Harpal Singh Sangwan vs University Of Delhi & Ors.
2008 Latest Caselaw 1024 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) 6512/2007

%                  Date of Decision: 15.07.2008



      HARPAL SINGH SANGWAN                 ..... Petitioner
                    Through: Ms. Aarti Mahajan, Advocate

                   versus


      UNIVERSITY OF DELHI & ORS.             .....Respondents
                         Through: Arvind Nigam with Mr. Amit
                         Bansal, Advocates.


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers
   may be allowed to see the judgment?

2. To be referred to Reporter or not?           Yes

3. Whether the judgment should be               Yes
   reported in the Digest?

VIPIN SANGHI, J. (Oral)

1. The petitioner was student of M.A.(Russian) in the

department of Slavonic and Finno Ugrain Studies, University of

Delhi during the years 2005-07. He appeared in the final year

examination, and while awaiting the result for the said

examination, the petitioner in pursuit of his quest for further

knowledge appeared in the entrance examination on 8.7.2007 for

the Post Graduate course in "Hindi Journalism" for the session

2007-2008. His result of the M.A. (Russian) final year examination

was declared on 2.8.2007. In the first week of August 2007, the

petitioner learnt that the list of candidates who had cleared the

entrance examination for the post graduate course in "Hindi

Journalism" was out. The petitioner further learnt that his name

had been initially displayed in the list of successful candidates,

but the same was substituted with another list which did not

include his name. On 6.8.2007, the petitioner states that he

received the impugned notification dated 30.7.2007 issued by the

respondent university which reads as follows:-

"The University Administration has received complaints and reports indicating acts of gross indiscipline committed by Shri Harpal Singh Sangwan, a student of M.A. in Russian Studies, University of Delhi, South Campus. Such acts of indiscipline include physical assault, threat to use physical force against the members of teaching community and students of the Department. It has also come to the light of the authorities that Shri Harpal Singh Sangwan is in a habit of misbehaving with and abusing teachers, students and non-teaching staff of the University. These acts and examples constitute gross indiscipline within the meaning of Clause 3, particularly sub clause (a) and (i) of Ordinance XV-B of the University.

After carefully examining the matter in detail, the Vice Chancellor, under the powers vested under Ordinance XV-B, has, in order to maintain discipline, directed that Shri Sangwan be not admitted in any course in the University of Delhi for a period of next 5 years."

2. The impugned notification came as a blot from the

blue and purported to deny him his right to pursue further study

in the University for a period of five years. On account of the

aforesaid notification, it appears that the petitioner was sought to

be denied admission to the aforesaid post graduate course in

"Hindi Journalism".

3. Accordingly, the petitioner filed the present petition

under Article 226 of the Constitution of India seeking a writ of

certiorari to quash and set aside the impugned notification dated

30.7.2007 issued by respondent no.3; a direction to restraint the

respondents from acting in pursuance of the aforesaid

notification; a direction to the respondents to permit the

petitioner to take admission to any course in the University of

Delhi and to consider his candidature for the said post graduate

course in "Hindi Journalism" for which he had cleared the written

examination. He also sought a restraint against the respondent

University from finalizing the process of filling up all the seats for

the year 2007-2008 batch in the said post graduate course in

"Hindi Journalism" without considering the candidature of the

petitioner.

4. This Court issued notice to the respondents on

5.9.2007 which was accepted by learned counsel for the

respondent in Court. On 14.9.2007, this Court passed an interim

direction to keep one seat reserved in P.G. Certificate Course in

"Hindi Journalism" in South Campus, subject to final outcome of

the writ petition. The respondents did not file their

response/counter affidavit and consequently vide order dated

12.12.2007, the Court granted one final opportunity to the

respondents to file the counter affidavit within two weeks while

imposing costs of Rs.30,000/- upon the respondent. Thereafter

the respondents have filed their counter affidavit.

5. During the pendency of the petition, the respondent

University issued a notification on 26.11.2007 stating that the

competent authority had decided to grant post decisional hearing

to the petitioner and had accordingly constituted a committee

consisting of Professor V.K.Bhasin, Department of Zoology as the

Chairperson and Dr. M. Rahman, Acting Proctor as the Member

"to look into the complaints against Shri Harpal Singh Sangwan".

This notification further states: "Now therefore, the Committee

mentioned above will afford a post decision hearing to Shri

Sangwan with regard to his grievance relating to imposition of

punishment under Ord. XV-B after giving a proper notice for the

said hearing". The Committee was expected to give its report to

the Vice Chancellor within ten days from the date of issue of the

notification. The Chairperson of the enquiry committee, Professor

V.K.Bhasin issued a notice dated 26/28.11.2007 giving the

petitioner an opportunity to appear before the committee for a

hearing on 3.12.2007 with regard to his grievance relating to

imposition of punishment under Ordinance XV-B along with the

relevant records, if any, in support of his case. He was also given

an option to present his case before the Committee through a

written statement. On 3.12.2007, the petitioner appeared before

the said Committee. The Committee put to the petitioner the

four complaints which formed the basis of the action against him.

