Ms.Flora Gupta vs Jawahar Lal Nehru University & ...
2012 Latest Caselaw 3920 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Date of Decision: 6.7.2012

+                      W.P.(C) No.5725/2008

Ms.Flora Gupta                                  ...      Petitioner

                                  versus

Jawahar Lal Nehru University & Ors.             ...      Respondents


Advocates who appeared in this case:

For the Petitioner        : Mr. Vishwendra Verma & Ms.Subhavna

For Respondents           : Mr. Vikram Nandrajog, Mr. Gagan Minocha
                            and Mr. Sushil Jaiswal


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

ANIL KUMAR, J.

1. The petitioner, who wanted to pursue her doctorate degree from

the session of 2007-08, had appeared for the Ph.D entrance

examination for the said period. She has sought quashing of alleged

Inquiry Committee report dated 7th March, 2008 and has also sought

quashing of office Order No. 08/CP/2008 based on said enquiry report

whereby Vice Chancellor of Respondent no.1 in exercise of power vested

in him under Statute 32 of the University has ordered that the entire

JNU campus is declared out of bounds for petitioner for five years and

debarring her from taking admission in any program of study of the

Respondent no.1 for next five academic years and any other actions of

the respondents based on the said report The petitioner has also sought

directions to the respondents to give her admission in the Ph.D

programme after providing her the fresh character certificate for the

term of 2003-05, during which the petitioner had completed her Master

of Science in Biotechnology.

2. Brief facts to comprehend the controversies are that the petitioner

was a student of M.Sc. Biotechnology in the academic session 2003-05.

She had passed her course of M.Sc. in Biotechnology in the year 2005

from the School of Biotechnology (SBT) of Jawahar Lal Nehru

University, New Delhi, respondent No.1.

3. After completing her M.Sc. in Biotechnology, the petitioner

wanted to pursue her doctorate during the session of 2007-08. The

petitioner, therefore, appeared for the Ph.D. entrance examination. The

petitioner contended that it was disclosed to her that she had been

successfully in the Ph.D. entrance examination.

4. The plea of the petitioner is that on 25th July, 2007 prior to

formal declaration of the results, she was called by Ms.Aparna Dixit,

Dean, School of Biotechnology, respondent no.2 to her office. On

reaching the office of Ms.Aparna Dixit, she found that two other

professors, namely, Mr.R.Bhatnagar and Mr.Uttam Pati were also

present there. The petitioner alleged that it was disclosed to her by the

respondent no.2 that she had got the first rank among the candidates

and had therefore, topped the merit list.

5. However, the petitioner contended that to her utter surprise,

despite securing a very high position in the examination, she was

pressurized, not to get herself registered. The petitioner further

disclosed that she was threatened by Ms.Aparna Dixit, respondent no.2

to write a letter addressed to her, incorporating a confession that she

had used unfair means during the Ph.D. entrance examination and

therefore, she would not want to pursue the Ph.D programme. The

petitioner also alleged that she had been threatened that her career

would be destroyed and that an inquiry would be set up and that

consequently she would be blacklisted from pursuing any career

throughout India.

6. The contention of the petitioner is that at that time she did not

succumb to the pressures of Ms.Aparna Dixit, respondent no.2.

However, thereafter, respondent no.2 became more abusive and

shouted at her and even pushed her on the chair, because of which the

petitioner even hurt her arm and became scared. The petitioner was

thereafter, confined to the room of respondent No.2 and she was further

threatened that if she did not write the confession that the examination

paper was leaked out to her, her image would be maligned by falsely

publicizing that the petitioner was having illicit sexual relations with

Professor Uttam Pati. The petitioner further alleged that when she still

refused to comply with respondent no.2‟s demands, she was locked into

the room and was not even given water or even allowed to go for nature

calls. The petitioner had also noticed that there were other persons

present near the door of the room in order to help respondent no.2 due

to which reason the petitioner got scared and thereafter, she wrote

whatsoever was dictated to her by Ms.Aparna Dixit under coercion and

pressure.

7. Thereafter, whatsoever was dictated by Ms.Aparna Dixit, was

written by the petitioner. Even after that respondent no.2 was not

satisfied with the same and therefore, asked the petitioner re-write it.

Respondent No.2, Ms.Aparna Dixit, thereafter directed Professor

R.Bhatnagar to dictate certain statements and coerced the petitioner to

write the same. Still not being satisfied with whatsoever was dictated by

respondent No.2, Ms.Aparna Dixit and Professor Bhatnagar, they again

wanted the petitioner to modify her alleged confession. The petitioner

however, declined to do so, due to which reason she was even slapped

by respondent no.2. Under these circumstances, left with no other

choice the petitioner again wrote whatsoever was dictated to her. On

account of this behavior and treatment meted to her as detailed, she

started weeping and pleaded with Ms.Aparna Dixit to let her go.

8. The petitioner alleged that ignoring her pleas, Ms.Aparna Dixit

and Professor Bhatnagar, dictated yet another, fourth letter as she

wasn‟t still satisfied by the third letter. Respondent No.2, Ms.Aparna

Dixit also stated at the time as under:

"YEH BAHUT DHEETH LADKI HAI SHAYAD ISKE PARIWAR VALE BHI AISE HAI. MUJHE TO LAGTA HAI KISI CHOTI JATI KI HAI TABHI TO PRESSURE MEI NAHI AA RAHI HAI. KAMINI YOU BITCH WRITE DOWN YOUR CONFESSION (Petitioner is very obstinate person like her other family member. I feel that she belongs to a lower castes and that‟s why she cannot be pressurized. Bitch, write down your confession)"

9. The alleged confessions/letters obtained from the petitioner in the

above noted circumstances are as under:-

FIRST "To, The Dean School of Biotechnology Jawaharlal Nehru University New Delhi-110067.

Dear Sir,

With regret I admit to having gained access to the entrance examination paper for the Ph.d entrance examination, 2007. And I request you not to take any action against me I assure you that I will not join if I will be selected.

                      Yours sincerely,
                     Flora Gupta                       Date: 25.7.07
                                                       Time: 6.50 pm


               SECOND

               To,

                     The Dean
                     School of Biotechnology
                     Jawaharlal Nehru University
                     JNU
                     N.D-110067.

               Dear Madam,

I got the Ph.D entrance examination on paper from the Sir room and I confess that I did that mistake.

Yours sincerely,

Flora Gupta Sd/-

Date: 25.7.07

THIRD To,

The Dean School of Biotechnology Jawaharlal Nehru University JNU N.D-110067.

Dear Madam,

I got the question papers from the Sir‟s room & practice for 1 hour & just wrote down the answers. And I confess that I did that mistake & feel sorry for that.

Yours sincerely,

Flora Gupta Sd/-

Date: 25.7.07

FOURTH To,

The Dean School of Biotechnology Jawaharlal Nehru University JNU N.D-110067.

Dear Sir,

I asked the sir that Ph.d entrance examination question paper, & he told me that it was in the table draw and I take it from there.

I confess that I did that mistake, and feel very sorry.

Please don‟t take any action against me.

Yours sincerely, Flora Gupta Date: 25.7.07"

10. The petitioner alleged that Ms.Aparna Dixit had told her that she

would burn the earlier three drafts and would keep only the last letter

written by her and thereafter, she started to tear down the earlier drafts

of the alleged confession letters and threw them into the trash.

