Sarita D/O. Bodile vs Sant Gadge Baba Amravati, ...
2016 Latest Caselaw 230 Bom

    WP  4653/15                                           1                             Judgment


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                            
                    NAGPUR BENCH, NAGPUR.
                          WRIT PETITION No. 4653/2015




                                                                  
    Sarita D/o Yadaorao Bodile,
    Aged about 48 years, 
    R/o. 'Spandan', Santosh Nagar,
    Ambika Lawns Road, Paratwada,




                                                                 
    Tq. Achalpur, Distt. Amravati.                                                        PETITIONER

                                              VERSUS

    Sant Gadge Baba Amravati University,




                                                 
    through its Registrar.                                                            RESPONDENT

                              
                        Shri B.G. Kulkarni, counsel  for petitioner.
                     Shri Ritesh N. Badhe, counsel for the respondent.
                             
                                       CORAM  : SMT. VASANTI A. NAIK AND
                                                   A.S. CHANDURKAR, JJ.

DATE : MARCH 02 , 2016.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

Whether the performance of a student at a particular

examination could be cancelled and consequential orders could be passed

in view of the cancellation order, without granting an opportunity to the

said student, is the question that arises for consideration in the instant

petition.

2. RULE. Rule is made returnable forthwith. The petition is

heard finally at the stage of admission with the consent of the learned

counsel for the parties.

WP 4653/15 2 Judgment

3. The petitioner, an Assistant Professor and also a Member on

the Board of Studies, had appeared as an examinee in M.A. Part-I

examination in Marathi subject, conducted by the respondent-Amravati

University. The examination centre for the petitioner was C.M. Kadhi

Kala Mahavidyalaya, Paratwada and the roll number of the petitioner was

02674. While the petitioner was solving the paper of 'Arvachin Kavita' on

19.04.2014, the invigilator found a chit near the desk of the petitioner

and a complaint was registered against the petitioner for using unfair

means at the examination. The matter in respect of the alleged use of

unfair means by the petitioner at the examination was considered by the

Unfair Means Enquiry Committee behind the back of the petitioner. The

petitioner was neither served with a show cause notice nor was an

opportunity of personal hearing granted to the petitioner. Without any

opportunity, by the notification dated 29.09.2014, that is impugned in the

instant petition, the performance of the petitioner for the Summer-2014

examination was cancelled on the ground that the petitioner had resorted

to unfair means. The petitioner submitted an application for reviewing

the said punishment, on 21.05.2015. The first and the foremost ground

raised by the petitioner in the said review application was that the order

debarring the petitioner from Summer-2014 examination could not have

been made without granting an opportunity to the petitioner. The review

application was, however, rejected on the ground that it was not filed

WP 4653/15 3 Judgment

within the period prescribed by the rules. Since according to the

University, it was unbecoming on the part of an Assistant Professor and a

Member on the Board of Studies to practice unfair means at the

examination, an order imposing the additional punishment of debarring

the petitioner for one year from conducting any examination work of the

University, was made on 16.04.2015 after hearing the petitioner. The

petitioner ceased to be the Member of the Board of Studies in Music vide

the impugned notification dated 04.06.2015. The orders dated

29.09.2014, 16.04.2015 and 04.06.2015 are impugned in the instant

petition.

4. Shri Kulkarni, the learned counsel for the petitioner,

submitted that the petitioner could not have been punished for using

unfair means at the examination conducted on 19.04.2014 without

granting an opportunity to the petitioner. It is stated that after the

invigilator had found a chit near the desk of the petitioner while the

petitioner was solving the paper of 'Arvachin Kavita', the respondent-

University had neither served a notice on the petitioner nor had granted

an opportunity of personal hearing before the Unfair Means Enquiry

Committee. It is submitted that the impugned orders are punitive and it

is well settled that the compliance of the principles of natural justice is

necessary before imposing the punishment. It is stated that Clause 8(a)

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of Ordinance No.22 of 2001 of the Amravati University provides that, the