The four complaints were as follows:

"i) Complaint of misbehaviour dated 10.11.2005 from one Mr. Neeraj Dubey (Roll No.135) of Certificate course in Russian Language, addressed to the Security Incharge, University of Delhi South Campus wherein the complainant was abused and beaten up by two ex-students.

ii) Complaint dated 2.12.2005 from Dr. A. Venkat Raman, Deputy Proctor, University of Delhi South Campus addressed to Prof. A. Maurya, Head, Department of Slavic Studies, UDSC wherein it was reported that on 2.12.2005, the said Shri Harpal Singh Sangwan abused and misbehaved with the security staff and the Deputy Proctor when they were handling with one Mr. Sandeep Singh, Roll No.SCRC-215, an Ex Student of Certificate Course in Russian. Mr. Sandeep Singh was one of the two students against whom a complaint was registered by Mr. Neeraj Dubey.

iii) Complaint dated 17.4.2007 from Shri Ravindra Kumar, Private Secretary to the Director, UDSC addressed to the Director, UDSC about the

misbehaviour by the said Shri Harpal Singh Sangwan.

iv) Complaint dated 1.5.2007 from Prof. S.K.Vij, Head, Department of Slavanic & Finno Ugrian Studies, UDSC, addressed to the Director, UDSC about the act of misbehaviour by the said Shri Harpal Singh Sangawan wherein he shouted at the complainant and insulted before other faculty members in the HoD's office.

6. The petitioner sought copies of the complaints so that

he could file reply to them. The hearing was thereafter fixed on

10.12.2007. The petitioner replied to the aforesaid notice which

was delivered on 3.12.2007. He submitted another reply on

10.12.2007, to the specific complaints against him. Thereafter it

appears that the enquiry committee prepared its report on

26.12.2007 which was given to the petitioner for his comments

on or about 4.1.2008. The petitioner gave his response dated

31.1.2008 to the enquiry report. Thereafter the respondent

University passed a further order dated 8/9.5.2008 stating that

the Vice Chancellor has, after considering all the facts and

circumstances of the case and the report of the enquiry

committee, and after having examined the matter in depth come

to the conclusion that the response of the petitioner is

unsatisfactory and unacceptable and that there are no grounds

for review of its decision dated 27.7.2007 which culminated in the

impugned order dated 30.5.2007 and hence the decision dated

27.7.2007 was upheld. The order dated 8/9.5.2008, inter alia,

states that the Vice Chancellor has gone through the details of

the case, findings of the Committee and the subsequent response

of Mr. Sangwan, the petitioner and has taken into account:

"(a) that the subsequent memorandum was issued to him

to afford him one more opportunity to present his side

for defence, but his response thereto was vague, and

unsatisfactory which did not explain the charges

against him and hence it was unacceptable;

(b) that in his response, Mr. Sangwan did not offer any

evidence or material to disprove the allegations that

the Committee had concluded as proven;

(c) that in his response Mr. Sangwan did not bring out any

material irregularity or omission in the inquiry

proceedings;

(d) that Mr. Sangwan's assertions in denying the changes

were in the nature of statements without any evidence

or proof which was grossly unacceptable since the

charges against him had been proved;

(e) that in his response, Mr. Sangwan has not indicated

any such ground that the Inquiry Committee ought to

have taken into account but failed to take into

account, that could have had significant impact on the

enquiry proceedings or its findings; and

(f) that the material facts and ground realities of this case

have remained unaltered;"

7. The petitioner's representation dated 31.01.2008 and

the order dated 8/9th May, 2008 have been produced at the time

of hearing and the petitioner has been required to place them on

record. The same have, accordingly, been placed on record by

petitioner vide Additional Affidavit dated 15.07.2008.

8. The first submission of learned counsel for the

petitioner is that the impugned notification dated 30.7.2007 is

patently illegal and arbitrary, inasmuch as, it is evidently in

violation of the Principles of Natural Justice. The said order had

been passed without any notice, much less an opportunity to the

petitioner to show cause against such a drastic action as to debar

him from studying in the University for a period of five years. The

order is non-speaking. It ought to have been preceded with a

show cause notice and a hearing since it vitally affected the

petitioner's rights of pursuing further studies in the respondent

University. It is further submitted by the learned counsel for the

petitioner that in a case like the present a post decisional hearing

cannot be an adequate substitute. The impugned notification

cannot be saved by resort to the cover up exercise resorted to by

the respondents of pretending to give a post decisional hearing to

the petitioner. In this regard reliance is being placed by the

petitioner on the decision of the Supreme Court in K.I. Shephard

& Ors V. UOI & Ors., (1988) 1 SCR 188 and Shekhar Ghosh V.

U.O.I & Others (2007) 1 SCC 331.

9. Learned counsel for the petitioner further submits that

even the so called post decisional hearing granted to the

petitioner was an eye wash and was also in violation of the

Principles of Natural Justice. The respondents have completely

failed to establish any of the allegations made against the

petitioner for taking action under Ordinance XV-B. Ordinance XV-

B which deals with maintenance of discipline among students of

the University states that "All powers relating to discipline and

disciplinary action are vested in the Vice Chancellor". Clause

3(a) of Ordinance XV-B states: "Without prejudice to the

generality of power to enforce discipline under the Ordinance, the

following shall amount to acts of gross indiscipline:

"a) Physical assault or threat to use physical force,

against any member of the teaching and non-teaching

staff of any institution/department and against any

student within the University of Delhi;"

10. Clause 4 prescribes the action that could be taken to

maintain discipline by the Vice Chancellor. The relevant extract

of clause 4 reads as follows:-

"4. Without prejudice to the generality to his/her powers relating to the maintenance of discipline and taking such action in the interest of maintaining discipline as may seem to him/her appropriate, the Vice-Chancellor may, in the exercise of his/her powers aforesaid order or direct:

-

(a that any student or students be expelled; or

(b)........

