Sh. Vaibhav Singh Chauhan vs Director (Studies), National ...
2006 Latest Caselaw 1909 Del

JUDGMENT

Anil Kumar, J.

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Rule

1. With the consent of learned Counsel for the parties the writ petition is taken up for final disposal. The learned Counsel for the parties contended that no other additional affidavits had to be filed on behalf of the parties.

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2. The petitioner has sought setting aside the letter of disqualification dated 7.7.2005 issued by respondent No.1 and letter dated 2.8.2005 issued by respondent No. 3 and for issuance of directions to the respondents to permit the petitioner to appear in the examination to be held in 2006 in the paper i.e. Front Office in which he was disqualified and to declare the marks obtained by the petitioner in other papers in which the petitioner appeared in the year 2004-2005 except for the paper in which he was disqualified. The petitioner has also sought striking down rules 9.2, 9.17 and 17.1 of the Examination Rules, 2001 as arbitrary and unconstitutional.

3. Brief facts to appreciate the controversies are that respondent No.1 is the National Council of Hotel Management and Catering Technology which is a society registered under the Ministry of Tourism and Culture, Government of India. The council regulates academics for hospitality management through structured course of studies that are imparted at the Institutes of Hotel Management.

4. The Council along with Indira Gandhi National Open University, respondent No.2, offers and conducts three years Bachelor of Science programme in Hospitality and Hotel Administration.

5. The National Council for Hotel Management conducts an annual entrance examination on the basis of which the admissions are granted. The petitioner had appeared for the entrance examination for the course of Bachelor of Science in Hospitality and Hotel Administration in the year 2002 and after qualifying the same he was offered admission at Dr. Ambedkar Institute of Hotel Management, Chandigarh. The petitioner was enrolled in the academic year 2002-2003.

6. After joining the Bachelor of Science in Hospitality and Hotel administration petitioner cleared all his subjects for the first year with an aggregate percentage of 62% at the end of the year 2002-2003 and all the subjects in second year with an aggregate of 60.9% at the end of the year 2003-2004.

7. The petitioner appeared in the final examination in the academic year 2004-2005 and in one of the paper i.e. Front Office management which was on 19.4.2005 a slip was found in his possession which had materials relevant to the examination. On finding a slip of paper with the petitioner, his answer book was taken and he was issued a fresh answer sheet but due to paucity of time he could not finish the entire paper. The petitioner, however, appeared in all remaining other examinations and practicals.

8. On account of recovery of a paper slip containing material relevant for the examination the petitioner was charged with malpractice in the examination and he was served with a show cause notice dated 2.6.2005. Pursuant to the show cause notice the petitioner was advised to present himself in person in the office of the National Council for Hotel Management and Catering Technology before the Examination Committee on Thursday, 23.6.2005 at 9.30 hrs.

9. The petitioner appeared pursuant to the show cause notice before the Examination Committee and contended that he had written down some difficult formulae on the slip of paper to memorize just before the examination but in anxiety he inadvertently carried the slip of paper into the examination Page 3402 hall. He contended that he never intended to use the said slip of paper and in fact he never used the said paper for answering the questions in the examination.

10. The invigilator in the examination on finding the slip of paper in possession of petitioner having Roll No.020633 intimated the Principal, respondent No.3, about the recovery of paper slip containing objectionable material pertaining to front office management. He also communicated that some letters were written on the question paper also.

11. Before the examination committee, the questions were put to the petitioner and the questions and answers given were recorded. Before the examination committee petitioner admitted that the handwritten paper is in his handwriting. On being asked why he refused to sign the incriminating material recovered from him and what he had to say, the petitioner showed remorse and stated before the examination committee that this will not happen again and he sought their pardon. He confessed using unfair means during the examination. The question put to him and his answer is as follows.

10. It is not a fact that you confess to the use of unfair means during the course of examination?

Yes

On being shown the report of the central superintendent and other members of supervisory staff and all other evidence against him the candidate again showed extreme remorse by saying that he is extremely sorry and he feels guilty for his misconduct. The candidate tendered apology deeply and truly and promised that such things wouldn't be repeated ever again and therefore he sought indulgence of the examination committee to treat his case favorably.

