Bombay High Court
Atharva Prakash Naukarkar vs Maharashtra National Law University ... on 10 October, 2024
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-OS:15904-DB
BDP-SPS
BHARAT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DASHARATH
PANDIT ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
BHARAT
DASHARATH
PANDIT
Date: 2024.10.10
18:19:30 +0530
WRIT PETITION (LODGING) NO.21030 OF 2024
'X' ].... Petitioner
VERSUS
1] Maharashtra National Law University ]
Mumbai (MNLU), Through its Vice ]
Chancellor, 2nd Floor, MNLU-CETTM ]
Campus, MTNLBuilding, Technology ]
Street, Powai, Mumbai - 400076 ]
]
2] Maharashtra National Law University ]
Mumbai (MNLU), Through its Registrar, ]
nd
2 Floor, MNLU-CETTM Campus, MTNL ]
Building, Technology Street, Powai, ]
Mumbai - 400076 ]
]
3] Internal Complaints Committee (ICC), ]
Maharashtra National Law University, ]
nd
Mumbai, (MNLU) 2 Floor, MNLU- ]
CETTM Campus, MTNL Building, ]
Technology Street, Powai, Mumbai-400076 ]
]
4] 'Y' ]
Maharashtra National Law University, ]
nd
Mumbai (MNLU), 2 Floor, MNLU- ]
CETTM Campus, MTNL Building, ]
Technology Street, Powai, Mumbai-400076 ].... Respondents
Mr. Mihir Desai, Senior Advocate with Mr. Abhijit Desai,
Mr. Karan Gajra, Ms. Mohini Rehpade, Mrs. Daksha Punghera,
Mr. Vijay singh with Ms. Sachita Sontakke, Mr. Digvijay
Kachare, Mr. Abhishek Ingale instructed by Desai Legal,
Advocates for the petitioner.
WPL-21030-24.doc 1/49
::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:57 :::
Dr. Uday Warunjikar with Mr. Jenish Jain, Mr. Dattaram Bile,
Mr. Aditya Kharkar, Advocates for respondent nos. 1 to 3
(MNLU).
Mr. Navroz Seervai, Senior Advocate with Ms. Gulnar Mistry,
Ms. Pooja Thorat, Mr. Amar Bodake, Ms. Trisha Choudhary,
instructed by M.V. Thorat for respondent no.4.
CORAM : A.S. CHANDURKAR & RAJESH S. PATIL, JJ.
Arguments were heard on : 28/08/2024
Judgment is pronounced on : 10/10/2024
JUDGMENT :
(Per A. S. Chandurkar, J.)
1] The petitioner, a student pursuing B.A.LL.B.
(Honours) Course with the Maharashtra National Law
University, Mumbai has approached this Court under Article
226 of the Constitution of India raising a challenge to the order
dated 21/06/2024 passed by the Vice Chancellor on the
appeal preferred by the petitioner challenging the
communication dated 17/06/2023 issued by the in-charge
Registrar expelling him from the University with immediate
effect.
2] Rule. Rule made returnable forthwith and heard
learned counsel for the parties.
3] The facts giving rise to the present proceeding are
that the petitioner - hereinafter referred to as 'X', a student of
the 2019-2024 B.A.LL.B. (Honours) batch is alleged to have
indulged in objectionable behaviour with the 4 th respondent -
hereinafter referred to as 'Y'. She was required to make a
complaint on 01/03/2023 to the Internal Complaint
Committee, MNLU - ICC of an incident stated to have taken
place on 26-27/02/2023. The complaint was considered by
the ICC and on the basis of material placed before it, report
dated 20/05/2023 came to be submitted. The ICC
recommended action against 'X' on the ground that he was
found guilty of sexual harassment for the second time.
Despite the earlier punishment of expulsion from the hostel,
no reform in his conduct was noticed. It was thus
recommended that 'X' should be expelled from the University
Rolls. On the basis of the aforesaid recommendation, the in-
charge Registrar issued an office order on 17/06/2023
expelling 'X' from the MNLU with immediate effect. His name
was directed to be struck off from the Rolls of students.
4] Being aggrieved by the order of expulsion, 'X'
preferred an appeal before the Vice Chancellor. After
considering the said appeal, the Vice Chancellor on
30/08/2023 found that the appeal was devoid of merit.
However, noting that 'X' was in the last year of his academic
programme, a humanitarian approach was taken and he was
given a chance to appear for the end Semester Examination at
the completion of the academic session along with repeaters as
a matter of grace. 'X' being aggrieved by the decision in the
appeal preferred Writ Petition (L) No.31150 of 2023 challenging
the order dated 30/08/2023 passed by the Vice Chancellor.
One of the grounds of challenge raised was that the appeal
was decided under Rule 40 of the Working Rules for Internal
Complaints Committee which Rules were not applicable to the
facts of the case and that the matter was governed by
University Grants Commission (Prevention, prohibition and
redressal of sexual harassment of women employees and
students in higher educational institutions) Regulations, 2015
hereinafter referred to as "the Regulations of 2015". 'Y', the
complainant, was also aggrieved by the decision taken in the
appeal principally on the ground that the said appeal was
decided without hearing her. She therefore preferred Writ
Petition (L) No.9713 of 2024 challenging the order passed by
the Vice Chancellor.
5] Both the writ petitions were heard together.
In the common judgment of this Court dated 26/03/2024 it
was noticed that the appeal preferred by 'X' raised various
grounds that were required to be considered including the
applicability of the Regulations of 2015 framed by the UGC. It
was further found that 'Y' was not heard when the appeal was
decided by the Vice Chancellor. On these counts, the Vice
Chancellor was directed to re-consider the appeal preferred by
'X' after also hearing 'Y'. On remand, 'X' submitted an 'appeal
statement' dated 21/05/2024. He stated that after careful
consideration he had decided not to continue with any further
arguments or contentions and that he did not wish to prolong
the said process any further. He further stated that his
primary goal at that stage was to move forward in his life and
focus on his academic and personal growth. He requested that
since a period of one year had elapsed after occurrence of
alleged incident and that his scheduled curriculum for the
2019-2024 batch had been completed, his appeal be
considered with compassion and empathy. The "appeal
statement" indicated that 'X' did not desire to raise any
specific challenge to the findings recorded and the
recommendations made by ICC.
