Ms. Shah Jayshree Manilal ... vs The State Of Maharashtra
2011 Latest Caselaw 90 Bom

     hvn                                                                                                           WP No.1485 of 2009



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                 
                      ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                  
                                WRIT PETITION NO. 1485 OF 2009

     Ms. Shah Jayshree Manilal Pushpaben,
     of Bombay, adult, Indian Inhabitant,




                                                                                 
     aegd about 44 years, residing at
     Room No. 8, Morden Villa, 7th; Road,
     Santacruz (East), Bombay 400 055.                                                        ...        Petitioner

                                                               Versus




                                                             
     1. The State of Maharashtra,  
        to be served through Government Pleader,
        High Court, Bombay.
                                  
     2. University of Mumbai.
        a University having its office
        situated at M.J. Phule Bhavan,
        Vidyanagari, Kalina, Santacruz (East),
      


        Mumbai 400 068.
   



     3. The Modern Education Society,
        a Society incorporated under the
        provisions of Law having their office





        situated at Senapati Bapat Marg,
        Mahim, Mumbai 400 016.

     4. Mr. N.M. Rajadhyaksha,
        Principal of New Las College





        having office at Senapati Bapat Marg,
        Opp. Matunga Road Station (W. Rly.),
        Mahim, Mumbai 400 016. .                                                   ...        Respondents

     Mr. A.M. Saraogi Advocate for the petitioner.

                                                                     1




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     Ms. S. Shreedharan, A.G.P. for respondent no. 1.

     Mr. R.A. Rodrigues for respondent no.2.




                                                                                                                 
     Mr.A.J. Kenjale for respondent no. 3.




                                                                                  
     Mr. V.S. Kapse for respondent no. 4.

                                      CORAM : P.B. MAJMUDAR




                                                                                 
                                              & MRS. MRIDULA BHATKAR,JJ.

DATED : NOVEMBER 22, 2011

ORAL JUDGMENT (Per Mrs. Mridula Bhatkar,J.):

By way of this petition, the petitioner has challenged the orders

passed by the respondent no. 2 on 12.9.2008 and 17.4.2009 on the

ground that the said orders are illegal and contrary to law. The Petitioner

is a student of law and she appeared for her First Semester examination

of 1st Year LL.B. in the month of November, 2007. Thereafter, she

appeared for the two papers i.e. Labour Law on 21.4.2008 and paper of

Contract-I on 23.4.2008. While writing the paper of Labour Law on

21.4.2008 she was warned by the Junior Supervisor, Senior Supervisor

and by the Principal i.e. Respondent no. 4, that she should not talk with

the other students who were sitting behind her. Despite, she repeated

the act and was caught thrice. Since the aforesaid acts of the petitioner

constitute misconduct, the petitioner was called in the chamber of the

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Principal i.e. respondent no. 4 and in the presence of Junior and Senior

Supervisor, she tendered written apology on 21.4.2008. Thereafter she

was allowed to appear for the second paper of Contract on 23.4.2008. It

is contended that the Petitioner was given an impression that as she has

tendered written apology, no action would be taken against her.

However, respondent no. 4 gave show cause notice on 6.8.2010 and she

was called to answer charges levelled against her of adopting unfair

means and malpractice at the time of paper of Labour Law. She was

asked to appear before the Board of Examinations on 13.8.2008.

Initially, the Petitioner approached this court by way of filing Writ

Petition (L) No. 2267 of 2008. The Division Bench of this Court vide an

order of 17.11.2008 directed the petitioner to approach the Board of

Examinations as she had filed representation to the Vice Chancellor

of the University. The said petition was disposed of by directing the

Board to hear the petitioner and take a decision. The Board of

Examinations after hearing the petitioner, held her guilty for indulging

in malpractices and unfair means at the time of examination. The

decision of the Board which was taken in the meeting of 28.2.2009 was

communicated to the petitioner by letter dated 17.4.2009 by the

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Controller of Examination. It was informed that the Board of

Examinations endorsed the decision of the Unfair Means Enquiry

Committee and accordingly the papers in which she had appeared i.e.