12. Examination Rule 8 deals with case of misconduct and use of unfair means. The malpractices in the examination has been defined under said rule which is as under:

8. ACTS OF MISCONDUCT & USE OF UNFAIR MEANS

8.1 The Superintended of Examination shall report to the Controller of Examination without delay and on the day of the occurrence of each case where use of unfair means in Examination is suspected or detected with full details of evidence of actually what is noticed from the concerned person either the invigilators, examiners in practical examination or from any other source together with an explanation in writing from candidate concerned. The report should indicate how, when and by whom the unfair means case was detected and what was actually noticed.

Following shall be taken as Malpractice in the examination

1. Candidate who is found in possession of any note-book(s) or notes or chits or any other unauthorised material concerning the subject pertaining to the examination paper.

2. Anything written on any part of clothing, body, desk, table or any instrument such as setsquare, protractor, blotting paper and question paper etc.

3. Talking to another candidate in the examination hall or change of seat without the permission of Examination Superintendent.

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4. Consulting notes, books or any other material or outside person while going to toilet etc outside the Examination Hall.

5. Running away or swallowing or destroying any note or paper or material found with him/her.

6. Impersonation.

7. If the answer-books show that a candidate has received or given help to any other candidate through copying.

8. Using obscene or abusive language in the answer book.

9. Deliberately disclosing one's identity or making any distinctive mark in the answer book for that purpose.

The candidate found guilty of having adopted anyone or more of the above malpractice is liable to be penalised with a penalty by the National Council, which may vary from cancellation of the examination/expulsion up to maximum period of three years following the malpractice under issue.

13. Examination rules 8.2 and 8.3 deal with the procedure in case the candidate is found to be suspected or guilty of using unfair means which are as under:

8.2:- In case the candidate refuses to give a written statement, the fact of his refusal shall be recorded by the Superintendent and witnessed by at least two members of the Supervisory staff present at the time of interrogation of the candidate by the Superintendent.

8.3:- A candidate found to be or suspected to be guilty of using unfair means in the examination shall be permitted to answer the remaining part of his question paper but on a separate answer book and the answer book in which the unfair means is suspected to have been committed shall be taken in possession by the Superintendent who shall send both the answer books, marked I & II in the order in which these were used by the candidate to the Controller of Examinations with his/her detailed report and findings in a separate sealed cover. The candidate shall however be permitted to appear in the remaining examination(s) in subsequent paper(s).

14. The penalty for use of unfair means is also provided under the examination rules of National Council for Hotel Management and Catering technology. Relevant rules for the purpose of the present case are 9.1, 9.2 & 9.17 which are as under:

9.1:- In case a candidate is found by the Superintendent of Examinations of having in his/her possession or accessible to him/her papers, books or notes or material which do not relate to the subject of the examination, no action be taken against the candidate. Such a case need not be reported to the Controller of Examinations and may be filed by the Superintendent of Examination after a warning to the candidate not to repeat such action.

9.2:- A candidate found exchanging answer book or question paper with solution or copying or having in his/her possession or accessible to him/her papers, books or notes or material relating to the subject of the question paper shall be disqualified for a minimum period of one academic session following the examination in question and is liable to the disqualified for a maximum period of three years following the examination in which he/she (deliberately) adopted unfair means. The Page 3404 candidate found to have thus indulged in unfair means shall be deemed to have failed in all subjects. After expiry of the period of disqualification such candidate shall have to reappear in the entire examination.

9.17:- According to the above rules, disqualification for one academic session or year shall mean that the candidate has failed in all subjects of the examination in which he/she has indulged/adopted unfair means and shall not be allowed to appear in the next annual examination. For example a candidate disqualified for one year for having used unfair means in the Annual Examination 2002 shall be declared fail and will not be allowed to appear in the Annual Examination 2003, and will be permitted to appear in the annual examination 2004 and onward if otherwise eligible under the rules.

15. After giving due opportunity and hearing to the petitioner, the examination committee of the respondents awarded punishment which was communicated by communication dated 2.8.2005 of respondent no. 3 which is as under:

Subject: Malpractice Annual Examination 2005

This is to inform you that during the course of Annual Examination-2005, your ward indulged in malpractice violating the examination rules.