6] The Vice Chancellor considered the appeal afresh.
'X' and 'Y' were heard on 21/05/2024. After considering the
submissions made on behalf of 'X' and 'Y', it was held that the
report as submitted by the ICC did not call for any
interference. The Vice Chancellor then referred to an earlier
report of the ICC dated 03/06/2022 wherein it was
recommended that 'X' should be expelled and his name
should be struck off from the Rolls of the University including
denial of re-admission in MNLU, Mumbai. He observed that
previously the punishment of expulsion from the hostel had
been imposed on 'X' but there had been no reform in his
conduct. On that count, the appeal preferred by 'X' came to be
rejected and the order of expulsion dated 17/06/2023 came to
be confirmed. It was directed that the said order of expulsion
be implemented forthwith. 'X' being aggrieved by the order
dated 21/06/2024 has filed this writ petition raising a
challenge to the order of expulsion.
7] Mr. Mihir Desai, the learned Senior Advocate for the
petitioner referred to the relevant facts leading to the present
proceedings and submitted that the petitioner's challenge was
based on the aspects of procedural fairness and
proportionality. Referring to the relevant provisions of the
Regulations of 2015 it was submitted that in accordance with
Clause-8 thereof the inquiry ought to have been conducted.
The ICC was required to have inquired into the complaint in
accordance with Working Rules for Internal Complaints
Committee of MNLU, Mumbai by granting reasonable
opportunity to 'X' and 'Y' for presenting and defending the
case. Though 'X' was called before the ICC on two occasions,
he was not granted any opportunity to cross-examine 'Y' or the
witnesses examined by 'Y'. He took the Court through the
recommendations by the ICC dated 20/05/2023 and
submitted that various procedural safeguards had not been
followed. Referring to the Regulations of 2015 and especially
Clause 4(1)(c) and Clause 8(6) thereof it was submitted that no
show cause notice as contemplated on the action proposed to
be taken against 'X' was issued. The order of punishment was
required to be passed after granting an opportunity of hearing
to 'X' which was not done. Absence of such notice definitely
caused prejudice to 'X'. He submitted that though 'X' in his
appeal statement had stated that he did not desire to advance
any further arguments or contentions, it was incumbent upon
the Vice Chancellor to have followed the procedure prescribed
under the Regulations of 2015 in its true spirit. The
punishment of expulsion was imposed without giving any
show cause notice.
8] On the imposition of penalty of expulsion, the
learned Senior Advocate submitted that the said punishment
was grossly disproportionate and if implemented the same
would completely take away the academic career of 'X'.
According to him, the incident in question was no doubt
serious and that by the earlier order passed by the Vice
Chancellor, 'X' had been expelled. On a humanitarian ground
however he was permitted to complete his 9 th and 10th
Semester and the outcome of said examinations had been
made subject to outcome of the appeal after remand. Referring
to the aspect of reformation it was submitted that instead of
the penalty of expulsion, a lesser punishment coupled with
steps for reformation ought to have been imposed on 'X'.
Referring to Rule 31 of the Working Rules it was submitted
that penalties prescribed therein pertained to employees of
MNLU and those could not be imposed in the present
circumstances. Attention was invited to Clause 10(2) of the
Regulations of 2015 to urge that reformative punishment
and/or performance of community services in the form of
penalty could have been considered. To substantiate his
contention in this regard, reliance was placed on the decisions
in Vuribindi Mokshith Reddy vs. Birla Institute of Technology &
Science and another 2024 (3) Mah LJ 264, T.T. Chakravarthy
Yuvaraj and others vs. Principal, Dr. B.R. Ambedkar Medical
College, AIR 1997 Kar 261 and the judgment in W.A.(MD) Nos.
1339 to 1343 of 2017 decided on 08/02/2018 in Registrar,
Gandhigram Rural Institute Deemed University, (Ministry of
Human Resources Development, Govt. of India), Gandhigram,
Dindigul District-624 302 vs. Hussain Mohammed BadhusaI
decided by the Madurai Bench of Madras High Court. It was
thus submitted that taking an overall view of the matter, the
Court ought to exercise discretion under Article 226 of the
Constitution of India and grant reliefs as prayed for.
9] Dr. Uday Warunjikar, learned counsel appearing for
MNLU opposed the writ petition. According to him, the
penalty imposed by the Vice Chancellor was in accordance
with law and proportionate to the conduct of 'X'. This was after
considering all relevant aspects of the matter. The issue of
reformation was relevant only if a solitary act of misconduct
was committed by a student and not when such conduct was
repetitive. A penalty had been imposed on 'X' pursuant to
report dated 03/06/2022 submitted by the ICC which was
accepted by 'X' and despite that he was involved in another
incident. 'X' was therefore not entitled to any concession
whatsoever since MNLU was concerned with discipline at its
campus. Relieving 'X' of any penalty would result in conveying
a wrong message and hence 'X' was not entitled for any
sympathy. It was submitted that the decisions relied upon by
the learned Senior Advocate for the petitioner were not
applicable to the facts of the present case. For all these
reasons, no case had been made out to interfere in exercise of
writ jurisdiction and the writ petition was liable to be
dismissed.