Labour Law and Contract-I were cancelled and a fine of Rs.300/- was

imposed upon her. Further it was communicated that the candidate was

entitled to get all other benefits as per University Rules and Regulations

inclusive of admission. The Petitioner being aggrieved with the order

filed this petition.

2. On behalf of the petitioner, the matter was argued at great length.

It was submitted that as per the charges levelled against the petitioner,

she has committed an act of indulging in talking with other candidates

who was sitting behind her and secondly, the misconduct alleged against

the petitioner was that she wrote some writing in connection with the

paper i.e. Labour Law on her palm. It is submitted that petitioner had

tendered written apology only for talking with other candidate and she

has not apologized regarding writing on her palm and therefore,

allegations about writing something on the palm is afterthought and

concocted one. It is submitted by Mr. Saraogi that when it was found

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that the petitioner was talking with the candidate having seat no. 3772, it

is a contributory act and only petitioner is held guilty and is made a

scape goat. He further submitted that the Authority after accepting this

apology allowed her to appear for the next paper i.e. Paper of Contract

on 23.4.2008. This shows that the authority had no grievance and they

had condoned this act. He pointed out that there is discrepancy in the

report submitted by the Junior Supervisor. In fact Junior Supervisor

himself did not witness any such talking by the petitioner with the other

candidate. He pointed out that ig in the report of Junior Supervisor

which is before the court and the original report which is produced by

the Junior Supervisor, there is discrepancy in respect of the writing on

the hand about the labour Law. He submitted that the statement of the

petitioner was recorded on 13.8.2008 i..e. at the time of enquiry. In the

statement, the petitioner has specifically denied the charges and she has

stated that the apology was tendered without admitting any allegations

and without prejudice. He pointed out that the statement of the other

candidate i.e. seat no. 3772 Payal Shah was recorded by the Board of

Examinations on 18.8.2008. The dates of the enquiry of the petitioner

was 13.8.2008. Thus, it is clear that the enquiry against the petitioner

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was concluded on 13.8.2008, whereby the statement of candidate no.

3772 was recorded subsequently i.e. on 18.8.2008, therefore, petitioner

was denied an opportunity to meet the allegations made by Payal Shah

in her statement. He submitted that this particular statement therefore,

ought not to have been relied.

3. The learned counsel for the petitioner Mr. Saraogi further argued

that there is reference to the recording of statement of the petitioner,

however, that statement was neither produced before the Board of

Examinations nor it is produced before this court. It is submitted that

the said statement of the petitioner is suppressed by the Authority and

only letter of apology is produced. He submitted that the punishment

given by the Authority is severe and as mentioned in the letter of apology

the authority should have taken lenient view and granted mercy.

4. Per contra, Mr., Rodrigues, the learned counsel appearing for the

respondent University argued that the University has conducted the

enquiry in a proper manner as per Rules and Regulations. It is also

submitted that the petitioner was given opportunity to represent her

case and she was also given hearing by the Board of Examinations. Her

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statement was recorded on 13.8.2008 and after giving hearing, the

authority has come to the conclusion. He submitted that the University

has given mildest punishment in this matter. The learned counsel

submitted that powers under Article 226 of the Constitution of this Court

in such enquiry of quasi judicial matters are limited and no interference

is required in this matter. In support of his submissions, he relied upon

the following case laws : (1) Ghazanfar Rashid Vs. Secretary, Board

of High School and Intermediate Education, U.P. Allahabad and

Others, AIR 1979 Allahabad 209, (2) Maharashtra State Board of

Secondary and Higher Secondary Education Vs. K.S.Gandhi and

Others, (1991) 2 Supreme Court Cases 716, (3) Director (Studies),

Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering

Technology, Chandigarh and Ors. Vs. Vaibhav Singh Chauhan

(2009) 1 Supreme Court Cases 59.

5. The learned counsel appearing for respondent No. 4 Principal of

the college as well as for respondent no. 3 Management that the

allegations made against the Principal are absolutely reckless and is

nothing but afterthought. It is submitted that no specific instances have

been quoted in this behalf. It is submitted that when such allegations

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were not made when the petitioner preferred earlier writ petition, even

while present petition was filed, initially such allegations were not made

and by way of amendment such allegations are made at a very late

stage. On the aforesaid basis it is submitted that these allegations are

nothing but afterthought and has been made only to malign the

Principal. It is submitted that even during the enquiry no such

allegations were made at any point of time. It is submitted that th

respondent no. 4 is a respectable person holding the post of Principal of

a Law College since last 10 years and was Dean of Law Faculty in the

past.