Thereafter, the petitioner was allowed to leave the room around 9.00

pm.

11. According to the petitioner, on 25th July, 2007 as it had been very

late, she could not make any complaint with the Police, however, on

26th July, 2007 the very next day she went to the Police Station to file

the complaint. The result of the Ph.D entrance examination was also

declared on 26th July, 2007.

12. On 26th July, 2007, the petitioner also went to the office of Ms.

Aparna Dixit, respondent no.2 to give to her a letter retracting the

alleged confessions which were obtained from her under duress and

coercion, however, respondent No.2 tore her retraction letter and stated

angrily as under:-

"TUM APNI JID SE BAAJ NAHI AAEE AUR PHIR AA GAI AB DEKHTI HU KI TUMHAE ENQUIRY COMMISSION SE KAUN BACHATA HAI. AB MEI TUMARA SARA CAREER AUR ZINDAGI TABAH KAR DUNGI"

13. The petitioner, thereafter, narrated the incident to her parents,

pursuant to which her father wrote a letter dated 29th July, 2007 to Mr.

Kumar Adhikari, Rector-II, JNU. Another letter was written on 30th

July, 2007 in respect of the whole episode, however, the petitioner was

not allowed to register herself for the Ph.D. programme although she

had topped the entrance examination.

14. The petitioner had also applied for the character certificate for the

period of 2003-05 by letter dated 11th October, 2007 to Ms.Aparna

Dixit, during which period she had completed her M.Sc. in

Biotechnology. As the character certificate was not given to the

petitioner, another request was made on 17th October, 2007. However,

without disclosing any reason the character certificate for 2003-05 was

not issued to the petitioner, because of which reason the petitioner,

thereafter, again made another request on 11th January, 2008. As

Ms.Aparna Dixit was persistently declining to give the character

certificate to the petitioner, a request was even sent to the Vice

Chancellor of respondent No.1 on 13th February, 2008 and thereafter,

another request was made on 15th March, 2008. On failing to get a

character certificate without any cause or reason, the petitioner

ultimately sent a legal notice dated 7th April, 2008. The communication

requesting the character certificate and also the legal notice demanding

the character certificate was not replied to by the respondents. The

petitioner contended that thereafter, she got a character certificate

dated 9th April, 2008 incorporating that an Inquiry Committee has been

set up against the petitioner and that the report of the Inquiry

committee is awaited.

15. The petitioner further disclosed that she had been informed on

11th January, 2008 about the single member inquiry committee

comprising of Professor Rameshwar Singh, respondent No.3 being

constituted by the Vice Chancellor of respondent No.1 against the

selection of the petitioner in the Ph.D Programme. The letter dated 11th

January, 2008 intimating the petitioner about the appointment of a one

member inquiry committee and directing her to appear before the said

committee so that the member of the committee could talk to her and

record her statement is as under:-

"PROFESSOR RAMESHWAR SINGH ENQUIRY COMMITTEE

11TH January, 2008

The undersigned has been appointed by the Vice- Chancellor, JNU as One-member Enquiry Committee to look into the matter (issue) of selection of two candidates in Pre-Ph.D. programme of the School of Biotechnology in which the candidates allegedly appeared to have had prior access to the question papers of entrance examination. The enquiry is to ascertain the correct facts relating to the said matter in the contest of deliberations done by faculty and statements/representations made by candidates.

The undersigned would like to talk to the concerned persons and record their statements to ascertain the facts of the matter. Since your name appears in statements/proceedings on record concerning this matter, I need to have a talk with you and record your statement.

I request you to please come to Room No.026, Administrative Block, JNU at 3.30 p.m. on 17th January, 2008.

(RAMESHWAR SINGH) Enquiry Officer"

16. The petitioner averred that she was not given any

statements/documents or any material relied on by respondent No.2 on

the basis of which, the single member inquiry committee was

appointed. She contended that nothing was disclosed to her on the

basis of one member committee was constituted, however, she filed

some relevant documents substantiating her innocence on 17th

January, 2008.

17. On 7th February, 2008, the petitioner even sought information

about the findings of the one man inquiry committee under the

provisions of the Right to Information Act. Consequent to her request

dated 7th February, 2008, the petitioner received a reply by

communication dated 7th March, 2008 intimating her that any

information which is not in existence or is not held by the public

authority cannot be supplied for the reason that it is not available and

therefore, the information sought by her cannot be supplied as

respondent No.1 does not have any information about the inquiry report

from the inquiry officer, Professor Rameshwar Singh, respondent No.3.

18. The petitioner had also sought a copy of the order constituting

the single member inquiry committee by her letter dated 14th February,

2008. Subsequently she was intimated by letter dated 3rd April, 2008

indicating that the information sought by her has been received and

duly enclosed with the said letter.

19. Aggrieved by the non-supply of the information regarding the

enquiry report sought by the petitioner, she filed an appeal, which was

however, disposed of by order dated 6th May, 2008. The order

categorically stated that the concerned department had intimated that

the information sought by the petitioner is not available with them

which fact had already been disclosed to the petitioner by letter dated

7th March, 2008. The order further stipulated that though later on, the

information was received from the concerned department, however, as

the final action on the inquiry committee report had not yet been taken,

therefore, the information is not ripe for disclosure and so it is to be

exempted under Section 8(1)(h) of the Right to Information Act, 2005.

Relevant extract of the order dated 6th May, 2008 is as under:-

"It was explained to the Appellant that information sought by her regarding a copy of the Inquiry Report was ascertained from the concerned Deptts in the University. However, since the concerned Deptts. have intimated that no such information is available with them, about which the Appellant has been duly informed vide letter dated 7.3.2008. However, the appellant requested that perhaps the Inquiry Officer, Professor Rameshwar Singh, may be contacted by the dealing office to ascertain the status of the Inquiry Report. She further requests that the O/O the Vice- Chancellor/Rectors/Coordinator may also be contacted once again if they have received the Inquiry Committee Report. It was agreed that after this the Appellant may be informed about the outcome of the efforts, as aforesaid.

Subsequently, before this Order could be issued, the concerned Deptts. informed that although the Inquiry Report has been received, but final action on the inquiry Committee Report is not yet taken, i.e. Inquiry Report is still under the consideration of the University. Therefore, in my view, the information since not ripe for disclosure at this premature-stage, the same is exempt under Section 8(1)(h), which is reproduced below:

Section 8: Exemption from disclosure of information

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give citizen:-

(h) Information which would impede the process of investigation or apprehension or prosecution of offenders."

20. The grievance of the petitioner is that though the single member

commission had already given its report dated 7th March, 2008,

however, the same was not given to her despite repeated pleas.

Consequently, the petitioner was left with no option but to file a

criminal complaint against Ms.Aparna Dixit, which the petitioner

contends is pending before the court of Sh. Sameer Vajpayee,

Metropolitan Magistrate. In the complaint filed before the metropolitan

magistrate, a copy of the report dated 7th March, 2008 was also filed on

3rd July, 2008.

21. Impugning the inquiry report dated 7th March, 2008, the

petitioner has contended that the inquiry officer had relied on certain

documents detailed in the report, the copy of which were not supplied

to her. The documents referred to and relied on by the one member

inquiry committee are as under:-

"ENQUIRY REPORT

With the Office Order appointing me as Enquiry Officer, I was provided the following "documents (photostat copies)".