(c) be not for a stated period, admitted to a course or courses of study in a college, department or institution of the University; or

(d).............

(e).............

(f)............."

11. Learned counsel for the petitioner submits that a

perusal of the notice issued by the enquiry committee would

show that even at that stage the petitioner was not informed as

to what were the charges against him, much less the material on

which the charges were based. No documents were supplied to

the petitioner which formed the basis of the charges. There was

nothing to which the petitioner could have responded at that

point of time. On 3.12.007, he was confronted with four

complaints alleged to have been made against him. He was

provided the copies of these complaints, only upon his request.

Out of these four complaints, one was of 10.11.2005 and another

of 2.12.2005 i.e over 18 months prior to the passing of the

impugned order dated 30.7.2007, while the other two were of

17.5.2007 and 1.5.2007.

12. Learned counsel for the petitioner then took me

through the four complaints which formed the basis of the

impugned action. Before I proceed to examine the issue of

legality of the procedure adopted by the enquiry committee, I

proceed to consider the issue as to whether, in a case like the

present, a post decisional hearing could be an adequate

substitute to save the impugned action of the respondents from

the vice of arbitrariness.

13. In Swadeshi cotton Mills Vs. UOI, (1981) 1 SCC

664, the appellant challenged the order passed by the

Government of India in exercise of its power under Section 18-

AA(1)(a) of the Industries (Development and Regulation) Act,

1951 for taking over the management of the company by the

National Textile Corporation on the ground of non-compliance of

the principle of audi alteram partem. The Full Bench of this Court

took the view that Section 18-AA(1)(a),(b) excludes that the

requirement of giving prior hearing to the party affected by an

order thereunder and that Section 18(F) expressly provides for a

post decisional hearing to the owner of the industrial

undertaking, the management whereof is taken over under

Section 18-AA. It was also held by the Full Bench of this Court

that the taking over of management under Section 18-AA is not

vitiated by failure to grant a prior hearing. The Supreme Court

reversed the decision of the Full Bench of this Court by a majority

decision on the aforesaid aspects. The ratio of the majority view,

as found in the head note of the decision reads as follows:-

"Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice viz: (i) audi alteram partem and (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. The general principle- as distinguished from an absolute rule of uniform application - seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute

as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fairplay "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands". The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."

14. In paragraph 67 and 68 of the judgment, the Supreme

Court interpreted the expression "that immediate action is

necessary" used in Section 18AA and concluded that it could not

be said that the use of such an expression excludes absolutely,

by inevitable implication, the application of the cardinal canon of

fair play in all cases where Section 18-AA(1)(a) may be invoked.

The Supreme Court held that the use of the expression

"immediate action" could at best be construed as "without prior

investigation". Dispensing with the requirement of such prior

investigation does not necessarily indicate an intention to

exclude the application of the principles of natural justice or the

duty to act fairly by affording to the owner of the undertaking

likely to be affected at the pre-decisional stage, wherever

practicable, a short measure fair hearing adjusted, attuned and

tailored to the exigency of the situation. The Supreme Court held

that the audi alteram partem rule is a very flexible, malleable and

adaptable concept of natural justice to adjust and harmonise the

need for speed and obligation to act fairly. It can be modified

and the measure of its application cut short in reasonable

proportion to the exigencies of the situation. In the ultimate

analysis, the question as to what extent and in what measure this

rule of fair hearing will apply at the pre-decisional stage would

depend upon the degree of urgency, if any, evident from the

facts and circumstances of the particular case.

15. In K.I. Shephard (supra), action was initiated for

amalgamation of three private banks with Punjab National Bank,

Canara Bank and State Bank of India respectively. Various

employees of the said three banks were adversely affected since

they were being taken out of employment as a result of the

amalgamation. The Supreme Court held that the rights of the

employees who were excluded from employment were vitally

affected by the decision to amalgamate and they ought to have

been heard before taking any decision to this effect. One of the

questions that arose before the Supreme Court was as to whether

the employees who were affected could be given a post

decisional hearing. The Supreme Court rejected the suggestion

that the post decisional hearing was an adequate remedy for the

affected employees, and while doing so, the Supreme Court held

as under:-

"Natural justice has various facets and acting fairly is one of them. RBI which monitored the three amalgamations was required to act fairly in the facts of the case. The situation necessitated a participatory enquiry in regard to the excluded employees. Since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the correctness whereof they deny, if an opportunity to know the allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their livelihood and brings adverse civil consequences and could obviously not be taken on the ipse dixit of RBI officers without verification of facts. It is quite possible that a maneuvering officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirement of natural justice was bad."

Xxx xxx xxx xxx xxx xxx xxx xxx xxx

" Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of

Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment."

"We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a

tendency to uphold it and a representation may not really yield any fruitful purpose."

16. In H.L.Trehan and Others V. Bharat Petroleum

Corporation Ltd, (1989) 1 SCC 764, the Supreme Court held

that there could be no deprivation or curtailment of any existing

right, advantage or benefit enjoyed by a government servant

without complying with the rules of natural justice by giving the

government servant concerned an opportunity of being heard.