As such, he has been disqualified for a period of one Academic Session following the examination in question. He will now be permitted to take examination for 2006-07 academic year in the same class and will appear for annual examination in 2007 (Letter No. ST.4(14)/EXAM./05-NC/3385 dated 07.07.2005 from National Council, New Delhi, (photocopy enclosed) which is self explanatory.

(Navin Kumar Nanchahal)

Principal

16. Aggrieved by the order canceling his examination and disqualifying him for a period of one academic session following the examination in question, petitioner filed the present writ petition contending inter-alia that the interpretation of Rule 9.2, 9.17 & 17.1 is arbitrary and unconstitutional because although he has been disqualified for one year but in fact he would be losing two years because of punishment which has been awarded, though the minimum punishment is one year and maximum punishment is three years. Rule 9.17 has also been challenged being unconstitutional because it disqualifies a candidate found committing malpractice not only in the paper in which use of unfair means is used but in all the papers. The plea of the petitioner is that canceling the examination of other subjects in which he had not used any unfair means was too excessive and disproportionate to the offence committed, specially since the petitioner had written down some of the formulas for the purpose of memorizing just before the examination and did not use the same during the examination. He could not be awarded double punishment for a single misconduct, especially since petitioner showed his remorse and admitted his guilt.

17. The writ petition is contested by the respondents. A counter affidavit of Shri N.S.Bhuie, Director of Studies, of respondent no.1 was filed contending inter-alia that petitioner himself had admitted possession of paper/slip containing material relevant for the concerned examination front office Page 3405 management-III and he had also admitted that the writings on the slip/paper which was in his possession were relevant to the subject matter of the examination and in the circumstances the petitioner has committed malpractice in examination as contemplated under the examination by-laws of National Council for Hotel Management and Catering Technology. The respondents contended that the national council for hotel management has under its control 24 institutes of hotel management in the country with common examination system and the basic purpose for the examination rules is to award such punishment which will deter the candidates to use unfair means or indulge in malpractice in examinations. According to the respondents personal hearing was given to the petitioner on 23.6.2005 by the principal of institutes of hotel management of Mumbai, Bangalore, Gurdaspur, Chandigarh and the Director (Studies) and the case of the petitioner and other candidates were considered. The defense shown by the petitioner was examined and thereafter the punishment as detailed hereinabove was awarded to him. According to the respondent no.1 the disciplinary action taken by the respondents must be maintained, as the academic institutions have to maintain their own standards and in the present facts and circumstances, it is not open to judicial review as there is neither illegality nor irregularity nor it suffers from Wednesbury unreasonableness.

18. I have heard the learned Counsels for the parties at length. Mr.Lalit Bhasin on behalf of petitioner emphatically contended that since it has not been established that the petitioner used the slip in the examination, mere recovery of the same will not make it a case of unfair means. He also challenged the proportionality of punishment awarded to the petitioner which is self contradictory according to Rule 9.2. According to examination rule 9.2 a candidate can be disqualified for a minimum period of one academic session following the examination in question and is liable to be disqualified for a maximum period of three years. According to him the petitioner was found in possession of incriminating material but there is no report of the invigilator that he had used the incriminating material nor the respondents have taken a stand that the incriminating material on the slip was used by the petitioner in the examination and, therefore, the punishment for disqualification for a minimum period of one academic session following the examination in question was awarded to him. The result of the petitioner was not declared for 2004-2005 and, thereafter he was disqualified for one year. According to the learned senior counsel after disqualification for one academic session following the examination, the petitioner became entitled to appear in the examination in 2006-2007, however, he was not allowed to appear and the petitioner could appear in the examination only pursuant to the interim order passed by this Court on 31.3.2006. While allowing the petitioner to appear in the examination it was held as under:

Before any punishment is inflicted on a person, even in circumstances where he admits to the possession of a slip of paper containing information that is relevant to or pertains to the Examination, the Authority should carefully exercise its mind as to whether circumstances call for a particular punishment. It has been contended by learned Counsel for the Petitioner that where students are involved, the commission of a fault should be viewed with some flexibility.

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However, if too much laxity is shown by the Authorities, especially in the case of cheating or using of unfair means in the Examination, it would inexorably lead to a decline in academic standards. Learned Counsel for the Respondents also states that in academic matters the Court should not exercise any discretion.