1. A letter, dated July 30, 2007, from the Dean Prof. Aparna Dixit, addressed to the JNU Vice Chancellor, which contained detailed information about as to how the concerned matter was dealt with by the Faculty Committee etc. The letter also made a request to set up an inquiry to look into the matter.

2. Minutes of the Faculty Meeting held on July 25, 2007. In their deliberations, the faculty discussed the matter of very high marks scored by the two candidates in JNU Entrance Examination of 2007, and had decided: not to withhold the declaration of entrance examination results and that the matter should be investigated.

3. Four different statements of Ms.Gargi Roy, which she wrote on 25th July, 2007 during 6.40 pm to 7.45 p.m. In these, she revealed how she gained access to the entrance examination question paper. The statements were addressed to the Dean, School of Biotechnology.

4. Four different statements of Ms.Flora Gupta, which she wrote on 25th July, 2007 at 6.50 p.m. onwards. In these statements, she revealed how she got access to the examination paper etc. The statements were addressed to the Dean, School of Biotechnology.

5. Letter dated 25.07.2007 addressed by Ms.Flora Gupta to Prof. Uttam K.Pati. In this letter, she talks of pressure etc. put on her to write confessional statements, and further stated that none of the statements were true.

6. Minutes of the Faculty Meeting held on July 27, 2007. In their deliberations, the faculty seem to have discussed the concerned matter in great details, and have talked to the two candidates.

7. A letter from Ms.Gargi Roy (dated 27.07.07) addressed to the Dean, School of Biotechnology in which she stated that "the statements" were dictated, and she was retracting them etc."

22. The petitioner also referred to the categorical observation made in

the enquiry commission report indicating that Professor Uttam Pati had

stated that the petitioner had not written the statement on her own and

that the text written in the confessional statement was entirely the

product of the Professor Bhatnagar and Ms.Aparna Dixit, respondent

No.2. The relevant observations made in the inquiry report dated 7th

March, 2008 are as under:-

"To look into the matter, I felt it necessary to talk to the Faculty members of the School of Biotechnology, as they at one stage or the other had dealt with the matter. It was in the presence of three faculty members, i.e., Prof. Aparna Dixit, Prof. Uttam Pati and Prof.Rakesh Bhatnagar, that the two (Flora Gupta and Gargi) wrote their „confessional‟ statements. Thereafter, a full fledged Faculty Meeting took place and deliberated over the matter.

I, therefore, talked to the Faculty of the School of Biotechnology and recorded their statements. I also talked to the two candidates: Ms.Flora Gupta and Ms.Gargi Roy and took their statements on record.

In their testimony (deposition) before me, the two: Flora Gupta and Gargi Roy admitted that they wrote their statements when Professors Dixit, Uttam Pati and Rakesh Bhatnagar were present, and these statements are on record. Four statements were written by each one of them in a span of about an hour. A close perusal of these statements would show that the first statements of the two were „Identical‟ to each other (only there is a minor difference in the last few words of Flora Gupta‟s statement). They admitted that they had gained "access" to the entrance examination paper, requested not to take any action against them, and assured that they would not join if selected. Gargi Roy wrote at 6.40 p.m. and Flora Gupta at 6.50 p.m. It, therefore, appears that the latter "copied" from

the text of the former‟s statement.

It seems that when they (i.e. the two girls) were grilled/probed further as to how they obtained access to the question paper, they wrote their second statements which were "not identical": Gargi wrote "regret and confess and Flora wrote that "I got the Ph.D. entrance examination paper from the Sir room- I confess that I did that mistake.

On further probing, they responded by giving other two statements which were not identical to each other‟s. However, both of them revealed one common thing, that is, "they got the question papers from their guides" „Sir‟s room, and Flora, in addition, wrote that "she wrote answers and practiced for one hour". On still further probing, they again wrote statements (one each) which were not identical to each other‟s. But these statements have a common point that they (the two) asked "guide" "Sir" about examination- examination paper and they were helped by him in getting the access" etc.

In all, each one of the two wrote four written statements and handed them to the Dean Prof. Aparna Dixit in the presence of Prof. Rakesh Bhatnagar and Prof. Uttam Pati.

Prof. Uttam Pati, in his testimony before me, claimed that he did not open his mouth during this meeting in which the two girls were questioned, and all the questioning was done by Prof. Dixit and Prof. Bhatnagar only. Prof.Uttam Pati further claimed that the text of the statements the girls wrote was dictated by Prof. Bhatnagar and Prof. Dixit implying that the two girls on their own did not write the statements, and the text written in the said statements "is entirely the product of Prof. Bhatnagar‟s and Prof. Dixit‟s mind."

The two candidates after having given their statements on 25th July, 2007 came up with letters which they claim to be their „retraction‟ letters in which they have "retracted" from their earlier statements. Flora Gupta addressed her retraction letter (dated 25.07.07) to Prof.Pati and a copy of was endorsed to the President Student‟s Union. In this letter she says none of the statements given by her were "true", and the statements were taken under threat etc. Flora Gupta then addressed a „retraction‟ letter

to Rector-II on July 30, 2007 in which she alleged that her confession letters were dictations given by the Dean. Flora Gupta‟s father has also sent a letter to JNU VC claiming essentially that his daughter was harassed and inappropriately treated etc."

23. The inquiry committee report dated 7th March, 2008 also

discussed about the recorded statements of Professor S.K.Kar, Dr.Rajiv

Bhat, Dr.S.Maitra, Dr.D.Choudhury and Dr.K.J.Mukherjee as well as

the retraction letter produced by Professor Uttam Pati given by the

petitioner dated 25th July, 2007 which was produced in the meeting on

27th July, 2007.

24. The single member committee however rejected the retraction

letter given by the petitioner on the ground that it was dropped into the

mail box of Professor Uttam Pati and that said the retraction letter was

clearly an afterthoughts and thus it does not deserve any credence. The

relevant portion of the reasoning given in the inquiry committee report

is as under:-

"It is also instructive to note that the „retraction‟ statement written by Flora Gupta was addressed to Prof. Pati and was dropped into his mail box, and Prof. Pati brings it to the notice of the Faculty Committee only when the matter had already been discussed and deliberated for quite sometime. This also cannot be ignored that Professor Pati did not bring to the attention of the Faculty Committee that "the statements which are being attributed to the two girls" are dictions by the two Professors because the Faculty Committee was deciding to ask for an enquiry or as such

was dealing with the matter largely and substantially on the basis of their confessional statements. Furthermore, it is also of great interest that in those statements Prof. Pati had been referred to as "Sir (and he admits "Sir" refers to him)- even then before the Faculty Committee he does not disclose "that the statements are the result of dictations". In response to the interrogation by Prof. Dixit and Prof. Bhatnagar aimed at finding out whether the two candidates (Ms. Flora Gupta and Ms.Gargi Roy adopted some unfair means n the examination or have had access to the question papers prior to the examination, Flora Gupta and Gargi Roy wrote their separate statements in which they said they had access to the question paper (prior to the entrance exam), and briefly also outlined how they got the access. Their statements reveal they sought help from their teacher (Prof. Pati) for preparing for the entrance examination of JNU. The teacher responded by making it convenient for them to go through the copy of the concerned question paper. This could be possible because Prof. Pati had set (compiled) the question paper. So the "access" came to them (the two candidates), they did not indulge in some unfair activity to obtain it.

