Akshay Chaudhary & Anr. vs University Of Delhi & Anr.
2010 Latest Caselaw 4147 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 8th September, 2010.

+                  W.P.(C) No.1897/2010 & CM No.9422/2010

%

AKSHAY CHAUDHARY & ANR.                     ..... Petitioners
               Through: Mr. Satyendra Kumar & Ms. Sunita
                        Bhardwaj, Advocates

                                      Versus

UNIVERSITY OF DELHI & ANR.                  ..... Respondents
                 Through: Mr. Mohinder J.S. Rupal, Advocate
                           for R-1.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                   Yes

2.       To be referred to the reporter or not?            Yes

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

RAJIV SAHAI ENDLAW, J.

1. The two petitioners by this writ petition impugn the order of the

respondent no.1 University of Delhi expelling the petitioners from the

respondent no.2 Kirori Mal College of which they were final year students in

the academic session 2009-2010. The complaint against the two petitioners,

who had then been recently promoted to the final year, was of ragging a

fresher admitted in the first year in academic session 2009-2010. The

petitioners were proceeded against in terms of the then freshly promulgated

(on 4th July, 2009) University Grants Commission Regulations on curbing

the menace of Ragging in Higher Educational Institutions, 2009. On the

complaint of the victim, of ragging by the petitioners, a First Information

Report (FIR) was also lodged by the Police Authorities on 3rd August, 2009

against the petitioners. The respondent no.2 Kirori Mal College vide order

dated 3rd August, 2009 expelled the petitioners from the College as well as

the College Hostel with immediate effect.

2. The petitioners apologized to the respondent no.2 Kirori Mal College

and assured the College of good behavior in future. The College vide its

order dated 19th/20th November, 2009 allowed the petitioners to attend

classes and to sit in the College Midterm Examination as well as University

Examination, subject to the approval of the Vice-Chancellor of the

University.

3. The Vice-Chancellor however rejected the application of the College

for approval and as such vide order dated 25th November, 2009, the College

revoked the earlier order dated 19th/20th November, 2009.

4. The petitioners being the perpetrators of the crime of ragging reached

a settlement with their victim on whose complaint the FIR had been lodged.

A compromise deed dated 22nd December, 2009 was signed between the

petitioners on the one hand and their victim on the other hand. Armed with

the said compromise deed a writ petition under Section 482 of the Code of

Criminal Procedure, 1973 being Criminal Misc. Case No.7/2010 was filed in

this Court for quashing of the FIR. This Court in the order dated 22 nd

January, 2010 though noticed that one of the offences with which petitioners

had been charged was not compoundable, finding that the antecedents of the

petitioners otherwise were clean and on the assurance of the petitioners that

in future there will be no complaint whatsoever against them and being of

the view that the pendency of the FIR would mar the career of the

petitioners, quashed the FIR and the proceedings emanating therefrom.

5. After the quashing of the FIR, the petitioners again represented to the

respondent no.2 College and the College vide order dated 19th / 23rd

February, 2010 again withdrew the expulsion order against the petitioners

subject to the approval of the Vice-Chancellor of the University.

6. The Vice-Chancellor again rejected the application of the College and

vide order dated 15th March, 2010, the College maintained the order of

expulsion of the petitioners from the College and the Hostel.

7. It was then that the present writ petition was filed along with an

application for interim relief to permit the petitioners to appear in the final

year examination commencing from 30th March, 2010. This Court vide a

detailed order dated 22nd March, 2010 dismissed the application of the

petitioners for interim relief. The said order has attained finality. The result

thereof is that the petitioners who in the normal course would have taken

their final year examination in March/April, 2010 have not taken the said

examination and have in any case lost one year. But the question herein is of

not losing one year. The petitioners stand expelled from the

College/University and as long as the said order remains, are unlikely to gain

admission in any other College/University also.