10] Mr. Navroz Seervai, learned Senior Advocate for 'Y'
vehemently opposed the submissions made on behalf of the
petitioner. According to him, there were earlier complaints
against 'X' and despite action being taken against him, his
conduct and behaviour had not undergone any change which
resulted in the present complaint. In the earlier round of the
present proceedings, an opportunity was granted to 'X' to
raise a challenge to the recommendations made by the ICC. 'X'
however did not choose to avail of that opportunity as was
evident from his appeal statement wherein he stated that he
did not desire to advance any further arguments or
contentions. No grievance was raised by 'X' as regards failure
to comply with the procedural requirements under the
Regulations of 2015 in the appeal filed by him. Thus having
chosen not to avail of the opportunity granted, it would not be
permissible for 'X' to now raise a challenge to the
recommendations of the ICC in the writ petition. The
recommendations of the ICC had thus attained finality and it
would therefore not be necessary to have a re-look at the
same.
On the aspect of proportionality, it was submitted that
this Court under Article 226 of the Constitution of India would
not be justified in substituting the punishment imposed by the
Vice Chancellor. It could not be said that the punishment
imposed was shockingly disproportionate given the earlier
conduct of 'X'. The impugned decision did not suffer from any
unreasonableness as recognized by the Wednesbury principle.
The overall conduct of 'X' was also required to be taken into
consideration including the fact that after tendering an
apology, he had thereafter retracted from the same. Failure to
avail of an opportunity to assail the recommendations of ICC
was also a relevant aspect as 'Y' had submitted a detailed
representation putting forth her stand. The punishment as
imposed was thus proportionate to the conduct of 'X' especially
in the backdrop of the fact that on an earlier occasion he had
been expelled from the hostel. The entire matter was
considered by the ICC which included Faculty Members.
Reference was also made to the e-mail messages made by
various students of the same batch of which 'X' was a member
which indicated the feelings of his batchmates against him. To
substantiate his contentions based on the aspect of
proportionality, the learned Senior Advocate referred to the
decisions in Chief Constable of the North Wales Police vs.
Evans, 1982 Weekly Law Reports 1155, Lieutenant General
Manomoy Ganguly, VSM vs. Union of India and others, (2018)
18 SCC 83 and the judgment of the Madhya Pradesh High
Court in Prince Raj vs. State of Madhya Pradesh and others,
Writ Petition No.3654 of 2024, dated 21/02/2024. Attention
was also invited to the decisions in Anuradha Bhasin vs. Union
of India, (2020) 3 SCC 637 as well as decision in Priyanka
Omprakash Panwar vs. State of Maharashtra and another,
(2009) 4 Mh.L.J. 847. It was thus submitted that there was no
case made out to interfere in exercise of writ jurisdiction and
the writ petition was liable to be dismissed.
11] We have heard the learned counsel for the parties at
length and with their assistance we have also perused the
documentary material on record. We have thereafter given our
thoughtful consideration to the issues arising for
determination. At the outset, it would be necessary to refer to
certain factual aspects that would be relevant for adjudicating
the prayers made in the writ petition. 'X' is a student of the
2019-2024 B.A.LL.B. (Honours) batch while 'Y' is a student of
2023-2028 batch pursuing the same course. A valedictory
dinner in view of the Justice M.L. Pendse National
Environment Law Moot Court Competition was organized at
Rude Lounge, Powai. The ICC report dated 20/5/2023 refers
to the said dinner as a University function. The said venue is
stated to be a Bar & Restaurant and a part thereof was booked
and converted into an Organizing Committee Zone. The said
dinner was held on 26/02/2023. In the light of the alleged
incident that occurred during the course of the said dinner, 'Y'
filed her complaint on 01/03/2023 with the ICC. In the
proceedings before the ICC, the statement of 'X' and one of his
witnesses was recorded. Similarly, the statement of 'Y' and her
witnesses as well as the statements of Faculty Members and
staff came to be recorded. In its report signed by 9 out of 11
members, it was recommended that while selecting a venue
outside the University campus, due diligence ought to be
undertaken that no alcohol was available for sale. Further, the
venue ought to be such that there should be no interface with
uninvited people and that the University staff should be
vigilant, keeping a watch on students for any misbehaviour,
indecent activity or bringing of any alcohol/prohibited
substance. The ICC in its recommendations noted that it was
for the second time that 'X' was found guilty of sexual
harassment and that the earlier punishment of expulsion from
the hostel had not brought any reform in his conduct. It
observed that he did not deserve any sympathy and should
thus be expelled from the University Rolls.
This recommendation of the ICC was accepted and 'X', a
student of fourth year was expelled from the University with
immediate effect. This penalty of expulsion is relatable to
Clause 10(2)(c) of the Regulations of 2015. The appeal
preferred by 'X' was however considered under Rule 40 of the
Working Rules and by adopting a humanitarian approach, 'X'
was permitted to complete his academic session as a matter of
grace. By the time the appellate order dated 30/08/2023 was
set aside in the earlier round of the proceedings, 'X' had
appeared for the 9th and 10th Semester Examinations of the
B.A. LL.B. (Honours) Course that were held in May-June,
2024. His results however have been withheld being
dependent on the outcome of the appeal preferred before the
Vice Chancellor.
Procedural Fairness
12] The petitioner's challenge based on procedural
fairness is required to be taken up first for consideration. After
remand of the proceedings, it is evident that 'X' chose not to
assail the findings recorded by the ICC in its report dated
20/5/2023 and stated in his appeal statement that he did not
desire to urge any further contentions. It would thus have to
be accepted that the recommendations made by the ICC are on
the basis of the material that was placed before it. We
therefore do not find any reason to re-consider the
observations made by the ICC on the basis of which it
proceeded to recommend the expulsion of 'X' from the
University. The recommendations as made on 20/05/2023
are thus accepted and the same have to be taken as the basis
for inflicting punishment on 'X'. The procedure followed by the
ICC which culminated into its report dated 20/5/2023 having
not been specifically challenged despite grant of an
opportunity to 'X' while remanding the proceedings leads us to
conclude that 'X' was satisfied by the conduct of the
proceedings and he accepted its report. The conduct of
proceedings before ICC and the sufficiency of material placed
before it is therefore not required to be gone into in the present
proceedings.