In view of this my conclusion is that these theories of "retraction" "dictations" are simply after thoughts and command no credence/credibility, and the statements which the two candidates Flora Gupta and Gargi wrote were not the product of dictions but of whatever they could truthfully write at that point of time, and certainly reveal a substantial part of the truth of the matter i.e. they did not have an access to the paper and that "access" was provided to them in Prof. Pati‟s room. Prof. Pati‟s assertion, as I have discussed above would command no credence. He in his written deposition before me talks of that nobody else knew the question paper. But he wholly ignores, that the point here is not that nobody else knew the question paper after he has compiled it, the crux of the matter was whether he made it known to the two candidates. His implied silence on this despite the reference to "Sir‟s Room" etc in the 25.07.07 statements (of the two candidates) is indeed intriguing, and his taking shelter behind the wholly untenable "theory of dictions" demolishes his innocence in the matter, thus it is not possible to exonerate him because of his plea that "statements" were dictated.

Therefore, I conclude that it is beyond any reasonable doubt that the two candidates did have access to the question paper prior to the entrance examination and the bits of how they came to have that access are also clear in the discussion above in this report."

25. The petitioner was, thereafter given a show cause notice dated

15th July, 2008 stipulating as to why disciplinary action should not be

taken against her. The petitioner replied to the show cause notice by

reply dated 18th July, 2008 contending, inter-alia, that she cannot

comprehend as to on what grounds the single member inquiry

committee had arrived at the conclusion that she had access to the

examination paper and that she is also unable to answer the allegation

against her as inquiry committee report dated 7th March, 2008 was not

given to her. The petitioner, therefore, sought to be provided with the

complete inquiry report including all the relevant documents.

26. The respondents refuted the pleas and contentions raised by the

petitioner and filed the counter affidavit dated 1st November, 2008

contending, inter-alia that no cause of action had arisen in favor of the

petitioner to file the present writ petition. According to the respondents

the petitioner is guilty of gross misconduct as she had obtained illegal

access to the Ph.D. entrance examination paper of the School of

Biotechnology, JNU and had thereafter appeared for the same. Since

the petitioner had answered the said examination (Theory/written part)

after having prior access to the question paper, had obtained

exceptionally high marks i.e. 58 ½ out of 70 in the written examination.

As a result of the manipulation done by the petitioner it was contended

that her examination result was vitiated.

27. According to the respondents, the faculty of the School of

Biotechnology, JNU considered the matter and forwarded it to the Vice

Chancellor of JNU who appointed a one man inquiry committee

comprising of Prof. Rameshwar Singh, Respondent no.3 who enquired

into the matter and submitted his report on 7th March, 2007 giving the

finding that the petitioner had prior access to the question paper. The

said report had been accepted by the Vice Chancellor of JNU pursuant

to which the order dated 5th August, 2008 was passed whereby the Vice

Chancellor exercised the power vested in him under Statue 32 of the

Statutes of the University under The Jawahar Lal Nehru University Act,

1966 whereby he ordered that the entire JNU Campus would be out of

bounds for the petitioner for five years with immediate effect and that

she would also be debarred from taking admission in any program of

study of the JNU for the next five academic years. It was also ordered

that anyone who would give shelter to the petitioner in any of the

premises of the University would invite strict disciplinary action against

him/her.

28. The respondents denied that the petitioner was a brilliant student

who topped the Ph.D. entrance examination of School of Biotechnology,

JNU. It was also categorically denied that she was forced to write the

confession by respondent No.2 and was prevented for enrolling for the

Ph.D. program so as to make the seat available for another student.

29. The respondents averred that the allegations made in the writ

petition are baseless and have been made with the malafide intention of

somehow deflecting the attention from the manipulation/illegality done

by the petitioner. Regarding the petitioner, the respondents further

asserted that after doing her M.Sc. in the year 2005 from the School of

Biotechnology, JNU, she did not join any course. In her M.Sc. course,

the petitioner was placed at the ranking of 12 in the batch of 14

students and that she had secured a cumulative grade point average

(CGPA) of 5.18 out of 9 and thus, barely qualified for writing the Ph.D.

entrance test. The respondents also disclosed that the petitioner had

failed to clear the Ph.D. entrance exam of JNU in the year 2005 and

2006.

30. According to the respondents, after qualifying the M.Sc. in

Biotechnology in the year 2005, the petitioner had been working as a

Junior Research Fellow (JRF) with Prof. Uttam Pati, who was the Dean

of the School of Biotechnology before Ms.Aparan Dixit, who took over as

Dean on 25th April, 2007. The respondents further disclosed that the

theory question paper of the Ph.D. entrance exam for the year 2007 was

compiled by and typed out under the supervision of Prof. Uttam Pati.

According to the respondents, the petitioner and another candidate, Ms

Gargi Roy, who was also working as a Junior Research Fellow, had

managed to secure access to the question papers of the Ph.D. entrance

exam and both of them had obtained very high marks which aroused

the suspicion of the faculty members of the School of Biotechnology.

According to the respondents, the petitioner had confessed on her own

that she adopted illegal and unlawful means and wrote the same in her

confession dated 25th July, 2007. The respondents also averred that the

petitioner had never complained to the police at the said point of time

that she had allegedly been forced to write the confession, nor had she

made any complaint to the higher police authority against the non-

recording of her complaint at the concerned police station as alleged by

her.

31. Regarding the character certificate, the respondents have

contended that the character certificate was sought with the intention

of diverting the attention from her own wrong doings and that it was

pertinent to note that the petitioner did not seek the character

certificate from her project supervisor Prof. Uttam Pati and instead

insisted the same from Ms.Aparna Dixit, Dean of the School of

Biotechnology, who regardless had issued the character certificate

dated 9th April, 2008 after obtaining the approval from the Rector-II,

JNU. Since the inquiry report dated 7th March, 2008 had been

submitted by respondent No.3 affirming the fact that the petitioner had

prior access to the question paper, therefore, it was endorsed on the

character certificate as well.

32. The respondents, however, admitted that the petitioner had filed

a criminal complaint dated 26th May, 2008 against Ms.Aparna Dixit

before the ACMM, Patiala House Court in which the police was directed

to investigate the allegations and submit a status report. The police had

thereafter, filed a status report stipulating that the allegations made by

the petitioner were not true.

33. According to the respondents, subsequently a show cause notice

dated 15th July, 2008 was issued against the petitioner stipulating as to

why disciplinary action should not be taken against her. The

respondents also contended that the petitioner has not come with clean

hand on the issue as she has not denied that she did not have prior

access to the question paper. According to the respondents, she has set

up a baseless and false story with a view to escape the consequences of

her own deeds. The respondents also disclosed that the criminal

complaint dated 26th May, 2008 was filed by the petitioner under

Sections 348/323/506/469/327/330/342 of Indian Penal Code against

Ms.Aparna Dixit, whereas the incident complained of had taken place

on 25th July, 2007. Thus for almost 10 months she had not made any

complaints to the police in relation to the alleged incident of Ms.Aparna

Dixit having obtained the confession from the petitioner under duress

and coercion. The respondents asserted that the plea of the petitioner

that the police did not register her complaint is negated by the fact that

she did not make any complaint to the higher police authorities

regarding the non-recording her complaint in the said police station.