Any arbitrary or whimsical exercise of power prejudicially

affecting the existing conditions of service of a government

servant will offend against the provision of Article 14. The

Supreme Court further held that a post decisional opportunity of

hearing does not sub-serve the rules of natural justice. Once a

decision has been taken, there is a tendency to uphold it and a

representation may not yield any fruitful purpose. The authority

who embarks upon the post decisional hearing will only proceed

with a closed mind and there is hardly any chance of getting a

proper consideration of the representation at such a post

decisional hearing. The Supreme Court therefore did not uphold

the action of the authority, which was sought to be defended on

the ground that after taking the action, an opportunity of hearing

had been granted to the employees with regard to the change of

their conditions of service.

17. In Shekhar Ghosh (supra), once again the issue

arose as to whether the post decisional hearing could meet the

ends of justice in that case. On the basis of certain complaints

made by his juniors, the appellant, Shekhar Ghosh had been

given a show cause notice making accusations against him that

he had bribed another employee for the change of his lien. He

filed his reply to the said show cause notice. Thereafter he was

repatriated to his original place of work. He challenged his

repatriation before the Central Administrative Tribunal (CAT).

The CAT dismissed the Original Application on the ground that his

name in the seniority list had been included by way of a mistake

and that there was no illegality or infirmity in the action taken in

repatriating the appellant. His writ petition was also dismissed by

the High Court, holding that the petitioner had been afforded a

notice and a hearing before passing the impugned order. The

High Court held that "On the representation made by the other

employees the respondents took all the care and caution, the

enquiry had been conducted and only after detection of the

mistake and after giving opportunity of hearing to the petitioner

he was reverted."

18. The Supreme Court reversed the decision of the High

Court. In paragraphs 10-14, the Supreme Court held as follows:-

"10. The appellant had asked for production of his service records which was declined. Respondents, therefore, indisputably proceeded on the basis that a mistake occurred in making an entry in the service book of the appellant. The mistake committed admittedly, thus, was on the part of the respondents.

11. The mistake was said to have been detected on the basis of the complaint made by four employees. Serious allegations had been made against the appellant therein. If the allegations made therein were correct, then not only the appellant but also other officers of the department, whom he had allegedly paid bribe for forging the documents, were guilty of misconduct.

12. The appellant had never been supplied with a copy of the said complaint. No disciplinary proceedings were initiated against him. No charge was framed, nor any witness was examined. No Inquiry Officer was appointed to conduct an enquiry into the allegations on the charges of misconduct framed against the appellant in that behalf.

13. The order dated 21.11.1996 clearly demonstrates that the Senior Divisional Officer, Kota, without holding an enquiry arrived at a finding that his original post was that of Khalasi in Wagon Repair Shop, Kota and his lien had been cancelled. He was directed to be repatriated. Despite arriving at such a finding, a post- decisional hearing was sought to be afforded to the appellant.

14. A post decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. Such a post-decisional hearing in a case of this nature is not contemplated in law. The result of such hearing was a foregone conclusion."

19. After noticing its own decisions in various other cases,

the Supreme Court, in paragraphs 22 and 23 observed:

"22. Requirements to comply with the principles of natural justice would, therefore, vary from case to case. If upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different finding, the principles of natural justice must be complied with.............."

23. In this case, Respondents accept that appellant was entitled to a hearing. All the necessary ingredients of principles of natural justice were thus required to be complied with. Appellant as noticed hereinbefore had not been given adequate opportunity of hearing inasmuch as: (i) the hearing was sought to be given was a post- decisional one, which is bad in law; (ii) a copy of the complaint was not supplied to appellant at furtherance if not proposed that a mistake was sought to be rectified; (iii) No charges were framed;

(iv) no witness was examined; and (v) no Inquiry Officer arrived at any finding that appellant was guilty of the charges leveled against him."

20. From the above decisions it is apparent that a post

decisional hearing cannot be a substitute for a pre-decisional

hearing. Where a pre-decisional hearing is not excluded by

Statute, only in cases of exceptional urgency, where it is not

possible to give a pre-decisional hearing on account of the

emergent situation, the pre-decisional hearing may be dispensed

with, provided, a full review or appeal on merits against the

decision is available. However, even in such cases, minimum

compliance of the rules of Natural Justice should be observed to

the extent possible.

21. As noticed above, two of the four complaints against

the petitioner are of the year 2005, while the other two are of

17.4.2007 and 1.5.2007. Therefore, before issuing the impugned

notification dated 30.7.2007, the respondents had sufficient time

to give notice to the petitioner and to conduct an enquiry before

proceeding to debar him from taking admission in the University

for a period of five years. A perusal of Ordinance XV-B shows

that the same does not exclude the compliance of the Principles

of Natural Justice. It did not even lay down any condition with

regard to the time period within which action could have been

taken by the Vice Chancellor against the petitioner. There was no

tearing hurry to issue the impugned notification. An order, in

exercise of power under Ordinance XV-B could be passed at any

time of the academic session and there is no requirement that it

should have been passed before the student takes admission in

any other course in the University.

22. It appears that the impugned notification was issued in

haste to somehow block the move of the petitioner to take

admission in the P.G Certificate Course in "Hindi Journalism" for

the academic session 2007-08. Therefore, in my view the post

decisional hearing stated to have been granted to the petitioner

was not a legally sustainable substitute.

23. Mr. Nigam has sought to justify the decision to give a

post decisional hearing to the petitioner by reference to the legal

opinion sought by the University. In my opinion, the same is

neither here nor there. The said opinion cannot bring to life the

still born action of the respondent in issuing the impugned

notification dated 30.7.2007. In any event, it does not appear

that the University sought any opinion on the aspect as to

whether the impugned notification itself could have been issued

without complying with the principles of natural justice.