Thus, in so far as the aspect of procedural fairness is
concerned, the same is not required to be examined till the
stage the report of the ICC dated 20/05/2023 was submitted.
We would thus proceed on the basis that the recommendation
made by the ICC on 20/05/2023 is valid and forms the basis
of action against 'X'.
13] We may now turn to the decision making process
adopted by the Vice Chancellor based on the recommendation
of the ICC. In this context, it would be necessary to refer to
Clause 8 of the Regulations of 2015. The said Clause
indicates the manner in which the ICC is required to conduct
an inquiry. After the ICC submits its report and the Executive
Authority of the Higher Educational Institution - HEI decides
to act on the said recommendation, the provisions of Clause
8(6) of the Regulations of 2015 come into play. The said
provision reads as under:-
"8. Process of conducting Inquiry-
(6) If the Executive Authority of the HEI decides
not to act as per the recommendations of the
ICC, then it shall record written reasons for
the same to be conveyed to ICC and both the
parties to the proceedings. If on the other
hand it is decided to act as per the
recommendations of the ICC, then a show
cause notice, answerable within ten days,
shall be served on the party against whom
action is decided to be taken. The Executive
Authority of the HEI shall proceed only after
considering the reply or hearing the aggrieved
person." (emphasis supplied)
14] From the aforesaid provision it is clear that when
the Executive Authority of the HEI decides to act as per the
recommendations of the ICC, a show cause notice is required
to be served on the party against whom action is proposed to
be taken. The show cause notice is required to be answered
within a period of ten days and thereafter on considering the
reply or hearing the aggrieved person, the Executive Authority
of the HEI has to take a decision.
The material on record does not indicate that a show
cause notice as contemplated by Clause 8(6) indicating that
the Vice Chancellor was proposing to take action on the basis
of recommendation of the ICC dated 20/05/2023 was issued
to 'X'. As a result, 'X' could not respond to the action proposed
to be taken against him on the basis of the recommendation of
the ICC. The requirement of issuance of a show cause notice
prior to acting on the recommendations of the ICC is with a
view to grant an opportunity to the party against whom action
is proposed to be taken to urge otherwise. This requirement
ordinarily cannot be dispensed with as the Executive Authority
is required to proceed only after considering the reply of such
party against whom action is proposed. In our view, Clause
8(6) is couched in a mandatory language and in compliance of
the principles of natural justice as the noticee is to be visited
with some penal action. The effect of the failure to issue such
show cause notice in the present case would be required to be
borne in mind.
15] To conclude the issue of procedural fairness, it is
held that 'X' not having questioned the correctness of the
recommendations of the ICC as recorded in its report dated
20/05/2023 despite availability of an opportunity to do so
before the Vice-Chancellor, the report of the ICC has to be
accepted as unchallenged and it forms the basis of action
against 'X'.
However, the procedure prescribed by Clause 8(6) of the
Regulations of 2015 prior to taking action against 'X' on the
basis of the report of the ICC not having been followed, it is
clear that the penalty of expulsion has been imposed without
grant of an opportunity to 'X' to show cause as required
therein. There has been a procedural infraction in that regard.
PROPORTIONALITY
16] Clause 10(2) of the Regulations of 2015 prescribes
punishment that can be imposed on a student depending
upon the severity of the offence. Clause 10(2) reads as under:-
"10. Punishment and compensation-
(2) Where the respondent is a student,
depending upon the severity of the
offence, the HEI may :-
(a) withhold privileges of the student
such as access to the library,
auditoria, halls of residence,
transportation, scholarships,
allowances, and identity card;
(b) suspend or restrict entry into the
campus for a specific period.
(c) expel and strike off name from
the rolls of the institution,
including denials of readmission,
if the offence so warrants;
(d) award reformative punishments
like mandatory counselling and,
or, performance of community
services."
The punishment as stipulated by Clause 10(2)(c) of
the Regulations of 2015 has been imposed on 'X' by the
impugned order dated 21/06/2024. Since it is urged on behalf
of 'X' that the punishment of expulsion from the University
Rolls is disproportionate in the facts of the case, the said
aspect requires consideration. Whether this punishment is
proportionate or not is the issue.
17] On the aspect of proportionality vis-a-vis the
punishment imposed, certain aspects will have to be borne in
mind. It is well settled that the writ court is principally
concerned with the decision making process rather than the
decision itself which legal position does not require any
elaboration. If the decision making process is found to be fair
and the decision taken is otherwise in accordance with law,
there would be no reason to interfere with such decision under
Article 226 of the Constitution of India. It is also well settled
that the question as regards the choice and quantum of
punishment is within the jurisdiction and discretion of the
authority empowered to inflict such punishment. It is only if
punishment is found to be disproportionate to the act in
question so as to shock one's judicial conscience that the
doctrine of proportionality can be invoked undertaking judicial
review as held by the Supreme Court in Ranjit Thakur vs.
Union of India, 1987 INC 285.
18] The punishment of expulsion by striking off the
name of a student from the rolls of the Institution has the
effect of such student thereafter not being able to pursue
further studies and complete the course for which admission
was taken in the Institution. This punishment may require
such student to either join some other Institution to complete
the remainder course, if the same is permissible under the
relevant Regulations of the HEI or seek re-admission if
permissible. It is to be noted that under Clause 10(2)(c), the
punishment of expulsion includes denial of re-admission if the
offence so warrants. The Regulations of 2015 framed by the
UGC thus contemplate that in a given case, if the punishment
of expulsion with denial of re-admission is imposed by
Institution 'A', it would require such student to seek admission
in Institution 'B' under the same University so as to complete
his education. Where however such arrangement is not
possible, the expelled student would be unable to complete the
remainder course after his expulsion.