The respondents also placed reliance on the status report dated 2nd

July, 2008 filed by the police before the Metropolitan Magistrate stating

that upon inquiry none of the allegations made by the petitioner could

be substantiated.

34. Regarding the appointment of the petitioner as a Junior Research

Fellow (JRF), it was averred that she was appointed for the period 31st

July, 2005 till 31st October, 2005 on the specific request of Prof. Uttam

Pati. Her appointment as JRF was thereafter extended in the project

titled as "Co-relation of P53....Cells" from 31st October, 2005 till 30th

October, 2006. The appointment was further extended till 31st March,

2007 and thereafter again extended from April to June, 2007.

35. The petitioner was also given appointment in the project titled as,

„Suppression of Oral-Cancer specific p53 mutants by SIRANA‟ from 1st

July, 2007 to 30th September, 2007 and extended to 30th September,

2008. It was also disclosed that till the date of filing the counter

affidavit on 1st November, 2008 the petitioner has continued to work

with Prof. Uttam Pati in the said project.

36. Regarding the question paper in which the petitioner is alleged to

have scored very high marks on account of allegedly having prior access

to said the question paper, it was disclosed that the written

examination has both basic and applied questions from different

disciples of sciences i.e. physics, mathematics, biology, chemistry and

modern biological sciences and that the answer sheets of the written

examination are evaluated by computer. However, the candidates never

score such high marks as were obtained by the petitioner and Ms. Gargi

Roy in the written examination. It was further alleged that the

candidates majoring in physical sciences (mathematics, physics &

chemistry) are able to answer the applied questions related to these

fields whereas the candidates majoring in Biological sciences

(biochemistry, Biotechnology & Biology) are able to answer applied

questions from these subjects/areas. The respondents also relied on the

comparison of the petitioner‟s marks in the examination for the year

2005-2006, 2006- 2007 & 2007- 2008 in her attempts at the Ph. D.

Entrance exams. The comparison of the marks as given by the

respondents is as under:-

Ph.D Examination for Examination for Examination for entrance admission in the admission in the admission in the examination for Acad.Year 2005- Acad.Year 2006- Acad.Year 2007-

admission in the       2006 (held in      2007 (held in      2008 (held in
Ph.D                   May 2006)          May 2006)          May 2007)
programme of

                       Flora Gupta        Flora Gupta        Flora Gupta

School of          Life 11.00             11.00              18.50
Sciences

School        of 03.00                    20.50              58.50
Biotechnology

Special Centre 25.50                      14.50              15.50
of     Molecular
Medicine

37. The respondents also asserted that in the viva voce, the petitioner

had failed to answer the questions from the basic sciences on the

pretext that she had studied the same three years ago. Thereafter, the

petitioner was posed the questions relating to her project where she has

been working since 2005 with Prof. Uttam Pati and the answers given

by the petitioner were endorsed to be correct by Prof. Uttam Pati.

According to the respondents, in the meeting of the faculty which was

attended by 7 faculty members, it was decided to probe into the matter

and to withhold the result of the Ph.D. entrance examination. The

petitioner was then called on 25th July, 2007 and was questioned by

Ms.Aparna Dixit, Prof. Uttam Pati and Prof. R.Bhatnagar after which

the petitioner confessed to have adopted illegal means. According to the

respondents, the confessions were given by the petitioner in the

presence of three members, Ms.Aparna Dixit, Prof. Uttam Pati and Prof.

R.Bhatnagar in a fair and transparent manner without any threat or

coercion to the petitioner. The allegation of the petitioner being abused

and physically injured by Ms.Aparna Dixit was specifically denied. It

was also denied that the alleged confessions were written by the

petitioner at the instance and on account of the coercion by respondent

No.2 so that she could secure one seat of the Ph.D. program for another

student. The allegation that the petitioner had written the retraction

letter to the respondent No.2 was not admitted and according to the

respondents, she did not report her alleged version to any other

authority in JNU as well.

38. The respondents further disclosed that the matter was considered

in the subsequent meeting held on 27th July, 2007 which was attended

by 8 faculty members and it was unanimously decided to refer the

matter to the administration to carry out the investigation. The minutes

of the meeting dated 27th July, 2007 were forwarded to the Vice

Chancellor of JNU by letter dated 30th July, 2007 and on the orders of

the Vice Chancellor, respondent No.3, Prof. Rameshwar Singh was

appointed as the one man inquiry committee to enquire into the matter.

39. The respondents also disclosed that a show cause notice dated

24th July, 2008 was issued to Prof. Uttam Pati and the Executive

Council of JNU in its meeting held on 3rd September, 2008 has decided

to authorized the Vice Chancellor, JNU to constitute a full Inquiry

Committee to investigate the matter as regards Prof. Uttam Pati and his

involvement in the present matter.

40. Regarding the inquiry conducted by Prof. Rameshwar Singh and

the plea taken by the petitioner that she was not allowed to cross-

examination the witness nor the witnesses were recorded in her

presence, it was asserted that no witnesses as such were examined

in the inquiry. According to the respondents, this was neither a Govt.

departmental inquiry, nor was it subjected to any rigid rules as to

cross-examine etc. and that the inquiry in any case meets the

requirements of the principles of natural justice and thus, is valid and

proper. The grounds as taken in para O-Q of the counter affidavit dated

1st November, 2008 are as under:-

"That the contents of grounds O to Q are wrong and are denied. It is denied that the petitioner did not have sufficient time to file her defense. There was no occasion for cross examination as no witnesses as such were examined in the inquiry. The inquiry in question is not a

government departmental inquiry nor is subject to rigid rules as to cross examination etc. The inquiry meets the requirements of the principles of natural justice and is valid and proper. It is denied that the inquiry report is based on frivolous ground."

41. Respondents also contended that the case of the petitioner is not

that of no notice/no hearing but may be a case of inadequate hearing

and relied on (1996) 3 SCC 364, State Bank of Patiala & Ors. v.

S.K.Sharma and 19 (2001) DLT 735, Mansoor Azam v. Jamia Milia

Islamia & Ors. It is contended that the case of the petitioner is not of no

notice or no hearing as the petitioner was given notice of the inquiry

proceedings and she has been given an opportunity to state her case

before the inquiry officer and before passing the order of debarment for

five years, she was given a show cause notice and the documents as

demanded by her were given to her. The petitioner too had submitted

her reply, therefore, no prejudice has been caused to the petitioner by

the procedure followed and the inquiry held was fair and the order of

debarment and punishment is therefore, not vitiated. The respondents

also contended that circumstantial evidence against the petitioner and

her subsequent conduct point to her guilt and that she herself was

unable to give any cogent explanation when she was called on 25th July,

2007, which is why she had written the confession willfully and without

any coercion or pressure. Regarding the alleged retraction, it was stated

that it was an act of afterthought. The respondents also emphasized

that the petitioner never stake any claim to secure admission to the

Ph.D. course which fact in itself inculpates the petitioner. The

respondents refuted the plea of the petitioner regarding the inquiry not

being conducted under the ordinance of JNU on the ground that she

was not a student of JNU. As it is contended that „student‟ under the

ordinance contemplates a student on the active roll of the University. It

was further contended that in the circumstances, inquiry could not be

held under the ordinance of JNU, since the petitioner had merely

appeared in the entrance examination to secure admission in the

course. Thus, no formal rules of inquiry were applicable and what was

required was a fair hearing to the petitioner which has been complied

with. The respondents justified the action against the petitioner under

Statue 32 of the JNU and contended that it was a valid, legal and

justified action as it was taken by the Vice Chancellor of JNU and not

by any junior official. The respondents also relied on (1993) Supp. 3

SCC, 82, Controller of Examination & Ors. v. G.S.Sunder & Ors. and

(2009) 1 SCC, Director (Studies), Dr.Ambedkar Institute of Hotel

Management, Nutrition and Catering Technology, Chandigarh & Ors. v.