Unfair Means Enquiry Committee would adhere to the computerized

procedure of inquiry and punishment, as approved by the Board of

Examination as "A Computerized Procedure of Deciding the Cases of

Unfairmeans and Malpractices in the University Examinations" appended

to Ordinance No.22 of 2001 as Schedule-I. It is submitted by referring to

Schedule-I that without granting an opportunity of hearing, by resorting

to Clause 8(a) of the said Ordinance and Clause 1 of the Appendix to

Ordinance No.22 of 2001, that provides for the "Annulment of the

performance of the student in the University Examination in full", if the

student is in possession of the copying material, the performance of the

petitioner at the concerned examination was cancelled. It is submitted

that though the provisions of Clause 8(a) do not specifically refer to the

application of the principles of natural justice, the said principles have to

be read in Clause 8(a) as by resorting to the said clause, the Unfair Means

Enquiry Committee is empowered to decide the complaint in respect of

malpractices at the examination and recommend the punishment against

the concerned student. It is stated that in the circumstances of the case,

the impugned orders are liable to be set aside.

5. Shri Badhe, the learned counsel for the respondent-University

submitted that the University has complied with the provisions of Clause

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8(a) of Ordinance No.22 of 2001 before imposing the punishment on the

petitioner. It is stated that Clause 8 of the Ordinance does not provide for

an opportunity of hearing and it only prescribes the adherence to the

computerized procedure of inquiry and punishment, as approved by the

Board of Examination as "A Computerized Procedure of Deciding the

Cases of Unfairmeans and Malpractices in the University Examinations",

appended as Schedule-I to the Ordinance. It is stated that by resorting to

Clause 8 and Appendix-A to the said Ordinance, the punishment was

imposed on the petitioner as the petitioner was in possession of the

copying material. It is submitted that Clause 9 of the Ordinance

prescribes for the 'Procedure of Inquiry of Review, Appeals and Referred

Cases'. It is stated that after a student like the petitioner is informed

about the punishment imposed on him/her on the proof of use of unfair

means at the examination, the student is entitled to file an appeal or

review against the punishment and produce evidence in support of his or

her innocence within the prescribed time limit. It is stated that the

petitioner could have proved, by filing the review application, as referred

to in Clause 9(b) and (c) of the Ordinance that the petitioner was

innocent and had not resorted to unfair means at the examination. It is

stated that the petitioner, however, did not avail the opportunity as

provided by Clause 9 of Ordinance No.22. It is stated that in the said

circumstances, the writ petition is liable to be dismissed.

WP 4653/15 6 Judgment

6. On hearing the learned counsel for the parties, it appears that

the respondent-University could not have imposed the punishment of

cancelling the appearance of the petitioner at the examination conducted

in Summer-2014 and further debarring her from participating in the

examination work for one year, without following the principles of

natural justice. The petitioner, who is an Assistant Professor and a

Member on the Board of Studies, has been severely punished by the

respondent-University without granting her an opportunity to defend the

allegations in respect of possession of the copying material, as stated in

the report prepared by the Invigilator, and prove her innocence. The

Unfair Means Enquiry Committee was required to act judiciously and it

was, therefore, necessary for the Unfair means Enquiry Committee to

have heard the petitioner before imposing the harsh punishment.

Admittedly, the Unfair Means Enquiry Committee has neither served a

show cause notice on the petitioner in respect of the alleged user of unfair

means at the examination nor is the petitioner granted an opportunity of

personal hearing. It appears that by following a computerized procedure

of deciding the cases of unfair means and practices in the University

Examinations, the petitioner has been condemned unheard. Even if a chit

was found near the desk of the petitioner while she was answering the

paper of 'Arvachin Kavita' on 19.04.2014, it cannot be said, without

granting an opportunity to the petitioner that the existence of the said

WP 4653/15 7 Judgment

chit near the desk of the petitioner was attributable to the petitioner and

that the petitioner has used unfair means at the examination. In

somewhat similar set of facts, the Constitution Bench of the Hon'ble

Supreme Court has, in the case of Board of High School and Intermediate

Education, U.P. Allahabad Versus Ghansyam Das Gupta & Others,

reported in AIR 1962 SC 1110 (V 49 C 149), held that the action of

cancelling the results of the examinees-respondents therein and

debarring them from appearing at the next examination was vitiated for

want of opportunity to the examinees. The Hon'ble Supreme Court

observed thus in paragraph 7 of the aforesaid judgment :-

"If a statutory authority has power to do any act

which will prejudicially affect the subject, then, although there

are not two parties apart from the authority and the contest is

between the authority proposing to do the act and the subject

opposing it, the final determination of the authority will yet be

a quasi-judicial act provided the authority is required by the

Statute to act judicially."