In the present case, 'X' has been expelled and his
name has been struck off from the Rolls of the Institution. The
HEI in the present case is the MNLU, Mumbai and under its
Regulations, completion of the remainder course as a result of
expulsion would not be permissible in any other HEI. In other
words, even in the absence of denial of re-admission after
expulsion, the effect of such punishment would be that the
course undertaken by 'X' prior to imposition of the
punishment of expulsion would not be possible to be
completed in any other Institution. In any event, such other
Institution would always be reluctant to admit an expelled
student. Thus, in effect the punishment of expulsion is a
severe punishment that can have a permanent effect if such
expelled student is unable to complete his/her remainder
course post expulsion.
19] It is to be borne in mind that initially on
17/06/2023, the penalty of expulsion from the University was
imposed on 'X'. In appeal however the Vice-Chancellor
permitted 'X' to appear at the end-semester examination after
completion of the academic session as a matter of grace. 'X'
has accordingly appeared for the 9 th and 10th semester
examinations. His results however have not been declared in
view of the penalty now imposed. Thus, the situation in hand
is that after the penalty of expulsion was imposed, 'X'
completed the academic course in B.A. LLB. (Honours) at the
MNLU, albeit his result not being declared for the last two
semesters. This factual aspect will have to be weighed while
considering the challenge to the order of expulsion based on
proportionality.
20] We may first advert to the decisions relied upon by
the learned Senior Advocates for 'X' and 'Y' in that regard. In
Vuribindi Mokshith Reddy (supra), the petitioners were
students pursuing their education at the Birla Institute of
Technology and Science. On the allegation that they were
involved in the theft of potato chips, chocolates, sanitisers,
pens, notepads, mobile phone stands, two desk lamps and
three bluetooth speakers from the stalls on the college
campus, they were debarred from registration during
Semester-I and two further semesters. The Appellate Authority
maintained the cancellation of registration of Semester-I along
with fine of Rs. 50,000/-. A challenge was raised to the order
of punishment. A Co-ordinate bench of this Court deferred the
consideration of the writ petitions to enable the Director to re-
consider the punishment of cancellation of the Semester or
substitution of that penalty with a direction to undertake
community service. The Director however indicated that no
mercy could be shown to the said petitioners. In that
backdrop, the co-ordinate bench considered the aspect of
imposition of reformative penalty. It referred to the judgment of
the Allahabad High Court in Anant Narayan Mishra Vs. Union
of India and Others, 2019 AHC 201145 wherein it was
observed that termination of dialogue with the delinquent
student without offering any opportunity to reform makes him
an outcaste and loss of human self-worth is total. An act of
suspension or debarment of a delinquent student would result
in the University abandoning its ward. It was found that while
imposing penalty, the University had ignored its own
guidelines that were prevailing. It was also found that the
directives issued by the UGC on the aspect of reformation had
been ignored. Taking an overall view of the matter, the co-
ordinate bench proceeded to set aside the penalty of
debarment while maintaining the imposition of fine of Rs.
50,000/- with a further direction to undertake community
service for two hours every day for a period of two months.
21] The Karnataka High Court in T. T. Chakravarthy
Yuvaraj and others (supra) considered the challenge raised to
an order of expulsion taken by the Principal of the college
where the said petitioners were taking education. It was found
that the enquiry held against the petitioners had been fair and
that the said petitioners had opportunity to participate in the
same. The Court however was of the view that the doctrine of
proportionality as regards the punishment imposed required
consideration. It observed that if the decision of an authority
as regards the punishment imposed defied logic then the
sentence would not be immune from correction. A balance
between the interest of the educational institution and the
delinquent student was required to be maintained. It observed
that though the acts of the students were not condonable or
excusable, the Court could not be oblivious to the reality of the
matter so as to impose the highest punishment of expulsion.
Such order of expulsion would render the students unfit for
any other career as no other college would be willing to grant
them admission to enable them to complete their studies
which could lead to frustration and disappointment. To
permanently put an end to their career would not be an
appropriate punishment. In that view of the matter, the High
Court held that the punishment of expulsion from the college
for a period of three years from the date of the order made by
the Principal would be an appropriate punishment.
22] On the scope of judicial review, the learned Senior
Advocate for 'Y' relied upon the decision in Lieutenant General
Manomoy Ganguly, VSM (supra). The Supreme Court held
therein that in exercise of judicial review, the Court is not
concerned with correctness of the findings of fact on the basis
of which an order is made as long as such findings are
reasonable and supported by evidence. The Court would not
substitute its judgment for that of the legislature or executive
or its agents. The decision making process was required to be
examined.
23] In the case of Prince Raj (supra), the Madhya
Pradesh High Court considered the challenge to an order of
penalty suspending the said petitioner for one academic year.
It was found that on the basis of recommendation made by the
Student Advisory Senate, the disciplinary measure had been
taken against the petitioners. On the ground that the
paramount consideration for an institute is to maintain
discipline, the High Court refused to interfere in exercise of
writ jurisdiction.
The House of Lords in Chief Constable of the North
Wales Police (supra), has cautioned against the substitution of
its opinion by the judiciary or by individual judges for that of
the authority constituted by law to decide matters which it has
jurisdiction to do so. Judicial review was concerned with the
decision making process rather than the decision itself. This
proposition of law admits of no doubt and has to be borne in
mind while assessing the case in hand.