Vaibhav Singh Chauhan to contend that since the matter of the

petitioner relates to the enforcement of discipline, the Court should be

slow in interfering. Reliance was also placed on 70 (1997) DLT 509,

Narendra Singh v. University of Delhi & Ors., wherein according to the

respondents, the action against the student of Delhi University was

upheld even though it was without a formal inquiry. The respondents

contended that the provisions of the Delhi University are pari-materia to

Statue 32 of the Statue of JNU. The respondents asserted that the

petitioner has not challenged the Statue 32 of JNU and that the action

taken against the petitioner is therefore, entitled to be upheld.

42. Relying on (1996) 9 SCC, 322, State of Punjab & Ors. v.

Dr.Harbhajan Singh Grisy, the respondents further contended that if

there is any flaw in the procedure adopted by the respondents then the

matter should be remanded back for rehearing/proceeding from the

point when the flaw had occurred.

43. The petitioner refuted the allegations made by the respondents

against her in their counter affidavit and filed a rejoinder affidavit dated

4th December, 2008. The petitioner challenged the appointment of

respondent No.3 as the one man committee relying on the letter dated

9th March, 2002 of the University Grants Commission stipulating that

no retired teacher after the age of 62 years could be appointed on any

Statutory or even non-statutory position in the University/Colleges.

Letter dated 9th March, 2012 of the University Grant Commission is as

under:-

"March, 2002 Dear Sir/Madam,

It has been brought to the notice of UGC that some of the Universities are appointing retired teachers to the

statutory and non-statutory bodies of the University. The matter has been examined by the UGC and it is decided that no retired teachers after the age of 62 years be appointed on any statutory or even non-statutory position in Universities/Colleges.

This is for your information and necessary action."

44. The petitioner refuted the claim of the respondents that she had

failed to answer the questions regarding the basic science by

contending that she had been awarded 25 marks out of 30 in the viva

voce which marks were confirmed to her pursuant to the petitioner

seeking the information in the application dated 8th November, 2011

under the Right to Information Act, 2005. She further disclosed that the

said Viva Voce had been taken by 5 professors of the JNU, in a face to

face discussion and thus there was no possibility of cheating at the

time.

45. The petitioner has relied on Harpal Singh Sangwal v. University of

Delhi & Ors., 2008 VIII AD (Delhi) 494; Sibaram Panda & Ors. v.

Collector, Cuttack & Ors., AIR 1982 Orissa 117; Sunil Kant v. The

Kurukshetra University & Ors., AIR 1977, Punjab & Harayana 37;

Neha Jain v. University of Delhi & Anr., AIR 2002 Delhi 403; K.Santha

Kumari & Anr. v. Sri Krishnadave Raya University & Anr., AIR 1997,

Andhra Pradesh 72; D.T.C. v. Shyam Lal, AIR 2004 SC 4271; Amit

Kumar Bashista v. Jamia Millia Islamia University & Ors., 2003 VII AD

(Delhi) 377; Nagarjuna Construction Co. Ltd. v. Govt. of Andhra

Pradesh & Ors., 2009 II AD (S.C.) 139, Roop Singh Negi v. Punjab

National Bank & Ors., 2009 II AD(S.C.) 177 and Gopal Sah v. State of

Bihar, 2008 Suppl. I AD (S.C.) 1.

46. This court has heard the learned counsel for the parties and have

also perused various documents filed along with the writ petition and

with the counter affidavit. Though specific allegations have been made

against respondent no. 2, however, no affidavit of respondent no. 2 has

been filed by the respondents. The parties have referred to various

precedents and in the facts and circumstances it will be appropriate to

first consider the precedents relied on by the parties.

47. In Harpal Singh Sangwal (supra), the candidate had appeared in

the entrance examination for the post of graduate course in Hindi

Journalism. When the result was declared and the names of the

successful candidates were revealed, it was realized by the petitioner

that his name had been initially displayed, but subsequently the said

list was substituted with another list which did not include his name.

Thereafter, the candidate received a notification that on account of his

misbehavior and acts of indiscipline as a student of M.A. in Russian

Studies, University of Delhi and in exercise of the power vested under

the Ordinance XV-B and in order to maintain the discipline, it was

decided not to admit him in any course in the University of Delhi for a

period of next five years. The candidate had challenged the action of

the University in not admitting him to any course by filing a writ

petition before the Delhi High Court. During the pendency of the

petition, the University had issued a notification that the competent

authority had decided to grant post decisional hearing to the candidate

and had accordingly constituted a committee to look into the complaint

against the candidate. The complaints against the petitioner were given

by the committee and the candidate also filed his replies. A report

prepared by the committee was also given to the candidate, which was

also replied to by the candidate and thereafter, the Vice Chancellor after

considering the report of the Inquiry Committee, concluded that the

response of the candidate was unsatisfactory and unacceptable and

that thus there was no ground to review the decision not to admit the

petitioner in any course in the University of Delhi for the next five years.

The candidate had also challenged the subsequent order passed by the

Vice Chancellor on the ground that in a matter like his, a post

decisional hearing could not be an adequate substitute and that the

decision taken to debar him from admissions to any course in the

University was in complete violation of the principles of natural justice.

On behalf of the University, the plea was taken that during the

admission to the course of Hindi Journalism, the petitioner had

appeared in the entrance examination and that at the time he had

already completed hid M.A. Russian Language and hence he was not a

student of the University. However the single bench of this Court had

repelled the plea that since the petitioner was not a student, a proper

inquiry was not to be constituted on the ground that whether the

candidate was a student or not, the principle of natural justice had to

be adhered to and thus in the facts and circumstances, it was held that

the principles of natural justice had been violated. Referring to

Ordinance XV-B of the Delhi University, the Court held that though it

does not provide the procedure to conduct the inquiry, however, the

inquiry had to be conducted in compliance with the basic principles of

natural justice and consequently, the post decisional hearing after the

impugned notification and all the proceedings subsequent thereto were

quashed. The University was also directed to consider the entrance test

result of the candidate for the entrance examination for the current

academic year and to proceed to hold his interview for the admission to

the Hindi Journalism Post Graduate Course for the ensuing year.

Considering the facts and circumstances whereby the candidate was

subjected to absolutely arbitrary and illegal acts on the part of the

respondents leading to the deprivation of the candidate‟s right to study

in the University for one year, the Court had also awarded a cost of Rs.

30,000/-.