24. Mr. Nigam relied on Narender Singh V. University

of Delhi, 70(1997) DLT 509. This was a case were a student had

been denied admission to the college on account of his

involvement in ragging. In my view, this decision has no

application in the facts of this case for the reason that the Court

itself examined the material placed on record and came to the

conclusion that the respondent University and the disciplinary

committee perceived that the petitioner was a threat to the

discipline and peaceful functioning of the college and by the

impugned action, they intended to prevent the return of the

petitioner to the college to avoid his presence in the college

campus. However, in the present case, as would become clear

from the following discussion there is no material whatsoever,

apart from the unsubstantiated complaints relied upon by the

respondent.

25. Reliance is also placed by Mr. Nigam on Ajit Kumar

Nag V. General Manager(PJ), Indian Oil Corporation

Ltd.,(Haldia) and Others, (2005) 7 SCC 764. In this decision,

the Supreme Court held that the principles of natural justice are

not rigid or immutable and hence they cannot be imprisoned in a

straitjacket. They must yield to and change with exigencies of

situations. They must be confined within their limits and cannot

be allowed to run wild. While interpreting the provisions, a court

of law cannot be unmindful of the hard realities of life. The

approach of the Court in dealing with such cases should be

pragmatic rather than pedantic, realistic rather than doctrinaire,

functional rather than formal and practical rather than

"precedential". In certain circumstances, application of the

principles of natural justice can be modified and even excluded.

Both in England and in India, it is well established that where a

right to a prior notice and an opportunity to be heard before an

order is passed would obstruct in the taking of prompt action,

such a right can be excluded. It can also be excluded where the

nature of the action to be taken, its object and purpose and the

scheme of the relevant statutory provisions warrant its exclusion.

The maxim audi alteram partem cannot be invoked if import of

such maxim would have the effect of paralyzing the

administrative process or where the need for promptitude or the

urgency so demands. The principles of natural justice have no

application when the authority is of the opinion that it would be

inexpedient to hold an enquiry and it would be against the

interest of security of the Corporation to hold an enquiry and it

would be against the interest of security of the Corporation to

continue in employment the offender workman when serious acts

were likely to affect the foundation of the institution."

26. Merely relying on the aforesaid extract without stating

why it was not possible in the facts of this case to comply with

the Principles of Natural Justice is not sufficient. In para 44 of this

decision, the Supreme Court observed that the normal rule is

that a person must have a fair trial and a fair appeal and he

cannot be asked to be satisfied with an unfair trial and a fair

appeal. The Court also noticed the general principle that pre-

decisional hearing is better and should always be preferred to

post-decisional hearing.

27. Paragrah 50 of this decision is also relied upon

wherein the Supreme Court noted its earlier decision in Satyavir

Singh V. Union of India, (1985) 4 SCC 252. The Supreme Court

in Satyavir Singh (supra) held that taking an appropriate action

in exceptional circumstances is a matter of assessment to be

made by the disciplinary authority and must be judged in the

light of the circumstances then prevailing. Normally, it is the

officer on the spot who is the best judge of the situation and his

decision should not be interfered with lightly.

28. In Satyavir Singh (supra), the Court was concerned

with the dismissal orders passed against some of the employees

of the Research and Analysis Wing (RAW) without holding enquiry

as contemplated by Article 311(2) of the Constitution. In my view

even this decision has no application in the facts of this case.

That was a case pertaining to the employees of the RAW which is

one of the intelligence and under-cover agencies of the country.

In the facts of that case, the Court affirmed the action dispensing

with the enquiry under Article 311(2) of the Constitution. Mr.

Nigam, then relied on the observations of the Supreme Court in

M.C.Mehta V. Union of India, (1997) 6 SCC 237, wherein the

Supreme Court held that if it is clear that if on the admitted and

indisputable factual position, only one conclusion is possible and

permissible, the Court need not issue a writ merely because there

is violation of the Principles of Natural Justice. I cannot

appreciate how this observation of the Supreme Court advances

the respondent's defence. Even Mr. Nigam could not dispute the

position that in the present case it could not be said that the only

conclusion that the enquiry committee could have arrived at,

had the petitioner been given a pre decisional hearing, to hold

him guilty of the allegations made against him.

29. I now proceed to examine the issue of legality of the

procedure adopted in the conduct of the enquiry against the

petitioner conducted at the post decisional stage and the legality

of the order dated 8/9th May, 2008 passed by the respondents.

30. The first complaint is stated to have been made by a

student called Neeraj Dubey on 10.11.2005. This complaint

merely states that the complainant is a student of Russian

language certificate course. In the morning of that day, two boys

came to him. They took him aside and started abusing him. He

also stated that he was beaten by them. This complaint neither

names the two boys accused of having assaulted the

complainant, nor the petitioner herein.

31. The next complaint dated December 2, 2005 is stated

to have been made by Dr. A.Venkat Raman, Deputy Proctor,

University of Delhi South Campus, Delhi University addressed to

professor A.Maurya, Head of the Department of Slavonic Studies.

In this complaint, Dr. A. Venkat Raman complained about the

behavior of the petitioner. It was stated that the petitioner very

frequently and unnecessarily interfered in the security

management of South Campus. On many occasions he had used

abusive language and had been threatening not only the security

guards and security officers but also the students of other

departments, staff in the University hostels and sanitary staff of

various departments. It was further stated that on 10.11.2005,

one student from Russian Language Certificate Course, Mr.

