Hunar Jasmit Singh Gujral vs Narsee Monjee College Of Commerce ...
2017 Latest Caselaw 4113 Bom

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               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                       ORDINARY ORIGINAL CIVIL JURISDICTION

                            WRIT PETITION (L) NO. 1585 OF 2017


Hunar Jasmit Singh Gujral
Aged 18 yrs., Occ. Student,
R/at. 503, Signia Isle, BKC,
Bandra (East), Mumbai 400 051.                                                  ...        Petitioner

                                         Vs.

1. Narsee Monjee College of Commerce &
Economics, having its address at Juhu
Scheme, Vile Parle (West),
Mumbai 400 056.
2. Parag Ajagaonkar
The Principal of Narsee Monjee College
of Commerce & Economics,
Add. Juhu Scheme, Vile Parle (West),
Mumbai 400 056.
3.Gomathi Iyer
The Convener of Unfair Means Inquiry
Committee, Narsee Monjee College of
Commerce & Economics, having her,
address at Juhu Scheme, Vile Parle(W),
Mumbai 400 056.
4. The University of Mumbai
Having its address at Fort,
Mumbai 400 001.                                                                 ...  Respondents

Mr. Karan Bhosale, with Mr. Sharon Patole, for the Petitioner.
Ms. Manorama Mohanty with Mr. A.P. Singh i/b M/s. S.K. Srivastav 
and Company for the Respondents Nos. 1 to 3.
Mr. Abhishek Tripathi i/b Mr. R.A. Rodrigues for Respondent No.4.


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                                                       CORAM  :  B.R. GAVAI AND
                                                                    RIYAZ I. CHAGLA, JJ.

DATE : 6 JULY 2017.

J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. The Petitioner is a student of the 1st years B.M.S. studying in

the Respondent No.1 college. Respondent No.2 is Principal of the

Respondent college. Respondent No.3 is the Convener of the Unfair Means

Inquiry Committee of the college and Respondent No.4 is University of

Mumbai.

2. The Petitioner by the present Petition is challenging the

show cause notice dated 20th April 2017 and the impugned order

dated 16th May 2017 passed by Respondents Nos. 1 to 3. By the said

impugned order, the performance of the Petitioner in the F.Y. B.M.S.

Semester - II examination held in April 2017 has been treated as null

and void. The Petitioner has been granted opportunity of appearing

for the ATKT examination of F.Y.B.M.S. (Theory) in all the courses in

Semester - II, which will be held in October / November 2018. The

Unfair Means Inquiry Committee on the basis of information available

on record and after hearing the Petitioner had concluded that the

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Petitioner was guilty of "smuggling out and smuggling in of answer

book as copying material" and had recommended the above action

which was approved by the Principal. The Petitioner has by the

present Petition sought the quashing and setting aside of the show

cause notice and impugned order as well as consequential reliefs

thereof.

3. Shri Bhosale, learned counsel for the Petitioner began his

argument by contending that the Petitioner is academically an

excellent student and has relied on her mark sheet issued by

Respondent No.1 in support thereof. Shri Bhosale has contended that

the show cause notice is vague and in violation of the principles of the

natural justice. Shri Bhosale has contended that the Petitioner was

not granted an opportunity of meeting the charges which have been

found against her and the only mention in the show cause notice is of

" possessing a college supplement of the stamp of the previous day i.e.

19th April 2017 and all the written notes of the paper on 20th April

2017, i.e. Business Communication". Shri Bhosale has further

contended that the impugned order has also failed to give reasons and

has only referred to the finding of the Unfair Means Inquiry

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Committee which has held the Petitioner guilty of smuggling out and

smuggling in of answer book as copying material and has gone to the

extent of holding that the Petitioner's performance in all courses at the

examination held in April 2017 to be treated as null and void. Shri

Bhosale has submitted that the Petitioner was singled out by the

Supervisor during the examination on three successive dates i.e. 18th

19th and 20th April 2017. The Petitioner had in fact been provided

the supplementary answer sheets by the supervisor on 20th April 2017

and the supervisor had initially refused to give her the supplementary

sheets but later provided her with the same and the supplementary

sheets had been pre-signed. According to the Petitioner, the

supplementary papers were not available in the classroom and were

called for by the supervisor from outside. The Petitioner has in her

reply to the Principal brought out these facts and has submitted that

the supervisor had after providing the supplementary sheets to the

Petitioner questioned the authenticity of the supplementary sheets

that he himself had provided. The supervisor confiscated the

supplementary sheets and the faculty members of Respondent No.1

were informed and in turn the faculty member, Mr. Conrad called the

Petitioner to the staff room. The Petitioner had to leave the

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examination hall in the midst examination going on. The Petitioner

has alleged that the staff members and faculty of Respondent No.1

included the Vice President had surrounded the Petitioner and the

Petitioner was allowed to complete examination only after she

accepted the version of events stated by the supervisor and signed the

show cause notice as well as the pages of the question paper and

pages of the main answer sheet as well as the supplementary sheets

being used by the Petitioner. Shri Bhosale has contended that the

name of the supervisor had not been disclosed to the Petitioner

despite her specific complaint about the supervisor's conduct and no

action had been taken against him.

