Bombay High Court
Anshul Kishor Bhisikar vs State Of Maharashtra Through Its ... on 4 May, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3772 OF 2015
Anshul Kishor Bhisikar,
aged 21 years, occupation :
student, resident of 1404,
New Nandanwan Layout,
Nagpur - 440 024. ... Petitioner
- Versus -
1) State of Maharashtra, through
its Secretary, Department of
Technical Education, Mantralaya,
Mumbai - 440 032.
2) Maharashtra State Board of
Technical Education, through its
Secretary, Government Polytechnic
Building, 4th Floor, 49, Kherwadi
Bandra (East), Mumbai - 400 051. ... Respondents
-----------------
Shri K. Nalamwar, Advocate for petitioner.
Shri M.M. Ekre, Assistant Government Pleader for
respondent no.1.
Shri P.R. Puri, Advocate for respondent no.2.
----------------
CORAM : B.P. DHARMADHIKARI AND
P.N. DESHMUKH, JJ.
DATED : MAY 4, 2016
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ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Looking to the nature of controversy, efforts
were being made to decide writ petition finally.
Accordingly, we have heard Adv. Nalamwar for
petitioner, Shri Ekre, learned Assistant Government
Pleader for
respondent no.1 and Adv. Puri for
respondent no.2 finally by issuing rule and making it
returnable forthwith.
2) The petitioner, who is a student of Polytechnic,
has questioned order dated 9/6/2015 issued by
respondent no.2, by which his performance in Summer
2015 Examination has been cancelled and he is
debarred from appearing in Winter 2015 examination in
6th semester of Diploma in Mechanical Engineering.
3) After hearing respective Counsel on 5/4/2016,
we had directed respondent no.2 to produce records to
enable us to find out whether material used for copying
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and seized from petitioner in examination hall
pertained to subject "Advanced Manufacturing
Processes" (AMP) or "A.C. Machines" (ACM).
Accordingly, Adv. Puri appearing for respondent no.2
has produced necessary material. We have permitted
Adv. Nalamwar for petitioner to inspect it.
4)
The fact that on 2/5/2015 petitioner appeared
for subject "Advanced Manufacturing Processes" is not
in dispute. The alleged copying material is reduced
photo copies, which are stapled to answer paper and
roll number of petitioner is written upon it. According
to petitioner, after the material was seized, his
signature was obtained upon it in token of its
identification and on material stapled with answer
paper, his signature does not appear. However, this
fact of obtaining signature is not disclosed in the writ
petition. Material stapled is of subject "Advanced
Manufacturing Processes" only.
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5) After receipt of show cause notice, petitioner
has given a reply to it and pointed out that he went to
urinal and as there was no water flowing in taps, he
took up a paper to wipe his hands. At that time, he was
apprehended with allegation that he was copying in
examination. According to petitioner, he was not,
therefore, caught in examination hall and alleged
copying material was not seized from him in the
examination hall. He also examined a colleague by
name Amit Sukhdeve, who supported this story.
6) In view of this disputed question, it was
essential for respondent no.2 to examine witnesses to
show that material was seized from the petitioner in
examination hall.
7) Record of enquiry produced by respondent
no.2 does not show that any such Officer in-charge of
Examination Centre or Controller of that Centre was
examined during enquiry. A paper with heading
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"undertaking" with signature of Officer in-charge
Mr. Gautam, Controller Mr. Mankar and three other
persons is found in enquiry record. Below undertaking,
seat number of petitioner has been mentioned and it is
recorded that Seat No. 607808 was caught with
copying material by Special Vigilance Squad on
2/5/2015 at 11.50 a.m. ig Persons signing it, namely,
Officer In-charge and Controller are not part of that
Special Vigilance Squad. Signatures of these persons
appear at the centre of foolscap paper and then after
their signatures, about 4" of paper is blank. At the
bottom of paper, there are three signatures with date
2/5/2015. Signatures are not legible, but below first
signature, name Jacub Curian appears. Who are these
persons is again not clear. These persons are not
examined in enquiry. None of these five persons had
put a declaration on record that they or any one of
them have caught petitioner with copying material in
examination hall.
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8) An undertaking was obtained from petitioner
on 2/5/2015 in which petitioner has stated that he be
permitted to undertake examination further, which
would be subject to decision on alleged use of unfair
means by him. In this undertaking, it is nowhere stated
that copying material was seized from petitioner in
examination hall.
9) In the light of specific defence and this
material on record, it is apparent that seizure of
copying material from custody of petitioner in
examination hall is not established.
10) In enquiry report it appears that only blank
portions are to be filled in. It is signed by Chairman
and two members of Enquiry Committee and they have
put a remark "printed copying material was found in
possession". On what basis, this finding has been
reached is not clear from enquiry report. After enquiry
report, there is again a proforma in which options `yes'
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and `no' are mentioned. The option applicable is
required to be tick marked. In this form, "External
Vigilance" is disclosed as Authority, which caught
examinee. It is stated that student possessed copying
material and he was caught while copying from
material. It is further mentioned that fact that copying
material belonged to student has been established. On
what basis, these findings are recorded is again not
apparent.
11) By the impugned order, performance of
petitioner in Summer 2015 examination has been
cancelled and he has not been permitted to appear for
Winter 2015 examination. Thus, he has already lost
one semester in the process.
12) It needs to be mentioned that impugned order
dated 9/6/2015 is a common order, which is applicable
not only in case of petitioner, but in case of 12 other
students also.
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13) Taking overall view of the matter, we find that
the impugned order dated 9/6/2015 to the extent it
applies to petitioner is unsustainable. It is accordingly
quashed and set aside.
Result of petitioner for Summer 2015
examination shall accordingly be declared and if on
account of this charge any other action is taken, that
action shall also be withdrawn. Writ petition is thus
partly allowed and disposed of. No costs.
JUDGE JUDGE
khj