Sandeep Singh had beaten up another student, Neeraj Dubey.

While acting on the complaint of the student, the security staff

were prevented from performing their duty by the intervention of

the petitioner. As a result, Mr. Sandeep Singh ran away from the

campus. It was further alleged that the petitioner had

misbehaved with the complainant, Dr. A. Venkat Raman during

his intervention. It was further stated that on 2.12.2005 when

Sandeep Singh appeared in the Campus, the security officers

accosted him for questioning but were prevented from doing so

and were abused by the petitioner.

32. The petitioner in his replies before the Enquiry

Committee stated that the complaint by Neeraj Dubey does not

concern him. He went on to say that he had got the said dispute

amicably settled and compromise application was with the

security officer. He further stated that there was no question of

his preventing any one and that it was the staff who were

violating at will the fundamental rights of the students. It was

also stated that Dr. A. Venkat Raman had fabricated the

complaint since no complaint was received from the staff. The

petitioner in his reply before the Committee in relation to this

particular complaint denied the allegations as being totally

untrue.

33. Learned counsel for the petitioner submits that

despite the aforesaid denial of the charges by the petitioner, the

enquiry committee did not actually conduct any enquiry into the

aforesaid allegations of the petitioner. Neither of the

complainants, Neeraj Dubey nor Dr. A. Venkataraman were called

to make their statements even to say that they had made the

complaints. Even the security staff who were allegedly prevented

by the petitioner from performing their duties or threatened by

the petitioner, were not called by the Committee. Merely on the

basis of the said stale complaints of November and December

2005, the impugned drastic action was taken of debarring the

petitioner for a period of five years on 30.7.2007 and that too

without any affording any opportunity to show cause against such

action. Learned counsel for the petitioner further submits that

the complaint made by Dr. A. Venkata Raman had, in fact been

disposed of by Professor A. Maurya, the Head of the Department

of Slavonic Studeis. This stand of the petitioner was taken in his

response filed before the Vice Chancellor after receiving the

enquiry report.

34. The third complaint was dated 17.4.2007, made by

one, Mr. Ravinder Kumar, P.S in the office of the Director, South

Delhi Campus addressed to the Director, University of South Delhi

Campus. The allegations in this complaint made by Sh. Ravinder

Kumar was with regard to the aggressive and threatening

behavior of the petitioner towards the complainant and the other

administrative staff. He stated that the petitioner had been

seeking an appointment with the Director for a number of days.

The complainant had made efforts to contact the petitioner on his

mobile phone. On each occasion when he tried to contact the

petitioner, he disconnected the phone. He further stated that in

the presence of Shri Sweer Singh, the Security Officer and Shri

Suresh, Office Attendant, the petitioner on 17.4.2007 denied

having received any phone calls from the complainant's office,

and that he further shouted at the complainant and called him a

liar. With regard to this complaint, the enquiry committee did

not reach to any conclusion. The enquiry report concluded that

the Committee had decided not to go into further details about

the said complaint. Consequently, the charges made against the

petitioner in the complaint of Mr. Ravinder Kumar could not be

said to have been proved. Moreover, even in relation to this

particular complaint the complainant, Mr. Ravinder Kumar or the

other two witnesses, namely Mr. Sweer Singh and Mr. Suresh

were neither called nor produced to make a statement before the

enquiry committee.

35. The only other complaint made against the petitioner

was made by Professor S.K.Vij on 1.5.2007. In his complaint, the

complainant stated that on 20.4.2007 when a meeting of the

Departmental Council was being held, the petitioner barged into

the meeting to make certain demands/claims. He was requested

to wait for some time as the meeting was in progress. Later he

was invited to make his representation. At that stage he

behaved in a manner unbecoming of a student. He shouted and

insulted the complainant and other members of the staff when

they tried to intervene. He even demanded that the complainant

should go for a psychological test besides making other baseless

allegations. Pertinently, the complainant also enlists the names

of ten other persons who were stated to be present at the time of

the said incident. He also stated that this was not an isolated

incident and in the past as well the petitioner had misbehaved

with the teachers, students and non-teaching staff in the office.

In his reply to the enquiry committee, the petitioner stated that

all the facts were distorted. He further stated that no staff

present had made any complaint in this regard. He also placed

as Annexure `A', a certificate addressed "To whom it may

concern" signed by seven students including himself. In this

certificate signed by six other students, it was, inter alia, stated

that after waiting for an hour or so, these students went inside

and gave details of all the problems to the complainant. The

enquiry committee in its report records that during the course of

the enquiry, Mr. Sangwan had admitted that he entered the room

of Mr. S.K. Vij, Head of the Department without his permission

when the Head of the Department was presiding over a meeting

of the Committee. From this, the enquiry committee concluded

that "Shri Sangwan has failed to maintain proper discipline

wherein he forcibly entered into the room of his Head of

Department when a statutory meeting was going on. He further

misbehaved with his HOD and other faculty members under the

guise of redressing some grievances of self and other students".

Hence the allegation made at para 3 (iv) was taken as proved

beyond any doubt.