8. The matter came up before this Court on 13th July, 2010 when

attention of the counsel for the University was drawn to Clause 9 of the

Regulations aforesaid and which is as under:-

"9. Administrative action in the event of ragging:- 9.1 The institution shall punish a student found guilty of ragging after following the procedure and in the manner prescribed herein under:

a) The Anti-Ragging Committee of the institution shall take an appropriate decision, in regard to punishment or otherwise, depending on the facts of each incident of ragging and nature and gravity of the incident of ragging established in the recommendations of the Anti-Ragging Squad.

b) The Anti-Ragging Committee may, depending on the nature and gravity of the guilt established by the Anti-Ragging Squad, award, to those found guilty, one or more of the following punishments, namely;

i. Suspension from attending classes and academic privileges.

ii. Withholding/ withdrawing scholarship/ fellowship and other benefits.

iii. Debarring from appearing in any test/ examination or other evaluation process.

iv. Withholding results.

v. Debarring from representing the institution in any regional, national or international meet, tournament, youth festival, etc. vi. Suspension/ expulsion from the hostel. vii. Cancellation of admission. viii. Rustication from the institution for period ranging from one to four semesters. ix. Expulsion from the institution and consequent debarring from admission to any other institution for a specified period.

Provided that where the persons committing or abetting the act of ragging are not identified, the institution shall resort to collective punishment.

c) An appeal against the order of punishment by the Anti-Ragging Committee shall lie, i. in case of an order of an institution, affiliated to or constituent part, of a University, to the Vice- Chancellor of the University;

ii. in case of an order of a University, to its Chancellor.

iii. in case of an institution of national importance created by an Act of Parliament, to the Chairman or Chancellor of the institution, as the case may be."

9. The aforesaid Clause would show that expulsion from the institution

and consequent debarring from admission to any other Institution for a

specified period is the harshest of the 9 administrative punishments provided

for ragging. In the present case, the expulsion and consequent debarring

from admission to any other Institution is not for any specified period but is

indefinite. It was felt that the matter had not been considered by the Vice-

Chancellor from the aspect of the proportionality of punishment. The

counsel for the University was as such asked to take instructions from the

Vice-Chancellor on the said aspect.

10. The counsel on 2nd August, 2010 informed that the Vice-Chancellor

had considered the matter afresh but in larger public interest to curb the

menace of ragging had not acceded to the representations of the petitioners

for confining their expulsion to one academic year only and to allow them to

undergo final year again.

11. The matter has thus been heard on merits.

12. The petitioners have not challenged the factual aspect of having

indulged in ragging. The petitioners have also not contended that there was

any defect in the procedure adopted by the College/University in inflicting

the administrative punishment on them. The counsel for the petitioners has

only contended that the petitioners be permitted to undergo final year of

their graduation in the academic session 2010-11 to enable them to appear in

the examination scheduled in 2011. The petitioners are not even seeking

admission to the Hostel. The counsel for the petitioners further states that if

the punishment is confined to rustication for one year which they have

already undergone, they will not take the matter further.

13. I have therefore considered the matter only from the aspect of

proportionality of punishment.

14. However before proceeding to discuss the same it would be

appropriate to record that the menace of ragging in educational institutions

was reaching alarming proportions and demanded the situation to be dealt

with a stern hand. I must also add that owing to measures including as taken

against the petitioners, the menace appears to have toned down considerably

in the current academic year. No fault can thus be found with the decision of

the Vice-Chancellor. The Vice-Chancellor has the onerous task of

maintaining discipline in the University/Educational Institutions affiliated to

the University and in a situation as of ragging ought to send a strong

deterrent signal. Thus, the matter has to be considered not only from the

aspect of punishment to the culprits but also from the aspect of sending a

strong deterrent signal so as to prevent others from indulging in such vice. It

is the Vice-Chancellor‟s duty to prevent recurrence of such incidents in the

large campus under his jurisdiction. I, therefore, intend to clarify that this

Court in considering the aspect of proportionality does not intend to cast any

doubt as to the reasons under which the Vice-Chancellor of the respondent

University has acted. As far as the Vice-Chancellor is concerned, the larger

interests of academic life in the campus and the interests of other students

outweigh the individual interests of the petitioners.

15. This Court has however reconsidered the matter only on the thought

that, all in all punishment hardens and renders people more insensible; it

concentrates; it increases the feeling of estrangement; it strengthens the

power of resistance (courtesy Friedrich Nietzsche, German Philosopher) and

that any punishment that does not correct, that can merely rouse rebellion in

whoever has to endure it, is a piece of gratuitous infamy which makes those

who impose it more guilty in the eyes of humanity, good sense and reason,

nay a hundred times more guilty than the victim on whom the punishment is

inflicted. (courtesy Marquis De Sade, French Novelist). The French

Philosopher Voltaire famously said that the punishment of criminals should

be of use, when a man is hanged he is good for nothing. Justice Krishna Iyer

also in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P.