So far as the last submission is concerned there is a difference in jural interference in academic standards and Judicial Review of the discretion employed by Academic Authorities. In the first case, the Court would not normally be equipped with necessary wherewithal to rule on academic criteria and therefore should be loathe to exercise writ powers. So far as Judicial Review of the decision taken by Academic Authorities is concerned if the Court can interfere in Government/administrative decisions, there is no reason why it cannot do so in the context of academic decisions also. The decision to impose a penalty, in any case, be described as an academic decision. In both cases what is expected of the Court is to consider whether there was any arbitrariness in the action, or whether Rules of natural justice have been violated or ignored as the case may be, or the decision is unreasonable in the Wednesbury sense. It is within these parameters that the present case has to be considered.

It cannot possibly be contradicted that the impugned Order is of far-reaching consequences. In all such cases it is essential for the Authority concerned to give a complete and meaningful opportunity to the delinquent to be heard. It has already been noted that the Petitioner had confessed the possession of the chit almost spontaneously. It is totally left to speculation as to whether he was using the slip in the course of the Examination. A student placed in such a predicament would, with alacrity, submit his confession depending on what assurances had been held out to him by the Authorities. However, where discretion is available to the Authorities, to waive any punishment or impose light or heavy punishment, the Order should be a reasoned one. In the case in hand, all that is stated is that the Petitioner is disqualified for Academic Session as per Rule 9.2 of the Examination Rules of the National Council. The Petitioner was informed that he would have to take readmission in the same Class and will have to appear in the Annual Examination in 2007. Learned Counsel for the Respondents admits that while Representations had been received from the Petitioner he is not in a position to state whether they were disposed of or not.

The Court often encounters confessions or apologies that are calculated to get out of a delicate position. In the present case a confession/admission/apology has been spontaneous. One full Academic as well as Professional Year has been lost. It is not a case where by furnishing a confession the Petitioner claims complete exoneration. When the Respondents' Rules themselves contain the power to relax the imposition of a minimum period of punishment, this course ought to have been traversed and considered by the Respondents. If it had been so done, and plausible reasons had been given in the impugned decision, for declining to impose a punishment of two years [as it actually works out to be], this Court may have been loathe to interfere in the matter. Even Page 3407 on such a serious matter, the Respondents have not shown due concern and have not reduced to writing the reasons why a two year ban has been imposed. It is true that the Rules explain that a punishment of one year would be forfeiture of the Examination in which the Petitioner had appeared as well as the next following year. However, the Rules also, as has been seen above, repose discretion on the Authority for reduction.

An interim prayer has been made for permitting the Petitioner to appear in the Examination Front Office Examination in the course of which he was found in possession of some objectionable material. At this stage of the proceedings I am of the view that the Respondents have not applied the Rules in their letter and spirit and have not kept in mind the immediate acknowledgment/admission of the guilt of being in possession of objectionable material. It is certainly arguable that possession of objectionable material, per se, without a finding that material was intended to be used in the Examination, would not be punishable. If we care to think back to our student days, one would invariably recollect preparation of such kind of slips for refreshing the mind immediately before an Examination, with no further intent to use it as an unfair or illegitimate manner. These aspects of the case have been ignored.

In these circumstances the Respondents are directed to permit the Petitioner to appear in the forthcoming Front Office Examination. The appearance of the Petitioner in this Examination will not create any equities in his favor. The Results shall be kept in a sealed cover and shall be only declared on Orders of the Court. Leniency in matters, such as these, was shown by the Hon'ble Supreme Court in Swatantar Dixit v. Govind Ram by reducing the punishment to 2- months, which was the period of suspension already undergone.