36. It is pertinent to note that no grievance was, in fact,

made by Professor Vij with regard to the fact that the petitioner

had entered the room when the meeting was on. This is clear

from the fact that even in the complaint, Professor Vij states that

the petitioner was requested to wait for some time as the

meeting was in progress. Later he was invited to make his

representation. This shows that upon being asked to wait to be

heard, the petitioner left the meeting and allowed it to proceed

without any intervention and again presented himself before

Professor Vij only upon being sent for. The real grievance

contained in the complaint is with regard to the alleged

misbehavior of the petitioner with Prof. Vij in the presence of ten

other named persons. It is absolutely unclear as to how the mere

presence of the petitioner in the said statutory meeting when he

was sent for, could be taken to conclude that he had misbehaved

with Professor Vij. Not one of the ten other persons and not even

the complainant, Professor Vij were called by the enquiry

committee.

37. Mr. Nigam submitted that so far as the complaint

made by Mr. S.K.Vij is concerned, the petitioner in his response

did not deny the acts of misbehavior attributed to him. He

submits that, therefore, the enquiry Committee was entitled to

proceed on the basis that since there was no denial, it

tantamounted to an implied admission of his guilt by the

petitioner. I do not agree with the submission of Mr. Nigam

either. As noticed hereinabove, in his response to the said

complaint, the petitioner has stated that the facts are distorted;

that no staff present has made any complaint in this regard and

that 7 students had given a certificate with regard to what had

transpired in the said meeting with Professor Vij. Therefore, it

cannot be said that the petitioner did not deny the allegations

made in the complaint of Profession Vij. Moreover, the enquiry

committee itself does not proceed on the basis of the so-called

admission of guilt by the petitioner as contended by Mr. Nigam.

This appears to be merely an argument weaved by Mr. Nigam on

account of his own ingenuity.

38. It was for the University to have produced at least

some kind of evidence before the enquiry committee to

substantiate the allegations made against the petitioner in the

first instance with an opportunity to him to deal with the evidence

and to confront the University's witnesses. If such a mockery of

an enquiry is accepted as a legal enquiry, it would become very

easy for the University to victimize any student or ex-student by

collecting such like complaints and proceedings to debar the

person from studying in the University, by assuming the

complaints to be true without taking any steps to substantiate

and prove the allegations in a fair and reasonable manner. Even

co-students, staff and teachers would get a free handle to make

complaints against any student and mar his career. It is true that

it is not for the courts to assess for itself as to whether the

allegations are true or not by evaluating the evidence. However,

the Court would at least satisfy itself whether the proceedings

were fairly conducted, such that the person accused of

misconduct or misbehavior has got a reasonable opportunity to

defend the charges against him, and whether or not there was

some material evidence and basis for the action taken against

the person concerned, which vitally affect his civil rights. As

aforesaid, in the present case, apart from the four complaints,

two of which are of the year 2005, no material whatsoever was

produced in the enquiry, or required to be produced by the

enquiry committee to substantiate any of the complaints.

39. In fact, it appears that the so called enquiry was a

mere eye wash. It was not even meant to be an enquiry. The

notification whereby the enquiry committee was constituted

required the Committee to submit its report to the Vice

Chancellor within ten days when there were four different

complaints involving different set of people with a host of

witnesses involved in these alleged instances. Not a single

witness, not even the complainants were called by the

Committee to make their statements to support their complaints.

In fact such an enquiry cannot be called an enquiry, since the

committee really made no effort to enquire into any of the

allegations against the petitioner, much less into his defence in

respect of each of them. The so called enquiry is not based on

any material or evidence whatsoever. The decision in Shekhar

Ghosh (supra) supports the submission of the petitioner that the

so-called enquiry conducted against him even at the post

decisional stage was totally illegal and of no effect.

40. Now coming to the order dated 8/9.5.2008, it is again

seen that the same has been passed on a totally unsustainable

basis. It appears that the Vice Chancellor did not even apply his

mind to the enquiry report and merely accepted the said report

mechanically. Since it is the Vice Chancellor under Ordinance XV-

B who is the competent authority to decide the action to be taken

in respect of any gross indiscipline, either he should have held

the enquiry of his own, or if he had chosen to have the enquiry

conducted through an enquiry committee, he should have at

least analysed the evidence if any, produced in the enquiry

proceedings before accepting the enquiry report as the gospel

truth. The onus to prove his innocence has been placed by the

Vice Chancellor on the petitioner, as is evident from his

observation that the petitioner did not offer any evidence or

material to dispute the allegations that the Committee had

concluded as proven. The Vice Chancellor does not appear to

have even considered as to how, and on the basis of what

material, the allegations which were totally unsubstantiated,

were taken to be proved. This order of the Vice Chancellor

betrays lack of understanding on his part of even the basic

Principles of Natural Justice and fairness.

41. At this stage, I must also take note of the submission

of the petitioner qua Dr. Deepak Paintal, the Vice Chancellor of

Delhi University who has been arrayed as respondent no.2 in his

personal capacity in the writ petition. It is the case of the

petitioner that he has been raising various issues concerning the

University which, according to him, appear to have annoyed the

Vice Chancellor. He further states that " the Vice Chancellor of

the University, Dr. Deepak Paintal and the petitioner, are both

experts in the field of genetics. There is a lot of controversy

against genetically modified foods and the petitioners has

strongly opposed as a farmer activist, the Vice Chancellor's view

on the same at national and international meetings, W.T.O etc."

42. He has further labeled the impugned notification dated

30.7.2007 as being a result of, inter alia, malafides on the part of

the respondents which includes the Vice Chancellor. Also from

the various responses given by the petitioner to the respondents,

and correspondences undertaken by him , it is seen that there is

a sprinkling of various allegations made against the Vice

Chancellor from time to time. Despite being made as a party

respondent in his personal capacity, the Vice Chancellor, Mr.