AIR 1978 SC 429 observed that punitive harshness should be minimized.

16. The petitioners were young lads barely 20 years old when indulged in

ragging. Undoubtedly they are guilty, however the said guilt will be in the

context of their youth. Aristotle said "Young people are in a condition like

permanent intoxication, because youth is sweet and they are growing".

Oscar Wilde by saying "To get back one‟s youth one has merely to repeat

one‟s follies" put the matter succinctly.

17. The question therefore which perturbed me was that when the

Regulation aforesaid provides for administrative punishment, of minimum of

suspension from attending classes and academic privileges and maximum of

expulsion from the Institution and consequential debarring from admission

to any other Institution for a specified period, whether the maximum

punishment is today justified. The signal intended to be sent by expelling the

petitioners has already reached where it was intended. The petitioners have

shown sufficient remorse. They have not indulged in any reckless litigation.

I find that students punished for ragging or violation of disciplinary norms

of the College/University have approached this Court in the past with all

kinds of pleas, of the principles of nature justice having not been complied

with, hearing having not been given, right of cross examination having been

not given (see Ashish Bhateja v. Indian Institute of Technology AIR 1993

Delhi 354 and Mansoor Azam v. Jamia Millia Islamia 90(2001) DLT 735).

The petitioners have not indulged in disputes of any such nature.

18. To allow the punishment as meted out to stand would also amount to

nullifying what this Court had attempted to do by quashing the FIR against

the petitioners. Not only the petitioners would remain without Degree of

graduation but their future prospects would also be seriously hampered.

19. The Supreme Court in Ranjit Thakur Vs. Union of India AIR 1987

SC 2386 held that the question of choice and quantum of punishment,

though within the jurisdiction and discretion of the punishing authority, but

the sentence has to suit the offence and the offender; it should not be

vindictive or unduly harsh nor it should be so disproportionate to the offence

so as to shock the conscience and amount in itself to conclusive evidence of

bias; the punishment if in outrageous defiance of logic, then would not be

immune from correction. Reliance was placed on the earlier judgment in

Bhagat Ram Vs. State of Himanchal Pradesh AIR 1983 SC 454 laying that

penalty imposed must be commensurate with the gravity of the misconduct

and that any penalty disproportionate to the gravity of misconduct would be

violative of Article 14 of the Constitution.

20. The Supreme Court in B.C. Chaturvedi Vs. UOI AIR 1996 SC 484

held that the Court in exercising the power of judicial review, depending

upon the facts, is empowered to appropriately mould the relief, either by

itself imposing another penalty with a view to shorten the litigation or by

refering matter back to the disciplinary authority. The disciplinary authority

in the present case being the Vice-Chancellor as in-charge of the educational

Institution, with a view to ensure that discipline is maintained and required

to be armed with sufficient power so that those who are to study and

improve their careers should not be the victims of a handful of persons in the

Institution who spoil the academic atmosphere by indulging in anti-social

activities in the matter of discipline has chosen not to consider the

representation of the petitioners.

21. The Division Bench of the Karnataka High Court in T.T.

Chakravarthy Yuvraj Vs. Principal, Dr. B.R. Ambedkar Medical College

AIR 1997 Karnataka 261 held that in inflicting appropriate punishment,

certain aspects have to be borne in mind. The relationship of the Head of the

Institution and the student is that of a parent and child, the punishment

imposed should not result in any retribution or give vent to a feeling of

wrath. The main purpose of punishment is to correct the fault of the student

concerned by making him more alert in future and to hold out a warning to

other students to be careful, so that they may not expose themselves to

similar punishment and the approach is that of a parent towards an erring or

misguided child. It was held that the concerned Head of the Institution must

necessarily have an introspective and a rational faculty as to why lesser

penalty cannot be imposed. In doing so, it should also be borne in mind that

when the maximum penalty is imposed, total ruination stares one in the eye

rendering such student a vagabond as being unwanted both by the parents

and the educational Institution. Frustration that would result would seriously

jeopardise young life. Every harsh order results in bitterness and arouses a

feeling of antagonism and many a time turns a student into an anti-social

element and in that way it results in more harm than good to the society. A

student in the hands of Principal/Head is a child in the hands of a parent and

a parent would never want the career of a child to be completely destroyed

by expulsion which necessarily renders him unfit for any other career either,

for no College would be willing to grant them admission to enable them to

complete their studies thereby leading to such frustration and disappointment

or despondency which may lead even either to suicide or turn them into anti-

social elements.