19. Shri Lalit Bhasin, learned Counsel for the petitioner has relied on , Sarat Kumar Panigrahi v. Secretary, Board of Secondary Education, Orissa. In the said matter a piece of paper containing some Sanskrit scripts were found lying near the table of a candidate who was answering a paper in third language, Oriya, and the seized paper had no relevance to his answer papers, nevertheless, that slip could be helpful to other candidates and therefore the allegations of malpractices were made against the candidate and his writ petition was also dismissed by the High Court. The Apex court, however, set aside the order against the candidate on the ground that the seized paper was not related with the examination and secondly it was not used. The report which was alleged to had been prepared on the date of incident under the signatures of the Central Superintendent was on a pro-forma which was to be signed by the invigilator. In these circumstances, the punishment imposed on the candidate for using malpractices in the examination was set aside. The case of the petitioner is clearly distinguishable. The slip found with the petitioner was relevant for the examination in which the petitioner was appearing and he had written certain formulas on the slip Page 3408 for the purposes of remembering them and which slip somehow remained with the petitioner. The petitioner had also admitted that he had used unfair means during the hearing given to him in reply to a question put to him. The petitioner had shown his remorse and had contended that such a mistake will not be repeated by him in future. Apparently the case of the petitioner is different from the ratio of the case relied on by the learned Counsel for the petitioner. The petitioner has also relied on , V. Ramachander Goud v. Controller of Examination, Osmania University, Hyderabad and Anr. to impugn the order of punishment awarded to the candidate. In this matter an order for use of unfair means was passed against the candidates from whom written points connected with the subject on the writing pad were recovered. A single judge of Andhra Pradesh High Court had set aside the order on the ground that the answer scripts of the candidate should have been compared with the words written on the writing pad and consequently the order awarding punishment to the candidate was set aside. Apparently the case of the petitioner is clearly distinguishable and on the ratio of the said cases, the order awarding punishment to the petitioner cannot be set aside, as the act of the petitioner constitute use of unfair means which has been admitted by him also. In Central Board of Secondary Education v. Vineeta Mahajan it was held by the Supreme Court that the rule not making distinction between bone fide and mala fide possession of incriminating material by the candidate, the possession of the material itself will attract the rule. The Supreme Court in this case had held as under:

The sine qua non, for the misconduct under the Rule, is the recovery of the incriminating material from the possession of the candidate. Once the candidate is found to be in possession of papers relevant to the examination, the requirement of the Rule is satisfied and there is no escape from the conclusion that the candidate has used unfair means at the examination. The Rule does not make any distinction between bona fide or mala fide possession of the incriminating material. The High Court reasoning, that the candidate having not used the material in spite of the opportunity available to her the possession alone would not attract the provisions of the Rule, in our view, is not borne out from the plain language of the Rule. May be, because of strict vigilance in the examination hall the candidate was not in a position to take out the papers from the pencil box and use the same. The very fact that she took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the invigilator in the examination hall is sufficient to prove the charge of using unfair means by her in the examination under the Rule.

The rule of the Central Board of Secondary Education contemplates that having possession of papers, books, notes or any other material or information relevant to the examination in the paper concerned shall constitute use of unfair means. Rule 9.2 of the respondents which contemplates penalty for use of unfair means also stipulates possession or access to papers, books or notes or material relating to the subject of the question paper. This cannot Page 3409 be disputed that the slip which was found from the petitioner had formulas which are relevant for the examination during which the said slip was recovered from him. The petitioner himself had admitted that he had written the formula in order to memorize them, however, the slip inadvertently remained with him. Therefore, under the examination rules of National Council for hotel management and catering technology it cannot be inferred that the petitioner did not use unfair means on the ground that he did not use the material which was on the slip of paper for attempting or answering questions. In another matter, Guru Nanak Dev University and Anr. v. Harjinder Singh and Anr. the Apex Court had held that though the incriminating material was not recovered from the candidate, however, it was immaterial because the answers tallied with the answers found on the incriminating material which was also confirmed by subject expert on comparison. The definition of unfair means was held to be inclusive and not exhausted and it was held that so long as the University had communicated the charges to the candidate in clear terms and given him an opportunity to defend himself, it can not be held that he is not guilty simply because he is not covered specifically by any of the clauses of the Ordinance. A Full Bench of Allahabad High Court in Triambakpati Tripathi (supra) relying on , Board of High School and Intermediate Education v. Bagleshwar Prashad had observed that in the matter of adoption of unfair means, direct evidence may some time be not available and in such cases the question will have to be considered in the light of probabilities and circumstantial evidence, however, such an order which is passed by the expert bodies, the High court does not sit in appeal over the decisions and the jurisdiction is limited to see if the order in question is not supported by any evidence at all. In this case, petitioner had given the square root of 45.5625 as 7.675 without doing rough work or calculation and given an explanation that he worked out the square root orally. The Examination Committee was of the opinion that it was not possible to accept the explanation given by the petitioner which was rejected and consequently the inference drawn by the Committee that the candidate had found the square root by some improper method was not rejected. The inevitable conclusion in the facts and circumstances is that the petitioner used unfair means in the examination conducted by respondents.

