Bombay High Court
Sharvary Nandram Gore vs The State Of Maharashtra And ... on 19 July, 2017
Bench: Anoop V. Mohta
WP/4998/2016
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4998 OF 2016
Miss. Sharvary Nandram Gore,
Age - 18 years, Indian inhabitant,
R/o. 132/846, Civil HUDCO,
Opp. Bachat Sarita, Savedi,
Ahmed Nagar - 414003. ... Petitioner
Versus
1. State of Maharashtra,
Through its Principal Secretary,
School Education & Sports Department,
Mantralaya, Mumbai.
2. The Divisional Secretary,
Maharashtra State Board of Secondary
& Higher Education, Pune Divisional Board,
Pune - 411 005.
3. The Deputy Director Education,
Pune Division, Pune - 411 001.
4. Education Officer (Secondary),
Zilla Parishad, Ahmed Nagar - 414 001 ... Respondents
...
Mr. V.D.Sapkal, Adv. holding for Mr.D.R.Adhav, Adv. for Petitioner
Mr. A.V.Deshmukh, AGP for State
Miss. S.P.Mahajan, Advocate for Respondent No.2
...
CORAM : ANOOP V. MOHTA AND
SUNIL K. KOTWAL, JJ.
RESERVED ON : 6th July, 2017
PRONOUNCED ON : 19th July, 2017
WP/4998/2016
JUDGMENT : (Per Sunil K. Kotwal, J.) :-
1. Rule. Rule made returnable forthwith and heard finally
by consent of learned counsel for the parties.
2. By filing this Writ Petition, the petitioner has sought
relief to quash and set aside the impugned order dated 26.11.2015
passed by Respondent No.2 cancelling the performance of the
petitioner at HSC examination held in the month of February-March,
2015 and debarring the petitioner from appearing examination upto
October-2017. The petitioner has also claimed relief to direct the
Respondent No.2 to issue fresh HSC Certificate and Marksheet of
HSC examination to the petitioner held in the month of February-
March, 2015. Though petitioner has initially claimed other various
reliefs at the stage of final hearing, petitioner not pressed other reliefs
and restricted her prayer only to prayer clause "a" and "e" as specified
above. Therefore, other irrelevant pleading of the petitioner is not
considered while passing this judgment.
3. Petitioner is daughter of Shri. Nandram Ganpat Gore and
Smt. Mrunalini Nandram Gore, who are the Secretary and President of
Jai Parvati Mata Shaikshanik, Samajik & Sanskrutik Mandal,
Ahmednagar, a registered trust. The trust also runs Shahid Vitthal
WP/4998/2016
Bhalsingh Junior College, Ahmednagar, from where the petitioner
appeared for HSC examination in the month of February-March, 2015
and secured 89.38 % marks in Science Stream. According to
petitioner, dispute is going on in between trustees of the above said
trust and staff members of the above said Junior College,
Ahmednagar. On account of that dispute, only to victimize the
petitioner, false complaint was submitted by Smt. Indira
Dnyaneshwar Rokade against the petitioner. In the result,
Respondent / Board held inquiry and passed the impugned order dated
26.11.2015 on the ground that, during HSC examination held in the
month of February-March, 2015 the petitioner used unfair means.
4. Respondent filed two affidavits in reply to oppose this
petition on the ground that, Maharashtra State Board of Secondary and
Higher Secondary Education is statutory body constituted under the
provisions of Maharashtra Secondary and Higher Secondary
Education Boards Act, 1965. Respondent No.2 is one of the
Divisional Board amongst various Divisional Boards constituted in the
State of Maharashtra. The Board has exercised its powers conferred
by the Act and led down the 'procedure for inquiry' into the cases of
misconduct and use of unfair means at the examination and also led
down a schedule of punishments for Mal practices. The said
procedure for inquiry and schedule of punishment has withstood
WP/4998/2016
scrutiny of the Hon'ble Supreme Court in the case "Maharashtra
State Board of Secondary & Higher Secondary Education Vs.