24] It would be apposite at this stage to refer to a few
decisions indicating the approach of various Courts in the
context of disciplinary action concerning students. Reference
can be made first to the decision of the Delhi High Court in
Siddharth Jain vs. Shaheed Sukhdev College of Business in WP
(C) No.9862 of 2015 dated 17 November 2014. The petitioner,
a student, was debarred by the Principal of the College for a
period of one year on account of his indecent behaviour. While
maintaining the finding recorded by the Disciplinary
Committee as regards the guilt of the petitioner, the learned
Single Judge considered the aspect of proportionality vis-a-vis
the punishment of debarment for a period of one year. While
applying the doctrine of proportionality, the Court highlighted
the difference between a young offender and an adult offender.
In that regard, we may refer to the observations in paragraphs
16.2 to 18 and paragraphs 19.2 to 21 which read as under :-
"16.2 There is no gainsaying that concerns of both the
institution and the victim have to be considered
while dealing with a delinquent / offender even
in an educational institution.
17. There is, however, an another aspect, if I may
say so, which requires consideration as well,
without undermining the relevance or the
importance of the aspects which are noticed
hereinabove, by me. This aspect requires that
while dealing with a young offender an attempt
should be made to ascertain whether the
sentencing disposition could be tailored, as long
as it is consistent with other sentencing
principles, so as to promote reformation and
lead to rehabilitation of the offender.
17.1 This, if I may say so, is a facet of the doctrine of
proportionality which, our courts, have often
used in dealing with disciplinary matters falling
in the realm of service jurisprudence (See
Ranjeet Thakur Vs. Union of India, (1987) 4 SCC
611).
17.2 In applying the aforestated principle, what is
not to be forgotten, is that, while sentencing,
the educational institutions have to consider
that any punishment imposed by them which
leads to an outright denial of the right of a
delinquent young offender to education, is
required to be based on a compelling State /
public interest. [See Cathe A., Guardian of
C.E.A. Vs. Doddridge County Board of Education,
Supreme Court of Appeals of West Virginia,
September 1996 Term No.23350].
17.3 The compelling State / public interest element
would necessarily include as well the immediate
interest of other students who are admitted to
the institutions, in which the offence may have
been committed. Therefore, as I said at the
beginning of my discussion, the gravity of the
offence and the age of the offender will have to
be borne in mind. The exclusion of a young
offender from the normal educational stream for
a period of time brings about "unpleasant
consequences" and "harm", which, in any case,
amongst others, is the purpose of any
punishment.
18. The sentencing authority therefore should ask
of itself, in the context of offence committed :
the degree of harm or unpleasantness that a
punishment should visit upon an offender.
19.2 To my mind, even if one were to accept the
argument that the apology was an act of self-
preservation, I would in the case of a young
adult offender, still allow him a chance to
reform himself as the difference between an
adult offender and a young adult offender, is
that, the latter does not fully comprehend the
consequences of his misdemeanour when
he/she embarks upon it. There is scientific and
medical literature which distinguishes between
physical, mental, social and emotional maturity
of a young offender [See : Salil Bali Vs. Union of
India and Anr., (2013) 7 SCC 705, para 58 at
page 722-723; and Subramanian Swamy and
Ors. Vs. Raju, (2014) 8 SCC 390, para 37 at page
408]. Having said so, one would also have to
balance the concerns of the institution which
includes its need to protect other students and
its reputation as a place where education is
imparted to students of every gender, without
feat of physical, mental or psychological injury.
20. Before I conclude and get to the operation
directions, I must indicate that the judgment of
the Supreme Court in the case of Deputy
Inspector General of Police and Anr. Vs. S.
Samuthiram, in my view, would not apply to the
facts of the instant case as it dealt with an
offence committed by an adult person, albeit
qua a married lady. In the present case, as
indicated above, the petitioner is a young adult
and would, therefore have to be dealt with
differently. The said judgment, to my mind, is
distinguishable.
21. Therefore, having regard to the totality of
circumstances, I am of the view that the
punishment imposed by the Principal vide the
impugned order should be suspended for the
remaining tenure of the petitioner in the college
upon the petitioner executing an undertaking of
good behaviour with the following conditions."
The Division Bench of the Delhi High Court refused to
interfere with the said judgment in appeal.
In our view, this decision highlights the need to balance
the concerns of the educational institution on one hand and
those of a young offender so that he is not totally excluded
from the normal stream of education.
25] In Anant Narayan Mishra (supra), a First Information
Report was registered against the petitioner under the
provisions of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 as a result of which he was
suspended by the University from all its privileges and
activities. While considering the aspect of proportionality and
punishment to be imposed on a student, a learned Single
Judge of the Allahabad High Court observed as under :-
"M. Proportionality & Punishment
217. The controversy has to be seen from another
critical legal perspective. The doctrine of
proportionality is an established ground of
judicial review in the Indian Constitutional
jurisprudence.
218. Aharon Barak, former President of Supreme
Court of Israel in his book "Proportionality"
thus defines the rules of the doctrine of
proportionality, "According to the four
components of proportionality a limitation of
constitutional right will be permissible if, (1)
It is designated for a proper purpose, (2) The
measures undertaken to effectuate such a
limitation are rationally connected to the
fulfillment of that purpose, (3) The measures
undertaken are necessary and in that there
are alternative measures that my similarly
achieve that same purpose with a lesser
degree of limitation and finally; (4) Their
needs to be a proper relation
"proportionality strict senso and balance"
between the importance of achieving the
proper purpose and social importance of
preventing the limitation on the
constitutional right."
219. The concept of proportionality essentially
visualizes, a graduated response to the
nature of the misconduct by a delinquent
student. The purpose of the institution, its
role in the society and its obligations to the
nation, provide the setting for adjudication
of the issue of proportionality.
220. Proportionality first came to be applied in
the context of punishments imposed for
misconduct in service jurisprudence. The
necessity of proportional punishment, in
cases of misconduct by students is more
strongly needed. Hence, action of the
respondent-University is liable to be tested
on the anvil of disproportionality.