Deepak Paintal has chosen not to file an affidavit to controvert

the allegations made against him. However, at this stage, I do

not think it necessary to go into the aspect of the personal mala

fides attributed to Mr. Deepak Paintal, and I am leaving this

aspect open for the petitioner to raise, in case the petitioner

wishes to raise the same at any subsequent stage, if he feels that

he has been wronged on account of the mala fides of any

particular person.

43. Mr. Nigam submits that the petitioner was not a

student of the University as on 30.7.2007 since he had already

completed his M.A Russian Language course when the impugned

order was passed on 30.7.2007. To this, learned counsel for the

petitioner has countered by submitting that the result of the

petitioner for the said post was declared only on 2.8.2007 and till

the results are declared it could not be said that the petitioner

has qualified in the said examination. He therefore continued to

remain a student of the University. Counsel for the petitioner

contends that the impugned notification itself describes the

petitioner as a student of the University.

44. The aforesaid submission of Mr. Nigam is advanced to

justify the failure to hold any enquiry against the petitioner prior

to the issuance of the impugned notification. In my view, apart

from the submission of the respondents that the petitioner was

not a student as on 30.7.2007 being incorrect, the same, in any

case does not justify the failure of the respondents in complying

with the Principles of Natural Justice. The respondents have

themselves described the petitioner as a student of M.A in

Russian Studies in the impugned notification itself. Moreover his

result for the said examination had not been declared when the

impugned notification was issued on 30.7.2007. It appears that

the decision on the basis of which the impugned notification was

issued had been taken by the Vice Chancellor on 27.7.2007 i.e.

even prior to 30.7.2007. In my view, not much turns on this

aspect. Whether or not the petitioner was a student at the time

when the notification dated 30.7.2007 was issued, he would was

entitled to be informed about the charges against him as well as

the action proposed to be taken against him and to be heard in

the matter before taking action so drastic as to debar him from

pursuing any study in the University for 5 long years. It is true

that Ordinance XV-B does not prescribe the procedure which is

to be adopted to conduct the enquiry. Therefore, the enquiry had

to be conducted in compliance with the basic Principles of Natural

Justice. In the present case there was absolutely no compliance

of the Principles of Natural Justice prior to the issuance of the

impugned notification dated 30.7.2007.

45. For the aforesaid reasons, in my view, the impugned

notification dated 30.7.2007 and all proceedings subsequent

thereto including the order dated 8/9.5.2008 whereby the Vice

Chancellor has decided not to recall or review his aforesaid

notification, deserve to be quashed. I accordingly quash the

same.

46. The next issue that remains to be considered and

decided upon is as to what relief the petitioner can be granted

in the facts of this case. When the petition was initially filed, the

result of the PG certificate course of "Hindi Journalism" had been

declared. The respondent does not dispute the position that the

petitioner had in fact qualified in the written examination. The

process of selection for the said test entailed an entrance test

followed by an interview. The Court had passed an interim order

on 14.9.2007 directing the respondents to keep one seat

reserved in PG Certificate Course in "Hindi Journalism" in South

Campus, subject to the outcome of the writ petition. In the

meantime, the academic year 2007-2008 has already come to a

close. In fact the entrance test for admission to the academic

session 2008-09 has already been held and the petitioner has

obviously not been able to take the said examination since the

impugned notification dated 30.7.2007 was staring him in his

face. The petitioner submits that he has been prevented from

applying for any other course for the current academic session,

2008-09 since the impugned notification dated 30.7.2007

continued to remain operative. The petitioner had moved

C.M.12243/2007 along with the writ petition seeking stay of the

operation of the impugned notification dated 30.7.2007.

However, the said relief had not been granted by the Court and

the only relief granted, as aforesaid, was to reserve one seat for

the petitioner in the said post. The fact that the hearing of the

petition has been delayed on account of the conduct of the

respondents is also evident from the record of this case. On

12.12.2007 on account of the non-filing of the counter affidavit by

the respondents, the respondents were subjected to costs of

Rs.30,000/-. In these facts and circumstances, in my view, the

petitioner should not be made to suffer on account of the delay

caused by the respondents and the consumption of some time in

deciding this petition. As it is, the petitioner has lost out on one

academic year.

47. Looking to all the circumstances, I am of the view that

it would be fair and reasonable to direct the respondents to

consider the entrance test result of the petitioner for the

examination 2007-08 for the current academic year, and on that

basis to proceed to hold his interview for admission to the "Hindi

Journalism" P.G Certificate Course for the academic year 2008-

09. The petitioner shall be called for interview by the

respondents by issuing a written communication against

acknowledgement within ten days from the date of receipt of this

judgment. In case the petitioner is otherwise eligible to apply for

any other course, and in which there are still vacancies/seats

available, the petitioner would be entitled to apply for the same

within ten days from the date of receipt of this judgment. A

certified copy of this judgment shall be sent by the Registry for

compliance to the respondent University without any delay.

48. The petitioner has been subjected to absolutely

arbitrary and illegal acts which have resulted in his being

deprived of his right to study in the University for one year. In

my view this is a fit case for grant of exemplary costs.

Considering the fact that the respondent has already been

subjected to costs of Rs.30,000/-, I impose further cost of

Rs.30,000/- to be paid by the respondents to the petitioner.

VIPIN SANGHI, J.

JULY 15, 2008 as/rsk