K.S.Gandhi, [1991(2) SCC 716]". In the year 1985, the State Board
evolved the procedural guidelines for inquiry in case of use of unfair
means, as per the direction issued by this Court. The schedule of
punishment has been amended from time to time and part B of the
Schedule of punishment deals with candidates appearing for 10 th and
12th standard examination indulging in the act of Mal practices in the
examination. According to respondents, the impugned order was
passed after due compliance with principles of natural justice and after
holding proper inquiry, according to the Procedure for Inquiry led
down by the Board, after having given inspection of relevant
documents and an opportunity of being heard to the petitioner. Unless
there is violation of principles of natural justice or contravention of
statutory provisions the Court should not interfere. Next contention of
respondent is that, Smt. Indira Dnyaneshwar Rokade, mother of
Ankita Dnyaneshwar Rokade student of 12th standard science made
compliant dated 07.09.2015 against the petitioner that, she adopted
Mal practices while appearing for the HSC examination from Jai
Parvati Mata, Junior College, Ahmednagar. After receipt of that
complaint, the Respondent No.2 held inquiry. After finding prima
facie case, he decided to hold regular inquiry in the matter and
WP/4998/2016
accordingly appointed Shri. K.D.Bhujbal, Block Education Officer as
Inquiry Officer. As per procedure, notices were issued to the
petitioner. During inquiry petitioner did not produce any witness as
well as any documentary evidence and therefore, question of cross-
examination did not arise. The Inquiry Officer after considering the
evidence collected, reported that, petitioner had used unfair means
during HSC examination, by keeping copying material with her and
by writing the papers with the help of teachers by using the copying
material. The inquiry report was placed before Standing Committee
for its approval as per rules and on 26.11.2015 Standing Committee
resolved to confirm the punishment granted by Inquiry Officer. In the
result, on 26.10.2015 Respondent No.2 issued the notification for
debarring the petitioner and for cancellation of her performance in
HSC examination. According to respondents, the required procedure
of inquiry was followed and the principles of natural justice were
followed by the respondents and therefore, this petition is devoid of
merits.
5. Learned Advocate for the petitioner assailed the domestic
inquiry held at the instance of Respondent No.2, only on the ground
that, the rule of natural justice is not at all followed by the respondent
and the Inquiry Officer. On the other hand, learned Advocate for
respondents supported an order passed by Respondent No.2 and
WP/4998/2016
contended that, every opportunity of hearing was awarded to the
petitioner during the domestic inquiry.
6. Respondents have filed 'procedure for inquiry' and
schedule of punishment. Same rules are also relied by learned
Advocate for the petitioner while assailing the inquiry conducted by
Respondent No.2. Admittedly the rules regarding the procedure for
inquiry are framed in accordance with law and these rules are also
approved by Hon'ble Supreme Court as pointed out by respondent in
reply affidavit. Therefore, the binding nature and legality of
procedure for inquiry is not a disputed question in between the parties.
7. Learned Advocate for the respondent has placed reliance
on "Board of High School and Intermediate Examination U.P.
Allahabad and Another Vs. Bagleshwar Prasad, [AIR 1966
(Supreme Court), Page 875]. The ratio of this authority is that unless
there is justification to do so, Court should be slow to interfere with
the decisions of Domestic Tribunals appointed by educational bodies
like the Universities. In dealing with the validity of impugned orders
passed by Universities, under Article 226, the High Court is not sitting
in Appeal over the decision in question. Its jurisdiction is limited and
though it is true that, if the impugned order is not supported by any
reason at all the High Court would be justified to quash that order.
WP/4998/2016
8. There cannot be two opinions regarding the legal
principles set out by Hon'ble Apex Court. Taking into consideration
the limited scope of the inquiry, now proceed to analyse the material
placed by the parties to ascertain whether basic principles of natural
justice are followed, by Inquiry Officer as well as by respondents,
while passing adverse orders against the petitioner.
