the petitioner. In view of the same, it
is difficult to accept that the claim staked by Shri Shelokar of Shri
Gillurkar having told him accordingly cannot be said to have been
established. Similarly the evidence of Shri Gillurkar who had seized the
said papers is not adduced regarding the vital aspect whether the said
chits were bearing signature of the petitioner and that of the other
members.
38. No doubt, the statement of Additional incharge Shri Shelokar
reveals of having stated of nine objectionable papers being found in the
paper of student, he had candidly admitted during the cross examination
that he had not personally seen the same. However, he gave the correct
number of the room in which the said student was having a seat. The
further answer given that there was distance of 20 ft. between him and
flying squad also clarifies the reason for which he had not personally seen
seizure of the copy papers from the student. To the question as to who
had shown him the same, he had answered that Gillurkar had given him in
the answer-sheet. Thus, considering his entire evidence, his inability to
answer the basis on which he was saying that the same were found with
the student or the relevant facets spoken by him during the cross
examination being not mentioned in the report cannot be said to be a
factor affecting his claim that on the relevant day petitioner was appearing
for examination at L.A.D. Centre in the afternoon and Flying Squad had
visited the said centre, all the class rooms were inspected by the said
squad, he had visited the class rooms along with them and nine
objectionable papers were found. Needless to add that the same to such
extent corroborates the evidence of member of flying squad Shri Gillurkar.
Such a conclusion is inevitable as the answers given by him during cross
examination impliedly explains the reasons because of which he became
aware of copying papers being found with the student i.e. Shri Gillurkar
having given the said papers in answer sheet to him. Probably because of
the same he had stated in his statement of the papers being found in the
paper (answer sheet) of the student. At any rate, the answers candidly
given by him during the cross examination also leads to the conclusion of
his evidence being reliable for the aspects spoken by him except the
precise place at which the said copy papers were found.
39. Now considering answers given by Centre Incharge Smt.
Mangala Baitule, the same only reveals that flying squad had visited on
two occasions and on first occasion there were 3-4 members in the said
squad, while on the second occasion including female, there were 3-4
members. It further reveals that firstly squad had visited at about 4.30 pm
and secondly 15 to 20 minutes thereafter and during first visit she was in
the office while during the second visit she had visited room no.204.
Significantly enough she replied of having not taken signatures of
witnesses on Form No.31 and having not recorded the remarks on the said
form. She also replied that papers found with the student was not bearing
signature of the student. She explained of not mentioning the remarks on
Form No.31 on the count of being busy with checking of the other
students.
40. Thus, considering the evidence of Centre Incharge Smt. Baitule,
she had not claimed of having witnessed the event of seizure of 9 chits
from students effected by Shri Gillurkar. During the cross examination
hardly anything has surfaced affecting the said claim staked by Shri
Gillurkar. Her answer of having not taken the signatures of the witnesses
on Form No.31 apparently appears to be erroneous probably due to the
passage of time in between, as the said form no.31 perused is found
containing such signatures of witnesses including that of the students and
his say. It has been already stated that the stand of the petitioner of the
same being lateron fabricated is devoid of merit due to the same is also
bearing the signature of student-petitioner. The said reasoning would be
equally applicable for not giving any undue credence to the said erroneous
answer given by Smt. Baitule. Thus, alike the evidence of Shri Shelokar,
her evidence also corroborates the evidence of Shri Gillurkar in particular
and that of Shri Shelokar regarding the relevant aspects. Her evidence
and so also the evidence of Shri Shelokar has absolutely no effect of
destroying the evidence of Shri Gillurkar and particularly the fact
established through his evidence of copying papers being found with the
petitioner. Thus, the detailed discussions made hereinabove clearly reveals
that Shri Gillurkar deserves to be termed as reliable witness. Hence the
same merely because there is no corroboration from the oral evidence of
other witnesses, it cannot be gainsaid that crucial aspects of copy paper
being found with the petitioner is not established.