48. In Sibaram Panda (supra), the transfer certificates were issued

against the students of the Orissa School of Engineering, Cuttack

compulsorily transferring them on account of their alleged misconduct

and indiscipline. Since some criminal cases were filed, the principal of

the college had treated the mere allegations as sufficient proof and

justification for the punitive action of issuing the compulsory transfer

certificates, which was done for the best interest of the institutions and

to control the law and order situation for the purpose of maintenance of

the discipline of the institution. Reliance was also placed on the

allegation made by the members of the staff and other students

regarding the highhanded action and misconduct of those candidates

who had been issued the compulsory transfer certificates. It was also

alleged that as the atmosphere of the institution was surcharged with

rowdiness, it was considered that issue of show cause would frustrate

the very purpose for which the action was proposed. The students who

had been issued compulsory transfer certificate had challenged the

action of the institution and the question for consideration before the

Court was whether the delinquents/students had been deprived of a

reasonable opportunity to show cause and if the rules of natural justice

have been violated. The Division Bench of the Orissa High Court had

held that the action of the institution in issuing the compulsory transfer

certificate was hit by the violation of principles of natural justice and

that such an action was not sustainable in law and thus was set aside.

49. The Division Bench of the Punjab High Court in Sunil Kant

(supra), relied on by the petitioner, had set aside the notification by the

University disqualifying a candidate from passing the examination on

the ground that the candidate was not supplied the material which was

intended to be used against him. The candidate in this case had

appeared in the pre-medical examination held in April/May, 1975.

When the candidate was doing his paper, the Superintendent of the

Examination had called him and told him that some printing papers

had been recovered by the members of the Flying Squad. The statement

of the candidate was recorded by the Superintendent, who had stated

that the papers were lying near his seat on the floor and that he was

busy doing his paper and had not taken any help from them. Those

papers lying on the floor were recovered by the Superintendent of

Examination, but nothing was recovered from the petitioner‟s

possession and he did not know as to who had thrown the papers as

well. In the facts and circumstances it was held by the Court that the

proceedings initiated by the Unfair Means Committee were vitiated

against the candidate, as he was not supplied with the material on

which the Unfair Means Committee had relied, nor was he given a copy

of the report of the Superintendent, or the statement of the members of

the Flying Squad or the printing material allegedly recovered from the

candidate. The Court had therefore, held that the notification

disqualifying the said candidate from passing the examination was in

violation of the principles of natural justice and thus had set aside the

same.

50. In Neha Jain (supra), relied on by the petitioner, a student had

made notes on the date sheet instead of the answer sheet and it was

found that the said notes were found to be relevant to only one question

in the question paper. The University of Delhi had imposed the

punishment of cancellation of the entire examination and had debarred

the candidate from appearing for any examination for 12 months. The

Court had held that the punishment imposed was disproportionate to

the alleged offence and that though the decision of the University that

the note on the date sheet was not permissible could not be

substituted, however, in the facts and circumstances, it was held that

punishment of cancellation of only the paper in question was adequate

and sufficient and consequently, the decision of the University to debar

the student for 12 months and cancelling her entire examination was

set aside.

51. In K.Santha Kumari & Anr. (supra), on the basis of probability

and circumstantial evidence, it was alleged by the Educational

Authority that the student had indulged in mass coping and

consequently the punishment of cancellation of examination and

debarring the candidate for taking next two examination was imposed.

The Court had held that a decision given in disregard to the principles

of natural justice is void and that a body with the power to decide,

cannot lawfully proceed to make a decision until it has afforded the

person affected an appropriate opportunity to state his case. The Court

had also held that though it is not within the purview of the Court to

substitute a decision taken by an administrative or quasi-judicial

authority simply because the decision sought to be substituted is a

better one. However, unless it is shown that the conclusion arrived at

by the authority suffers from want of evidence, breach of principles of

natural justice, unreasonableness, illegality, irrationality or perversity,

bad faith, they are not susceptible for interference under Article 226 of

the Constitution of India. In the circumstances, it was held that though

the charges of malpractice against the candidate about mass copying

was established, however, the punishment was modified to the

cancellation of the paper in which mass copying was alleged and the

candidates were allowed to appear in the ensuing examination, which

was to be conducted by the University.

52. In Amit Kumar Bashista (supra), in which the candidate was

denied admission on account of his alleged involvement in the serious

misconduct of manufacturing a fraudulent degree, the Court had

noticed that the candidate was only named in the FIR however, there

was nothing in the FIR to connect the candidate to the said offence and

thus in such circumstances refusing the admission to the candidate

was held to be clearly arbitrary a mala fide exercise of discretion which

was not sustainable in law. In the circumstances, the University was

directed to admit the candidate in the current year.

53. Relying on Nagarjuna Construction Co.Ltd. (supra), it has been

contended by the learned counsel for the petitioner that rules of natural

justice are not codified canons. The first and foremost principle is what

is commonly known as audi alteram partem rule which contemplates

that no one should be condemned unheard. Thus, notice is the first

limb of this principle which should be precise and unambiguous. Time

given to respond to the notice should be adequate so as to enable the

person concerned to make his effective representation. In the absence of

any notice of the kind and in case such reasonable opportunity is

denied, the order passed thereafter becomes wholly vitiated. The

Supreme Court in Para 33 to 41 of the judgment had held as under:-

"33. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.

34. The expressions "natural justice" and "legal justice" do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defense.

35. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works 1963 (143) ER 414, the principle was thus stated:

"Even God did not pass a sentence upon Adam, before he was called upon to make his defense. "Adam" says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should not eat.

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

36. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

37. What is meant by the term `principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB 160 at p.199 : 83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman 1943 AC 627 : (1948) 2 All ER 337, Lord Wright observed that it was not desirable to attempt `to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give `a full and fair opportunity' to every party of being heard.

38. Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice 1911 AC 179 : 80 LJKB 796, where Lord Loreburn, L.C. observed as follows:

Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must

act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial....The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.

Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view". To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works 1985 (10) AC 229 : 54 LJMC 81, where the learned and noble Lord Chancellor observed as follows:

No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.

Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as

in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase `justice should not only be done, but should be seen to be done'.

39. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression `civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.

40. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura 1855(2) Macg. 1.8, Lord Cranworth defined it as `universal justice'. In James Dunber Smith v. Her Majesty the Queen 1877-78(3) App.Case 614, 623 JC Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase `the requirements of substantial justice', while in Arthur John Specman v. Plumstead District Board of Works 1884-85(10) App. Case 229, 240, Earl of Selbourne, S.C. preferred the phrase `the substantial requirement of justice'. In Vionet v. Barrett 1885(55) LJRD 39, 41, Lord Esher, MR defined natural justice as `the natural sense of what is right and wrong'. While, however, deciding Hookings v. Smethwick Local Board of Health 1890 (24) QBD 712, Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet's case (supra) chose to define natural justice as `fundamental justice'. In Ridge v. Baldwin 1963(1) WB 569, 578, Harman LJ, in the Court

of Appeal countered natural justice with `fair-play in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India 1978 (2) SCR 621. In re R.N. (An Infaot) 1967(2) B617, 530, Lord Parker, CJ, preferred to describe natural justice as `a duty to act fairly'. In fairmount Investments Ltd. v. Secretary to State for Environment 1976 WLR 1255 Lord Russell of Willowan somewhat picturesquely described natural justice as `a fair crack of the whip' while Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex Parte Hosenball 1977 (1) WLR 766 preferred the homely phrase `common fairness'.

41. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is `nemo judex in causa sua' or `nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114 that is, `no man shall be a judge in his own cause'. Coke used the form `aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co. Litt. 1418), that is, `no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party'. The form `nemo potest esse simul actor et judex', that is, `no one can be at once suitor and judge' is also at times used. The second rule is `audi alteram partem', that is, `hear the other side'. At times and particularly in continental countries, the form `audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely `qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, `he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, `justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of

principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated."