22. Therefore permanently putting an end to the career of the petitioners

would not be an appropriate punishment. The Karnataka High Court quotes

Shakespeare in "Merchant of Venice": "Justice should be tempered with

mercy" and Jesus Christ: "They know not what they do. Forgive them."

23. In the words of George Bernard Shaw "If you are to punish a man

retributively, you must injure him. If you are to reform him, you must

improve him and men, are not improved by injuries." Modern penologists

hold the view that punishment should not necessarily be „retributory‟ and

„deterrent‟ but should be „rehabilitative‟. Hegel, a German Philosopher in

his theory on Punishment asserts that "object of punishment is to make the

criminal repent his crime, and by doing so to realize his moral character,

which has been temporarily obscured by his wrong action, but which is his

deepest and truest nature." Justice Krishna Iyer in Mohammad Giasuddin

Vs. State of Andhra Pradesh (1977) 3 SCC 287 emphasized "The sub-

culture that leads to anti-social behaviour has to be countered not by undue

cruelty but by reculturisation."

24. The Supreme Court in Divisional Controller N.E.K.R.T.C. Vs. H.

Amaresh AIR 2006 SC 2730 and UPSRTC Vs. Vinod Kumar (2008) 1 SCC

115 has held that the punishment should always be proportionate to the

gravity of the misconduct and the High Court under Article 226 gets

jurisdiction to interfere with the punishment only when it finds that the

punishment imposed is shockingly disproportionate to the charges proved.

25. The Supreme Court in Shailesh Jasvantbhai Vs. State of Gujarat

(2006) 2 SCC 359 faced with the task of balancing of the sentences with the

offences quoted Dennis Councle McGautha Vs. State of Callifornia 402

US 18,3 that no formula of a foolproof nature is possible that would provide

a reasonable criterion in determining a just and appropriate punishment in

the infinite variety of circumstances that may affect the gravity of the crime.

In the absence of any foolproof formula which may provide any basis for

reasonable criteria to correctly assess various circumstances germane to the

consideration of gravity of crime, the discretionary judgment in the facts of

each case, is the only way in which such judgment may be equitably

distinguished.

26. This Court is of the view that the duty thrust upon it is to nurture the

career of the petitioners and not to damage the same.

27. I have perused the contents of the FIR against the petitioners. The acts

of ragging indulged in by the petitioners though traumatic to a fresher, are

not found to be such so as to nip the career of the petitioners in the bud.

28. For the reasons aforesaid, I deemed it appropriate to mould the

administrative punishment to be meted out to the petitioners as under:-

(i) The punishment of expulsion from the Hostel of the respondent

no.2 College, would remain.

(ii) However, the punishment of expulsion from the respondent

no.2 College and consequent debarring from admission to any other

Institution is modified to that of rustication from the respondent no.2

College for the academic session 2009-10. The petitioners would thus

be entitled to be readmitted to the respondent no.2 Kirori Mal College

on complying with necessary formalities, in the final year of their

under-graduation course but subject to the conditions appearing

hereinafter. The respondent no.2 College to accordingly readmit the

petitioners.

(iii) The petitioners shall not visit the Hostel of the respondent no.2

College at any time.

(iv) The petitioners shall abide strictly by the rules of the

respondent no.2 College regarding attendance.

(v) The petitioners would be watched over by the respondents no.1

& 2 University and College authorities and are expected to and exhibit

exemplary behaviour. If it is found that the petitioners have indulged

in any misconduct towards the Faculty/members/Staff or any other

student of the University/College, the sentence meted out to the

petitioners can be varied again.

(vi) The respondents no.1 & 2 University and College to widely

publish the said conditions imposed on the petitioners by exhibiting

them on the notice board so that the student community in general is

aware that the punishment to the petitioners for having indulged in

ragging continues and it is not as if the petitioners have been let off

for the same.

(vii) The respondents no.1 & 2 University and College are given

liberty to approach this Court if of the view of the petitioners have

breached any of the conditions imposed upon them.

29. The writ petition is disposed of. The petitioners to pay costs of this

writ petition of Rs.25,000/- each to the respondents no.1 & 2; the costs be

paid before readmission as aforesaid to the final year.

RAJIV SAHAI ENDLAW (JUDGE) 8th September, 2010 bs