221. The "doctrine of proportionality" was
introduced and embedded in the
administrative law of our country by the
Hon'ble Supreme Court in the case of Ranjit
Thakur Vs. Union of India, (1987) 4 SCC 611.
The Hon'ble Supreme Court in Ranjit Thakur
(supra) held thus :
"Judicial review generally speaking is
not directed against a decision, but is
directed against the "decision making
process". The question of the choice
and quantum of punishment is within
the jurisdiction and discretion of the
Court-Martial. But the sentence has to
suit the offence and the offender. It
should not be vindictive or unduly
harsh. It should not be so
disproportionate to the offence as to
shock the conscience and amount in
itself to conclusive evidence of bias.
The doctrine of proportionality as part
of the concept of judicial review would
ensure that even on an aspect which is
otherwise within the exclusive province
of the Court-Martial, if the decision of
the Court even as to sentence is an
outrageous defiance of logic, then the
sentence would not be immune from
correction. Irrationality and perversity
are recognised grounds of judicial
review."
222. The essence of proportionality is that the
competent authority while imposing a
punishment upon a delinquent student has
to co-relate and balance the imperatives of
institutional discipline with the demands of
individual rights. Too light a punishment
will not be conducive to institutional
discipline. Too harsh a punishment will not
be consistent with norms of justice.
223. The enquiry into the four components of
proportionality, as elucidated by Justice
Aharon Barak in his book "Proportionality"
has been made in the preceding part of the
judgment. The purpose and obligations of
Universities have also received consideration
in the earlier part of the narrative.
224. The suspension of the petitioner from the
University for an undefined or indefinite
period is an action of extreme severity. It is
a de-factor expulsion from the University.
These actions carry drastic penal
consequences for the students. Denial of
education to a soul in quest of knowledge is
the severest form of restriction. Moreover,
the instigatory role of the Professor Y in
causing the incident has not been factored
into the decision.
225. The measures undertaken against the
petitioner are not rationally connected to the
fulfillment of the purpose sought to be
achieved. The proper and designated
purpose of a punishment in a University has
to include reform of the student not more
imposition of penalty. Clearly there are
alternative reformative measures that can
achieve the same purpose with a lesser
degree of curtailment of the students rights.
226. The impugned action fails the test of
proportionality. The action taken against the
petitioner does not achieve the purpose and
social importance of the reform and
rehabilitation of the delinquent student. The
impugned order is liable to be set aside on
this ground as well."
26] Yet again in Prabhat Kumar Singh vs. Army College of
Medical Science and Others (LPA No. 66 of 2017 decided on
02/07/2018) the Delhi High Court had an occasion to
consider the aspect of proportionality in the context of
punishment of expulsion of a student. In that regard it
observed in paragraphs 50 to 52 as under :-
"50. Having found that the penalty imposed on the
Appellant is unduly harsh and shockingly
disproportionate, the question would now be
whether we should remit the matter back to the
Respondents for modification of penalty or this
Court should itself modify the penalty. In our
considered view, at this stage when the Appellant
has already lost six academic years, interest of
justice demands that, instead of remanding the
matter back to either the Respondent
No.1/College or the Vice-Chancellor of the
Respondent No.5/University, we should modify
the penalty of permanent expulsion to that of
rustication for the period already undergone. A
similar course of action was taken by this Court
in the case of Air Force Bal Bharti School and Anr.
v. Delhi School Tribunal and Ors. [LPA No.
48/2005], wherein it was held as under :-
"7. This Court is now called upon to exercise
second review, as it were, of the
disciplinary order made by the school...
The counsel's emphasis that without a
finding that the penalty in a given case
is "shockingly" disproportionate, the
Court cannot substitute it, exercising
the jurisdiction of the decision-maker,
does not persuade this Court. It is the
disproportionality of the punishment,
by whatever name called, i.e.
"shocking", "serious" or "gross" having
regard to the totality of the proven
facts, which is to be seen in every case.
A case might reveal facts where the
penalty is shockingly disproportionate,
and the Court may substitute it without
saying that the penalty is shockingly
disproportionate. Conversely, in
another instance, the penalty might not
be disproportionate at all, despite which
the Court might say it is. Ultimately, it
is a matter of substance, and not
semantic form, that the Court has to
look into..."
51. However, even though we are inclined to modify
the penalty and permit the Appellant to pursue
his MBBS degree, the same in our considered
opinion, has to be made subject to some
conditions, which we have arrived at by
considering the views not only of the Respondent
No.5/University, but also of the MCI.
52. Resultantly, the impugned order passed by the
learned Single Judge is set aside. The order of
penalty of permanent expulsion imposed on the
Appellant is also set aside and is modified to his
rustication from the Respondent No.1/College till
31.5.2018, whereafter he would be re-inducted in
the final semester of his MBBS course in
Respondent No.1/College itself. However, the
same would be subject to the following
conditions :-
(Rest of the paragraph is not material for our
purpose)."
27] The aforesaid decisions seek to strike a balance by
applying the doctrine of proportionality in the context of
punishment imposed on students. While ensuring that the
discipline at the concerned institution is maintained, care has
been taken to see that the student is not entirely deprived of
academic opportunities by taking a holistic view of the matter.
28] In the case in hand, we find from the material on
record that (a) 'X' had suffered a penalty of expulsion from the
hostel on 03/06/2022. (b) As a result of the report of the ICC
dated 20/05/2023, 'X' has now been expelled from the
Institution. (c) The punishment of expulsion however has been
imposed on 'X' without complying with the mandate of Clause
8(6) of the Regulations of 2015. (d) In the meanwhile, 'X'
appeared for the ninth and tenth semester examinations of the
BA.LLB (Honours) Course and his results are dependent on
the present proceedings. (e) 'Y' is presently pursuing her
studies at the MNLU.