9. As observed above, the inquiry held by Block Education
Officer was in accordance with procedure for inquiry, which is
binding to both the parties. Learned Advocate for the petitioner
objected the validity of appointment of Inquiry Officer on the ground
that, it is in breach of Rule 4(a) of Procedure for Inquiry. Rule 4(a) &
4(b) reads as under :
4(a) - Upon receipt of a complaint about any misconduct or
suo motu and on his being satisfied about the need of holding
an inquiry under procedure, the chairman of the Divisional
Board may entrust the inquiry into the alleged misconduct to
any member / member of the Divisional Board other than the
members of the standing committee (herein referred to as
inquiry officer).
4(b) - The chairman of the Divisional Board may delegate
his powers under the foregoing clause to the Divisional
Secretary.
WP/4998/2016
After going through the Rule 4(a) and 4(b) it emerges
that, if the Chairman of Divisional Board is satisfied about need of
holding inquiry, he can entrust the inquiry to any 'member of
Divisional Board' other than the members of Standing Committee.
This power of Chairman can be delegated to Divisional Secretary.
Therefore, there remain no doubt that, Respondent No.2, Divisional
Secretary has full powers to appoint Inquiry Officer. However, as per
Rule 4(a) the inquiry should be entrusted to any member of Divisional
Board other than the member of Standing Committee. In the case at
hand the inquiry is entrusted to Block Education Officer, who is not
member of Divisional Board. Thus as pointed out by Advocate for the
petitioner, the appointment of Inquiry Officer itself is illegal. The
learned Advocate for respondents tried to justify this appointment on
the ground that, no member of Divisional Board was available at that
relevant time. However, such lame explanation cannot be accepted,
when the pleading of respondent is absolutely silent about non
availability of member of Divisional Board as Inquiry Officer.
10. The main attack of learned Advocate for the petitioner is
regarding not awarding proper opportunity to the petitioner to defend
herself in the inquiry held by the Inquiry Officer, regarding the
allegation of unfair means alleged to be practiced by her during HSC
WP/4998/2016
examination. He has drawn our attention to Rule 5(a) and 5(b) of
procedure for inquiry, which reads as under :
5(a) - On any inquiry being entrusted to the Inquiry Officer,
he shall give notice in writing to the candidate and / or the
members of the staff concerned setting out there in the nature
of the misconduct alleged against him and calling upon him
to show cause within the time to be stipulated by him which
shall not be more than 15 days from the issue of the notice as
to why penalty as provided for in clause 14 of the Procedure
should not be imposed on him. Such notice shall also set out
the punishment that may be imposed on the Candidate or
member of the staff as the case may be. Such notice shall be
sent under Registered Post Acknowledgement Due.
5(b) - The Inquiry Officer to the candidate concerned by
such notice an opportunity to inspect the relevant documents
which are proposed to be relied upon during the inquiry and
shall give inspection of the said documents in his office on
the day and at the time appointed by him in such notice.
A bare glance at Rule 5(a) of procedure for inquiry makes
it clear that, the first stage the Inquiry Officer must follow is that, he
shall give notices in writing to the candidate against whom inquiry is
initiated regarding use of unfair means and in that notice the Inquiry
Officer shall set out the nature of misconduct alleged against that
student and calling upon him to show cause within the time, not more
than 15 days from the date of issue of notice as to why penalty as
provided for in clause 14 of the procedure should not be
WP/4998/2016
imposed on that student. This rule also provides that, such notice shall
also set out the punishment that may be imposed on candidate
(student). The mandatory requirement of this Rule is that this notice
shall be sent under Registered Post Acknowledgement Due.
According to the learned Advocate for petitioner neither such notice
was served upon the petitioner by Inquiry Officer in compliance with
Rule 5(a) nor such notice is placed on record, which shows that, all
particulars are mentioned in the notice as mandated under Rule 5(a).
11. Learned Advocate for the respondent has drawn our
attention towards notice dated 27.10.2015, 28.10.2015 and submitted
that, these notices were served to the petitioner by Inquiry Officer
before holding the inquiry.