6. We have heard the learned counsel at great length and we have

also gone through the entire record of the case. At this stage, it is

required to be noted that while deciding this petition, this court is not

exercising any appellate powers over the decision taken by the

academic body. Our powers under Article 226 of the Constitution are

limited in such type of cases. In a given case, if the decision is contrary

to the principles of natural justice or is a case of absolutely no

evidence, the court may interfere with such decision in its extra

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ordinary jurisdiction under Article 226 of the Constitution. At this stage,

reference is required to be made to various decisions in this behalf.

7. In the case of Maharashtra State Board of Secondary and Higher

Secondary Education (supra), in paragraph 29, the Apex Court has

observed::

"29. ............... The Examination Committee has jurisdiction

to igtake decision in the matter of use of unfair means

not only on direct evidence but also on probabilities and

circumstantial evidence. There is no scope for importing the

principles of criminal trial while considering the

probative value of probabilities and circumstantial

evidence. The Examination Committee is not bound by

technical rules of evidence and procedure as are

applicable to Courts. We respectfully agree with the ratio.

In paragraph 38 of the said judgment, it has been observed as

under :

"38................................................... It is, therefore clear

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that the conclusion reached by the Education Standing

Committee that the fabrication was done at the instance

of either the examinees or their parents or guardians is

amply borne out from the record. The High Court in our

view over-stepped is supervisory jurisdiction and trenched

into the arena of appreciation of evidence to arrive

its own conclusions on the specious plea of satisfying

'conscience of the court'."

     8.         In the case of
                                    ig          Ghazanfar Rashid (supra),                            the Full Bench of
                                  

Allahabad High Court in paragraph 8 observed as under :

"8. .................... .................... The Screening Committee

constituted by the Examinations Committee consists of

experts in the subject concerned who are possessed of

technical knowledge and experience, and they are in a better

position to consider the explanation of an examinee and to

decide the question of use of unfair means. If the

Examinations Committee, relying on the report of the

Screening Committee as well as on the answers of an

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examinee: bona fide arrives at the conclusion that the

examinee used unfair means in answering the questions, it is

not open to the High Court to interfere with that decision

merely because the High Court may take a different view on

re-assessment of those circumstances. It is the function of

the appellate court to take a different view of the evidence

and not the function of a supervisory court to interfere with

the order on the ground of a different possible view. While it

is open to the High Court to interfere with the order of a

quasi-judicial authority if it is not supported by any

evidence or if the order is passed in contravention of the

statutory provisions of law, or in violation of the principles

of natural justice, but the court has no jurisdiction to

interfere with the order merely on the ground that the

evidence available on the record is insufficient or

inadequate or on the ground that a different view could

possibly be taken on the evidence available on the record.

The Examinations Committee has jurisdiction to take

decision in the matter of use of unfair means not only on

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direct evidence but also on probabilities and circumstantial

evidence."

9. We have to consider whether there is any apparent error or

illegality in the process of enquiry or not. Whether principles of natural

justice are violated or not? We have gone through the record before us

and also a file produced by the University and the statements and report

of the Junior Supervisor. The report of the Junior Supervisor dated

21.4.2008 and his statement dated 13.8.2008 are self explanatory. The

Junior Supervisor made a report to the extent of petitioner talking with

other candidates on the same date i.e. on 21.4.2008. In the report he has

mentioned that on three occasions the petitioner was caught while

talking with the other candidate sitting on the back bench by different

supervisory authority. It appears that she was caught first time and she

was warned and action was not taken immediately. The report disclosed

that Principal and Senior Supervisor Mohini Gupta were also present

when she was noticed talking with other candidate. We are of the view

that this report and the statement of the Supervisor is sufficient to hold

that the petitioner was guilty of malpractices and unfair means. It is to

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be noted that there is some discrepancy which is pointed out by the

learned counsel Mr. Saraogi that in the statement of the Junior

Supervisor recorded on 13.8.2008 there is no specific mention that

some writing was found on the palm was in respect of the paper of

Labour Law. However, it appears from both the reports and statements

that fact of writing on the palm by the petitioner was confirmed.