4. Shri Bhosale has contended that the entire inquiry against

the Petitioner is unfair and in violation of the principles of natural

justice. He has further submitted that the Petitioner's results of the

courses of Semester II had been withheld by the Respondents and that

the Semester III of B.M.S. Courses had started on 5th June 2017. The

Petitioner was accordingly seeking urgent interim relief viz. that the

Petitioner may be allowed to take admission to Semester III of B.M.S.

Courses and be given credit for all the examinations given by the

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Petitioner and to re-take the examination of Business Communication

conducted by Respondent No.1 on 20th April 2017. The Petitioner

also sought a stay of the impugned show cause notice and order.

5. Smt. Mohanty, learned counsel appearing for Respondents

Nos. 1 to 3 has submitted that every opportunity had been given to

the Petitioner to explain her case during the inquiry held by Unfair

Means Inquiry Committee. Smt. Mohanty contends that the show

cause notice has clearly set out the grounds on which the Petitioner

was charged with unfair means. Smt. Mohanty has referred to the

various stamps of the college and has pointed out that the stamp

which was used on the supplementary sheets was that of the previous

date i.e. 19th April 2017 and that although the question paper

contained five questions, the supplementary sheets contained answers

which were more than the five questions asked. Smt. Mohanty has

tendered to the Court the original supplementary sheets on which the

Petitioner had written the answers and has been able to demonstrate

that the supplementary sheets have been folded at more than one

place. Smt. Mohanty has contended that this goes to show that the

supplementary sheets could not have been provided to the Petitioner

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on the 20th April 2017 but must have been brought in by the

Petitioner to the examination hall with the pre-written answers. Smt.

Mohanty has also contended that the Petitioner has failed to give any

proper explanation as to why the supplementary sheets containing the

notings of the Petitioner were folded and the only explanation has

been given in paragraph 6 of the Affidavit in Rejoinder viz. that the

Petitioner tends to fold answer sheets which allows the Petitioner to

create sections for better understanding and that can be seen from the

previous papers. Smt. Mohanty has also tendered the previous papers

written by the Petitioner and has demonstrated that these papers have

not been folded by the Petitioner.

6. After hearing the arguments, we observe that the

Petitioner appears to have a grievance against the supervisor on three

dates i.e. 18th , 19th and 20th April, 2017. However, it appears that

the Petitioner had not made any complaint against the supervisor on

the previous dates i.e. 18th and 19th April 2017. It was only when

the Petitioner was called out of the examination hall by the supervisor

upon a complaint being made against her to the faculty member of the

college that she had sought to make allegations against the supervisor.

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We are of the considered view that the Unfair Means Inquiry

Committee against whom the Petitioner has no personal grievance has

only after giving an opportunity to the Petitioner to defend the

charges levied against her in the show cause notice viz. of unfair

means, found the Petitioner guilty of the charges viz., "smuggling out

and smuggling in of answer book as copying material" and has

recommended action which has been approved by the Principal. We

are of the considered view that the Unfair Means Inquiry Committee

being an independent body has acted in conformity with the principles

of natural justice and although the show cause notice on the basis of it

could have given more particulars, the Unfair Means Inquiry

Committee has given full opportunity of hearing to the Petitioner and

then only the impugned order has been passed. We are also conscious

of the fact that in exercising jurisdiction under Article 226 of the

Constitution of India, disputed questions of fact as in the present

matter cannot be gone into by the Court. It is well settled that the

Court exercise restraint in adjudicating disputed questions of fact,

particularly in Writ jurisdiction.

7. We are accordingly not inclined to admit the Writ Petition

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and / or grant interim relief, particularly since various facts have been

disputed and these being academic matters are best left to the Unfair

Means Inquiry Committee which has already adjudicated the matter

and given its finding.

8. We accordingly dismiss this Petition with no order as to

costs.

           (RIYAZ I. CHAGLA J.)                                        ( B.R. GAVAI J.)