20. By communication dated 2nd August, 2005 the petitioner was intimated that he has been disqualified for a period of one academic session following the examination in question. If the petitioner has been disqualified for a period of one year then why he should be allowed to appear and qualify only after two years, is the point for consideration, now. The punishment under the rules is cancellation of examination and/or expulsion up to a maximum period of three years on account of malpractices as are detailed in rule 8.1 describing the malpractices in the examination. Under Rule 9.2 a candidate having possession or access to papers, books or notes or material relating to Page 3410 the subject in question can be disqualified for a period of one academic session up to a maximum period of three years.

21. The order impugned by the petitioner only disqualify him for a period of one academic session and still stipulates that he will be able to appear for annual examination in 2007. The petitioner, pursuant to the interim order of this Court has already appeared in the examination, result of which was also produced by the respondent before the Court. Petitioner has not been given admission in third year pursuant to impugned order, rather the petitioner was allowed to appear in the examination and the interim order allowing the petitioner to appear in the examination had not been challenged. The petitioner has not been admitted in third year nor he is studying in the third year. In the circumstances will it be appropriate to uphold the order of the respondents directing him to appear for annual examination in 2007.

22. The reliance has been placed on , Indian Express Newspapers v. Union of India, by the petitioner to contend that in order to decide the reasonableness of restriction placed on any right, the court should take into consideration the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the disproportion of the imposition and the prevailing conditions at the relevant time including social values whose needs are sought to be satisfied by means of the restrictions. Reliance has also been placed on 1965 LL.J 462, Hind Construction and Engineering Company Ltd. v. Their workmen by the petitioner in which the workmen were dismissed on remaining absent on a day after Sunday as a holiday had fell on the Sunday. Setting aside the dismissal of the workmen, it was held by the Supreme Court that it was one of those cases in which it could be plainly said that the punishment imposed was one which no reasonable employer would have imposed in like circumstances unless it served some other purpose. The learned Counsel for the petitioner therefore, contended that though a slip having material relevant to the examination was recovered from the petitioner, however, it was not ascertained whether the material on the slip was used in the examination or not; the candidate/petitioner had shown remorse to the invigilator and had disclosed that the slip remained with him inadvertently as he had written some difficult formula in order to memorize on that slip of paper. Before the examination committee also the petitioner had shown his remorse and had sought forgiveness. The examination committee has also debarred him for one year only and on account of interpretation of different rules, the petitioner cannot be debarred for two years in the facts and circumstances.

23. In B.C.Chaturvedi v. Union of India it was held by the Supreme Court that where the finding of disciplinary authority are based on some evidence, then the court/Tribunal should not interfere with the same Page 3411 and will not re-appreciate the evidence and substitute its own findings. In this matter the Central bureau of investigation had concluded that the petitioner working as an income tax officer possessed assets disproportionate to that of his own income, however as the evidence was not sufficient the case could not be registered under the Prevention of Corruption Act. However, in the departmental proceedings initiated against him, he was dismissed from service. Central administrative tribunal upheld the charges, however, altered the punishment imposed. Relying on Bidyabhusahn Mohapatra, , Bhagat Ram v. State of H.P. and Rangaswami v. State of T.N. 1989 Suppl (1) SCC 686, it was observed by the Apex Court that it has not been laid down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or appellate authority. However, disciplinary authorities being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose an appropriate punishment keeping in view of the magnitude and gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional cases, impose appropriate punishment with cogent reasons in support thereof. Similarly in Union of India v. G Ganayutham it was held that according to Wednesbury case, while examining `reasonableness' of an administrative decision the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view. In this case 50% of respondent's pension and 50% of gratuity were withheld on proof of his misconduct. The tribunal had interfered with the quantum of punishment and had also substituted its view of the punishment. The Apex court had set aside the punishment imposed by the tribunal and had restored the punishment awarded by the Departmental authorities. The apex court had also summarized the position of proportionality in England and in India as follows:

(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was Page 3412 one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury8 test

(2) The court would not interfere with the administrators decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU9 principles.