It was further observed in paragraph 8 of the said judgment that : -

"The statute is not likely to provide in so many

words that the authority passing the order is required to act

judicially; that can only be inferred from the express provisions

WP 4653/15 8 Judgment

of the statute in the first instance in each case and no one

circumstance alone will be determinative of the question

whether the authority set up by the statute has the duty to act

judicially or not. The inference whether the authority acting

under a statute where it is silent has the duty to act judicially

will depend on the express provisions of the statute read along

with the nature of the rights affected, the manner of the disposal

provided, the objective criterion if any to be adopted, the effect

of the decision on the person affected and other indicia afforded

by the statute. A duty to act judicially may arise in widely

different circumstances which it will be impossible and indeed

inadvisable to attempt to define exhaustively."

The Hon'ble Supreme Court went on to add in paragraphs 11

and 12 of the said judgment that :-

"The Examinations Committee of the Board of High

School and Intermediate Education, U.P. appointed under S.13

of the U.P. Intermediate Education Act 2 of 1921, when it

exercises its powers under R.1(1) of Chap.VI of the Regulations

framed under S. 15, in dealing with cases of examinees using

unfair means in examination halls, is acting quasi-judicially

and the principles of natural justice which require that the other

WP 4653/15 9 Judgment

party (namely, the examinee) must be heard, will apply to the

proceedings before the Committee. Though there is nothing

express one way or the other in the Act or the Regulations

casting a duty on the Committee to act judicially, the manner of

the disposal based as it must be on materials placed before it,

and the serious effects of the decision of the Committee on the

examinee concerned, must lead to the conclusion that a duty is

cast on the Committee to act judicially in that matter,

particularly as it has to decide objectively certain facts

which may seriously affect the rights and careers of examinees,

before it can take any action in the exercise of its power under

R.1(1)."

"There is no doubt that many of the powers of

the Committee under Chap.VI are of administrative nature;

but where quasi-judicial duties are entrusted to an

administrative body like this it becomes a quasi-judicial body for

performing those duties, and it can prescribe its own procedure

so long as the principles of natural justice are followed and

adequate opportunity of presenting his case is given to the

examinee."

WP 4653/15 10 Judgment

7. The law laid down by the Hon'ble Supreme Court in the

aforesaid celebrated judgment would squarely apply to the case in hand

and it would be necessary to hold that the action of the respondent-

University of cancelling the Summer-2014 examination of the petitioner

as also her membership on the board of Studies, is bad in law and

vitiated. Though Clause 8 of Ordinance No.22 does not expressly cast a

duty on the Unfair Means Enquiry Committee to act judiciously or comply

with the principles of natural justice, the serious effects of the decision of

the said Committee on the petitioner, or for that matter any examinee

concerned, would lead to a conclusion that a duty is cast on the

Committee to act judiciously, particularly when it has to decide certain

facts objectively and the decision may seriously affect the rights and

career of the examinees like the petitioner. While holding so, we reject

the submission made on behalf of the respondent-University that the

impugned order is not vitiated as though an opportunity was not granted

to the petitioner before the imposition of the punishment by resorting to

Clause 8 of the Ordinance, the petitioner could have availed the

opportunity in a review, that could have been filed under Clause 9 of the

Ordinance. The submission is ill-founded. An opportunity of hearing

cannot be contemplated after the imposition of the punishment in the

circumstances of the case and the principles of natural justice ought to

have been followed before the imposition of the punishment. A post

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decisional hearing could be contemplated only in cases where preventive,

prompt and urgent actions are necessary. Such is not the case here. Also,

in a post decisional hearing, there is a likelihood that the Unfair Means

Enquiry Committee could proceed with a closed mind. In any case, since

a pre-decisional hearing was necessary in this case, the impugned orders

cannot be sustained.

8. Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned orders are quashed and set aside. The respondent-

University is free to take appropriate action against the petitioner in

accordance with law.

Rule is made absolute in the aforesaid terms with no order as

to costs.

                  JUDGE                                      JUDGE





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