41. Now considering the evidence of Shri Gillurkar, claims staked by
him, the place at which the papers were found as claimed by him, the fact
of Flying Squad having visited the room at about 4.30 PM and during the
said visit, copying papers were found with the petitioner, the explanation
advanced on behalf of petitioner being found to be false within themselves
form a formidable chain leading to sole inference of the copying papers
being found with the petitioner as claimed by Shri Gillurkar as the same
clearly rules out there being any other reasonable hypothesis of such a
papers with one containing matters as found written in the paper of the
petitioner, being found in the said room during the second visit of the
flying squad.
42. Learned counsel for the petitioner having not annexed the
statement of the cross examination of Invigilator, we had no advantage of
taking into consideration the matters spoken by her i.e. the cross
examination for which this court has given the directions to respondent
no.1 during the earlier order. Similarly, though the petitioner has referred
in the petition of there being a witness saying that chits were seized from
the floor of examination room, no such statement of any witness was
brought to our notice for considering the same. It will not out of place to
add that no such claim is found in the statement of invigilator Smt. Apurva
Pathak of which the copy is annexed with the petition.
43. The perusal of the decisions in case of Swapana d/o Tulsidas
Gajare .vrs. The Divisional Secretary, Maharashtra State Board of
Secondary and Higher Secondary Education, reported in 2007 (6) ALL
MR 519 and the decision in a case of Sarat Kumar Panigrahi .vrs.
Secretary, Board of Secondary Education, Orissa, reported in AIR 2003
SC 3560 upon which learned counsel for the petitioner had also placed
reliance also do not show that the same are helpful to the petitioner in any
manner. Such conclusion is inevitable as the decision in a case of Swapna
(supra) reveals the same being altogether upon the different aspect of the
reason being not recorded in the order in question in the said case, the
same was quashed and set aside. In the present case the order impugned
containing the reasons the said decision would not be helpful to the
petitioner. Similarly, the decision in a case of Sarat Kumar (supra) reveals
that in the said case the report was not bearing the signature of invigilator,
the Centre Superintendent who has signed the said report was not present
in the room, there was controversy regarding the paper seized i.e. whether
the same were hand written or sign, the paper was for the Oria language
while the material seized was containing Sanskrit script, in light of the
said circumstances, the order in question in said case was quashed and set
aside. The said decision also cannot be said to be useful to the petitioner
as it is already observed earlier that the Form was found to containing
signature of the invigilator.
44. The learned counsel for the petitioner has lastly urged that in
event of this court being not inclined to accept his submissions then the
lenient view be taken as taken by the Apex Court in the case of S.C.
Udhawan .vrs. Punjab University, reported in AIR 1982 SC 1212, by
taking into consideration the future events occurred with regard to the
appellant involved in unfair means in the said case. The learned counsel
urged that in the said case the Hon'ble Apex Court having due regard to
the facts that the appellant student therein having completed education by
topping the examination and, thereafter, himself being employed had
ordered that use of unfair means during the examination held in 1964
would not be considered as a stigma for any future appointment or
promotion which the said appellant may seek. It was contended that the
same may save the career of the student petitioner as the further events
occurred revealed that during remaining part he had completed the said
paper and provisional result declared as per the directions given reveals of
having passed the said examination with 63% marks. It was urged that so
also he has been successfully continuing his education. It is urged that
having regard to the same the lenient view may be taken of permitting him
to continue the education. It was contended that no useful purpose would
be served by taking strict view as the same would ruin career of the
petitioner or at least few years in spite of himself having passed the further
examination at which he was permitted to appear.
45. The said submissions were rightly opposed by the learned
counsel for respondent no.1 by pointing out that no unduly harsh and only
the prescribe punishment under the rules has been given to the petitioner
and making such a concession would amount to giving the premium in
spite of the petitioner having indulged into unfair means. The learned
counsel was also very much right in submitting that passing of the further
examination to which the petitioner was permitted to appear being only
on equatorial basis and ultimately petitioner being found guilty of unfair
means the said advantage given to him during pending of inquiry in
progress now cannot be continued.
46. In the premises aforesaid, we are unable to find any fault with
the findings arrived by the inquiry committee and/or the order passed by
respondent no.1. Hence, we do not find any merit in the petition and
dismiss the same. Rule stands discharged accordingly.
JUDGE JUDGE
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