(3)(a) As per Bugdaycay20, Brind12 and Smith19 as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.

(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of proportionality and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.

24. The quantum of punishment in disciplinary matters is, therefore, primarily for the disciplinary authority to decide and the jurisdiction of the High Court's under Article 226 of the constitution is limited and is confined to the applicability of one or other of the well-known principles known as the Wednesbury principles. This was held so by the Supreme Court in Om Kumar v. Union of India (2001) 2 SCC 386. It was held that the courts are confined to a secondary role and only has to see whether the administrator has acted Page 3413 illegally or has omitted relevant factors into consideration or whether his view is one which no reasonable person could have taken and if his action does not satisfy any of these conditions it is to be treated as arbitrary.

25. The respondents have awarded a punishment of disqualification for one academic year from 2005, yet it has also been stated that the petitioner will be entitled to take the examination in the year 2007. After awarding disqualification for a period of one year, what is the rational or reason to allow the petitioner to appear in the examination in 2007 and not in 2006, has not been explained not there is any cogent reason for the same. This is irrational. The rule itself stipulates that after the expiry of the period of disqualification such candidate shall have to reappear in the examination. As already stated that the petitioner has not been admitted to the third year of the course but was allowed to appear in the examination of one subject pursuant to interim order of this Court. If the petitioner had been disqualified for one year and after the period of dis-qualification reappeared in the examination, why his result should not be the declared? Confessions and apologies are made to get out of the situation. Confession made by the petitioner was prompt laced with remorse. The petitioner has not been exonerated as it has been held that even possession or access to notes or material relating to the subject of the question papers has disqualified him for a minimum period of one academic session. The petitioner has been disqualified under Rule 9.2 for one academic session and no reasons have been given as to how a disqualification for one year should be worked out as a disqualification for two years especially in the matter of the petitioner who had been remorseful and whose confession was not to get out of the situation. Whether the petitioner used the incriminating material recovered from him, was not material to ascertain whether he used unfair means in the examination, however, it will have relevance for the purpose of awarding punishment. The petitioner has given an explanation that he had written the formulas on the slip in order to memorize them and the slip remained with him by inadvertence. This plea of the petitioner has not been decided and considered for the purpose of imposing punishment. To assess the proportionality of punishment awarded, the Court is competent to take into consideration whether the relevant factors have been taken into consideration or not. It is true that the rules explain that the punishment of one year would be a forfeiture of the examination in which the petitioner had appeared as well as the next following year, however, rules also repose discretion on the authority for reduction. The petitioner has already lost his one academic and professional year. The petitioner has already appeared in the paper of the "front office" and the result of the petitioner has been kept in a sealed cover. If the order as passed by the respondents is sustained, then the petitioner would be liable to get admission again in the third year, which has not been granted, and to reappear in all the examinations which will be too excessive and harsh in the present facts and circumstances and will not be proportionate to the delinquent act of the petitioner. The punishment for misconduct of the petitioner should be corrective and not excessively punitive. In Union Public Service Commission v. Jagannath Mishra and Anr. Page 3414 the Apex Court had reduced the debarment of candidates from ten years to five years. In the circumstances the end of justice shall be met if the respondents are directed to declare the result of the petitioner for the subject "Front Office" in which petitioner had appeared in April, 2006 and of other papers in which the petitioner had appeared in 2005, otherwise the petitioner shall be loosing his three years and he will be able to get his professional degree, if he qualifies all the papers again in 2008 which will be too harsh and excessive in the present facts and circumstances.

27. Consequently the rule is discharged and the writ petition is disposed of with the direction to the respondents to declare the result of the petitioner forthwith for the subject "Front Office" in which the petitioner had appeared in April, 2006 pursuant to the interim order of this Court and also declare the result of the petitioner in other subjects in which he had appeared in 2005. With these directions the writ petition is disposed off and the parties are left to bear their own costs.