Moreover, incident of talking is incorporated in both the documents.

10. On 21.4.2008 petitioner has tendered written apology admitting

lapse on her part. The said apology also can be said to be a statement

made by her during the enquiry. So there is no question of

suppression of any other statement as argued by Mr. Saraogi. When

such incident of copying or malpractice takes place, it is upto the

Authority how to deal with the situation. At the relevant time, it appears

that the Principal called the petitioner and in the presence of Junior and

Senior Supervisor, she has tendered apology. After she tendered the

apology, she was allowed to appear for the next paper of Contract on

23.4.2008. Simply because the petitioner was permitted to appear for

the next paper itself can not be construed that her act of adopting

unfair means and malpractices was condoned by the Authority. She was

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rightly allowed to appear for the second paper because at that time,

charges of malpractices or adopting unfair means were not proved.

Submissions were made by the learned counsel that the statements of

Payal Shah i.e. candidate having seat No. 3772 was not be considered

as it was recorded on 18.8.2008 and no opportunity was given to the

petitioner to meet the allegations made by Payal Shah. Even though it

is accepted that the statement of Payal Shah was recorded by the

Authority on 18.8.2008, the apology tendered by the petitioner was

sufficient evidence before the Board of Examinations to arrive at the

conclusion. Moreover, the petitioner did not withdraw the apology at

any time. Thus we are of the opinion that the decision taken by the

Board of examinations is correct and we do not find any illegality to

interfere with the said decision. In Para 12 of the Judgment in

Director (Studies), Dr. Ambedkar Institute of Hotel Management,

Nutrition & Catering Technology, Chandigarh and Ors. (supra), the Apex

Court has observed :

"12. The learned Single Judge in the interim order has then

emphasized on the fact that the respondent had apologized

and had confessed to the possession of the chit. In our

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opinion this again is a misplaced sympathy. We are of the

firm opinion that in academic matters there should be strict

discipline and malpractices should be severely punished. If

our country is to progress we must maintain high

educational standards, and this is only possible if

malpractices in examinations in educational institutions are

curbed with an iron hand."

11. While concluding the submissions of the learned counsel for the

petitioner in respect of the allegations made against respondent no. 4

Principal are required to be considered. It was submitted that the

petitioner was innocent. She has not indulged into any kind of

malpractices but a concocted story was made out against her to trap her

because of the ill will of the Principal. It was argued that the Principal

was having bad eye on the petitioner and not as a student but as a

female. Thus it was submitted that the Principal wanted sexual favours

from the petitioner, therefore, he tried to harass the petitioner and this

was one of the methods. The learned counsel for respondent no.4, Mr.

Kapse submitted that if at all such incident or sexual harassment would

have occurred, then no female student would agree to take admission in

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the same college thereafter. But petitioner was granted admission in this

college. It is to be noted that such allegations were not made from the

beginning. The allegations are not specific. We are aware that if at all

female experiences such situation, then she may not speak out

immediately under the fear that she may not be believed by the people.

However, we have to consider each case on its facts and circumstances.

In this case there were many opportunities for the petitioner to speak

out these alleged harassment or her grievance. She could have

reacted when she was questioned on 21.4.2008 at the time of paper of

Labour Law, secondly before the Supervisor and when she gave written

apology, thirdly, when she filed first writ petition (L) No.2267 of 2008,

fourthly when present petition was filed. This point was taken after

considerable time by way of amendment in the present petition. Thus on

neither of these occasions, when she had opportunity to speak about her

grievance, she kept mum. If at all this was the case and it was going to

ruin her career, then no woman would have kept mum about it since she

had an opportunity to agitate about it. We are of this view that these

are afterthought, reckless and irresponsible allegations against the

Principal of the college. Though there is demand of severe action and/or

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compensation by the learned counsel for respondents, we only express

our disapproval and observe that it is unfortunate that a student makes

such allegations against the Principal of the College. With these

findings we dismiss this writ petition as there is no merit. Rule

discharged.

     (MRS. MRIDULA BHATKAR,J.)                                                     (P.B. MAJMUDAR,J.)