In this factual backdrop, the options available are
either to ensure procedural compliance by setting aside the
penalty of expulsion and thereafter remanding the proceedings
before the Vice-Chancellor to enable him to comply with the
requirement of Clause 8(6) of the Regulations of 2015 or to
consider the aspect of proportionality while maintaining the
imposition of penalty of expulsion in the peculiar facts of the
case.
29] As regards the option of remand, the same would
require the Vice Chancellor to re-consider the matter that
could thereafter result in a third round of litigation which in
our view would not be in the academic interest of either 'X' or
'Y'. It would only result in extending the agony, especially of
'Y', by requiring her to again undergo the ordeal of appearing
before the Vice-Chancellor as an "aggrieved person". This
would also undesiringly result in a distraction from her
academic activities. It is also likely that the matter would
again reach the Court at the behest of an aggrieved party. It
would rather be in the interest of 'Y' that her focus on
academic pursuits continues unhindered rather than re-
kindling bad memories.
As regards 'X', he having not chosen to question the
report of the ICC dated 20/05/2023 which forms the basis for
the infliction of penalty, its report does not deserve to be
interfered with. In his appeal statement, 'X' had indicated that
he did not desire to pursue the matter any further.
Taking an overall view of the matter in the light of
the fact that both 'X' and 'Y' being students are not subjected
to any further distractions from their academic activities and
this being the second round of litigation, we do not deem it
appropriate to again engage 'Y' and 'X', in that order, to
another round of litigation. It would be in the larger interest of
both that the entire matter is given a quietus so that they can
focus on positive aspects of their careers. In that view of the
matter, we have undertaken to consider the appropriate course
that could be followed, which in our view would meet the ends
of justice, viewed from the perspective of 'Y' and 'X'.
30] We thus proceed on the premise that the
punishment of expulsion of 'X' as imposed by the Vice-
Chancellor was justified in the light of the material available
and especially the report of the ICC dated 20/05/2023. The
punishment of expulsion therefore does not call for any
interference. Having said that, in our view, an order of
expulsion for an indefinite and unspecified period would be
harsh resulting in 'academic death' of 'X'. It would result in
taking away the education and training undergone since his
admission to the course in 2019-20. In effect, he would never
be able to complete the BA.LLB (Honours) course at the MNLU
in future. The consequence of such expulsion would operate
perpetually having a drastic effect on a student's academic life.
All this would also result in deprivation and denial of
education. In our view, the consequences flowing from an
order of expulsion for an indefinite and unspecified period are
drastic and harsh.
We may take a cue from the decision in M/s. Kulja
Industries Limited vs. Chief Gen. Manager W.T. Proj. BSNL &
Others, 2013 INSC 673 that blacklisting of an entity for an
indefinite period would be harsh and could result in economic
death. Similarly, in O.P. Gupta vs. Union of India and others,
1987 INSC 238 suspension of an employee for a long period of
over eleven years was found to be harsh. Thus a penalty
resulting in deprivation of certain privileges for an indefinite
period has normally been found to be harsh and therefore
disproportionate. Courts have interfered in cases raising
challenge to orders imposing penalty for an indefinite period.
On a penalty being found to be harsh, the aspect of
proportionality would arise for consideration.
31] Thus, while maintaining the punishment of
expulsion, the duration for which it ought to operate in the
present case requires consideration. Having found that the
expulsion of 'X' for an undefined period would be harsh, in
ordinary course the matter ought to be remitted to the
disciplinary authority to specify the period of expulsion. But as
stated above, we do not intend to remand the proceedings and
prolong the present litigation. By virtue of the earlier order
dated 30/08/2023, the Vice-Chancellor permitted 'X' to
appear for the ninth and tenth semester examinations. His
results however have not been declared being dependent upon
the outcome of the present proceedings. In normal course, 'X'
would have completed his BA.LLB (Honours) course at the end
of academic session 2023-24. That has not happened as his
results for the last two semesters have not been declared.
In our view, restricting the punishment of expulsion
for one academic year coupled with a further direction to
undertake community services as prescribed by Clause 10(2)
(d) of the Regulations of 2015 would meet the ends of justice.
'X' can be directed to undertake community services as
deemed fit by the Vice Chancellor till the end of academic year
2024-25 after which his results for the ninth and tenth
semester can be declared. This would result in 'X' suffering
the punishment of expulsion for one academic year and also
undertaking community services till the end of the current
academic year. Loss of an academic year in these facts would,
in our view, be proportionate to the misconduct of 'X'. It would
put him behind his entire batch of 2019-24 by one year and
during that period he would be unable to take up any other
academic activity. This approach may not be construed as an
outcome of an exercise in equity but an exercise of applying
the doctrine of proportionality considering the indefinite period
of expulsion. Hence, the ratio of the decision in Priyanka
Omprakash Panwar (supra) is not attracted to the facts of the
present case. With this order, we hope that the entire unsavory
episode is put to rest.
32] We accordingly pass the following order :-
(a) The action of expulsion as directed by the
Vice Chancellor based on the
recommendation of the ICC dated
20/05/2023 is upheld.
(b) On the principle of proportionality, it is
directed that the order of expulsion shall
operate till the end of academic year
2024-25. In addition, 'X' shall render
community service under the guidance of
the Vice-Chancellor till the end of academic
year 2024-25. After the completion of such
community service, the results of 'X' for the
ninth and tenth semester shall be declared
along with the results of regular students
at the end of academic year 2024-25.
(c) 'X' shall not interact in any manner with 'Y'
while rendering community service.
(d) The Vice Chancellor is requested to consider
the recommendations made by the ICC in
its report dated 20/05/2023 in the matter
of selection of a venue for such activities of
the MNLU as well as undertaking due
diligence that no alcohol is served at
dinners held on such occasions and take
remedial steps in the larger interest of the
MNLU, its staff as well as its students.
33] Rule is disposed of in aforesaid terms with no order
as to costs.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