12. However, after going through these notices it emerges
that, these notices were issued by Respondent No.2 to 'Center
Incharge of Examination Center 208, Ahmednagar'. Notices no where
reflect that, it was addressed to the petitioner. In these notices, nature
of the misconduct alleged against the petitioner, nature of the
punishment which may be imposed on the petitioner, are not
mentioned, which are the basic requirement of Rule 5(a) of the
procedure for inquiry. So also no document is placed on record by
learned Advocate for the respondent to show that, these notices were
WP/4998/2016
sent under Registered Post Acknowledgement Due and such notices
were served to the petitioner giving an opportunity to submit her say,
as provided under Rule 5(a) of procedure for inquiry. Thus, there is
total breach of Rule 5(a) of procedure for inquiry.
13. Rule 5(b) of this procedure for inquiry further provides
that, opportunity should be given to the student against whom inquiry
is initiated to inspect the relevant documents proposed to be relied by
the department and date and time of such inspection shall be
mentioned in the notice issued under Rule 5(a). However, obviously
the above referred notices no where indicate that, such opportunity of
inspection of the documents was awarded to the petitioner, at any
particular date and time fixed by the Inquiry Officer for inspection.
Thus, I have no hesitation to hold that, while conducting the inquiry
against the petitioner, the respondents committed total breach of Rule
5(a) and 5(b) of procedure for inquiry.
14. Rule 7 of procedure for inquiry, reads as under :
7 - The witnesses produced during the inquiry shall be
subject to cross-examination but the standard of cross-
examination may not be the same as in the courts of law or in
inquiries before or conducted by person learned in law.
Similarly admissibility and reliability of documents will be
considered by the Inquiry Officer with regard to the nature
and purpose of the inquiry and with sense of fairness towards
the person under inquiry and with due consideration of the
WP/4998/2016
public interest.
Rule 7 of procedure for inquiry further provides that,
witnesses produced before the inquiry should be subjected to cross-
examination by the student against whom the inquiry is initiated.
Though learned Advocate for respondent has placed on record copies
of statements of the witnesses relied by the Inquiry Officer, admittedly
opportunity of cross-examination of these witnesses is not awarded to
the petitioner. The explanation given by respondents in their reply as
well as during argument is not at all acceptable for the reason that only
because petitioner did not examine defence witness, it does not mean
that, she cannot cross-examine the witnesses examined during the
inquiry. Thus, obviously respondents and Inquiry Officer have
committed total breach of Rule 7 of procedure for inquiry.
15. Rule 9 of the Procedure for Inquiry reads as under :
9 - All documentary or other evidence which may be
collected or recorded shall be admissible as an evidence and
may be relied upon by the Inquiry Officer. However, the
person under inquiry shall have an opportunity to refute such
evidence and if properly refuted may / be rejected by the
Inquiry Officer.
This Rule 9 provides that, opportunity must be given to
the student facing inquiry to refute the evidence which may be relied
upon by the Inquiry Officer. However, from the reply of respondents
WP/4998/2016
as well as the documents placed on record it becomes crystal clear
that, no such opportunity was awarded to the petitioner by the Inquiry
Officer to refute evidence relied by him.
16. Thus, we are fully satisfied that, the inquiry conducted by
Block Education Officer against petitioner regarding the alleged unfair
practices during HSC examination held in the month of February-
March, 2015, is totally against the rules of Procedure for Inquiry. The
respondents have also totally committed the breach of rule of natural
justice. On this count alone the entire inquiry conducted against the
petitioner and the impugned order passed by Respondent No.2 against
the petitioner as well as consequential action taken by Respondent
No.2 is vitiated as illegal. It follows that, impugned order passed by
Respondent No.2, dated 26.11.2015 and the consequential notification
dated 26.11.2015 deserve to be quashed by allowing this Writ
Petition.
ORDER
(1) Petition is allowed in terms of prayer clause "a" and "e"
of the petition.
(2) The impugned order dated 26.11.2015 passed by
Respondent No.2 and the consequential notification
dated 26.11.2015 issued at the instance of respondent
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are quashed and set aside.
(3) Respondent No.2 is directed to issue fresh HSC
Certificate and Marksheet of the examination held in the
month of February-March, 2015, to the petitioner within
period of four weeks from the date of this order.
(4) Rule made absolute. No order as to costs.
(SUNIL K. KOTWAL, J.) ( ANOOP V. MOHTA, J.)
...
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