54. In Roop Singh Negi (supra), the Supreme Court had held that

suspicion, as is well know, however, high it may be, can under no

circumstances be held to be a substitute for legal proof. It was further

held that though the provisions of Evidence Act may not be applicable

on departmental proceeding but the principles of natural justice are. In

this matter, the inquiry officer had relied upon the alleged confession

made by the delinquent. The Court had observed that that there was no

reason as to why the order of discharge passed by the Criminal court

on the basis of the same evidence should not have been taken into

consideration and it was held that the material brought on record

pointing out the guilt of the delinquent are required to be proved. In the

circumstances, it was held that the decision must be arrived at on some

evidence which is legally admissible and since the report of the inquiry

officer was found based on ipse dixit and also surmises and

conjectures, therefore, such action was not to be sustained.

55. About the alleged confession of the petitioner, the counsel for the

petitioner relied on Gopal Sah (supra), to contend that extra judicial

confession is, in the face of it, a week piece of evidence and the courts

are reluctant in the absence of a chain of cogent circumstances to rely

on this evidence for the purpose of recording conviction.

56. Per contra the learned counsel for the respondents relied on State

Bank of Patiala & Ors v. S.K.Sharma, (1996) 3 SCC 364; Mansoor Azam

v. Jamia Milia Islamia & Ors, 90(2001) DLT 735; Controller of

Examinations and Ors v. G.S.Sunder & Anr, 1993 Supp (3) SCC 82 and

Director (Studies), Dr.Ambedkar Institute of Hotel Management,

Nutrition & Catering Technology, Chandigarh and Ors v. Vaibhav Singh

Chauhan, (2009) 1 SCC 59; Narender Singh v. University of Delhi &

Ors, 70 (1997) DLT 509 and State of Punjab & Ors v. Dr.Harbhajan

Singh Greasy, (1996) 9 SCC 322. According to the learned counsel for

the respondents it was held in State Bank of Patiala (Supra) that the

interests of justice equally demands that the guilty should be punished

and that technicalities and irregularities which do not occasion failure

of justice are not allowed to defeat the ends of justice. It is contended

that the principles of natural justice cannot be perverted to achieve the

very opposite end. The Supreme Court had summarized the principles

in this context as follows:-

"(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature of (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: Procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.-Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice in established to have resulted there from, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such eases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defense in his evidence and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is sell- evident. No proof of prejudice as such need be called for in such a case. To report, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle slated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a

provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment) keeping in mind the approach adopted by the Constitution Bench in B. Karunakaran. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram pattern) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice/no hearing" and "no fair hearing", (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alterant paitem). (b) But in the latter case, the effect of violation (of a facet of the rule audi alterant partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not

apply in the case of rule against bias, the test in which behalf are laid down elsewhere.

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arises before them.

(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

57. In the above noted case relied on by the respondents though the

copies of the statements of two witnesses were not given to him,

however, the delinquent was permitted to take notes there from three

days prior to their examination and even one of the witnesses was not

examined. The delinquent had not raised any objection during the

enquiry that non furnishing of the copies of the statement had disabled

him and in these circumstances it was held that no prejudice had been

caused to him. In these circumstances on account of not furnishing the

copies of the statement of two witnesses, it was held that the principles

of natural justice were not violated and the delinquent had a fair

hearing and the disciplinary proceedings were not set aside. In Mansoor

Azam (Supra) it was held by a Single Judge relying on Controller of

Examinations & Ors v. G.S.Sunder & Anr, (1993) Supp.3 SCC 82 that

in matters of enforcement of discipline, the Courts must be very slow in

interference, as the authorities who are in-charge of education know

best how to deal with situation and fine principles of law cannot be

interpolated in their functioning. In the said case relied on by the

respondents, the petitioner Mansoor Alam was debarred from taking

admission in the university on account of his misconduct along with

two others. The Court had found the punishment imposed upon him

disproportionate to his misconduct and the matter was referred back to

the University for re-consideration of the case of the petitioner for award

of lesser punishment which was also awarded to other two students.

58. In G.S.Sunder (Supra) relied on by the respondents the principal

of the college had brought malpractices conducted by students in the

examination to the notice of the University. The malpractice had

affected innocent and intelligent students, as G.S.Sunder had

interchanged his roll number with that of another student K.R.Gandhi,

as Gandhi used to be a better student. Consequently G.S.Sunder was

passing all the examinations with good marks in those subjects where

the roll number was interchanged whereas Gandhi failed in those

subjects where the roll number were interchanged. However,

K.R.Gandhi had scored good marks in all subjects in supplementary

examination in which he had failed in the main examination.

G.S.Sunder had first denied the knowledge about interchanging the roll

number, however, at the second sitting of enquiry he had given a

statement admitting the commission of malpractice. A sub-committee

was appointed and the Chairman of the Syndicate Sub Committee

submitted the report and recommended the punishment. In these

circumstances it was held by the Supreme Court that it was a case of

systematic fraud conducted by G.S.Sunder and it could not be a sheer

coincidence that in all the semesters Sh.G.S.Sunder had been scoring

good marks and other student K.R.Gandhi had failed and in these

circumstances there was nothing unbelievable in G.S.Sunder admitting

his mistake and giving a statement to this effect. The case of the

petitioner, however, is apparently distinguishable. Besides the

continuous violations of the principles of natural justice and not

conducting any enquiry, as what has been alleged is that a fact finding

committee was appointed which did not examine any of the witnesses or

recorded the statements in the presence of the petitioner nor gave the

copies of the same to the petitioner but referred to alleged confession

letters. In the first confession letter it is allegedly stated by the

petitioner not to take any action against her and she would not join if

she will be selected whereas the fact is that on 25th July, 2007 it had

already been disclosed to her that she has scored very high marks and

she has been selected. In the circumstances she won‟t have written on

her own such a letter. A few minutes after writing the said confession

she allegedly wrote second confession where she simply admitted her

alleged mistake that she took the examination paper from the room of

Professor Uma Pati and in the third alleged confession she says that she

wrote down the answers. In the fourth alleged confession she implicated

her professor that he had told her that the entrance examination paper

were in the drawer and she could take it from there. The petitioner had

made categorical allegation against Ms. Aparna Dixit and other two

persons regarding the pressure and coercion and the circumstances

which they created under which the petitioner was left with no option

but to write whatsoever was dictated to her which facts have not been

refuted by Professor Aparna Dixit, respondent No.2 by filing her

affidavit. In these circumstances, the alleged confessions of the

petitioner cannot be accepted and cannot be the basis for inculpating

her in any manner. In these circumstances the respondents cannot rely

on the ratio of G.S.Sunder (Supra) in the facts and circumstances

which is quite distinguishable.

59. In Vaibhav Singh Chauhan (Supra) the candidate had a slip of

paper in his possession which pertained to examination in question,

which was recovered from him when the examination was going on. The

material on the slip of paper pertained to the examination and in these

circumstances it was held that it was immaterial whether the candidate

had used the piece of paper for writing the examination or not and had

set aside the decision of the High Court. Apparently the case relied on

by the respondents is distinguishable. In Narender Singh (Supra) the

allegation against the candidate was of ragging and consequently he

was not allowed admission to the third year. In the circumstances the

decision not to admit the petitioner to the third year although he was

not expelled was upheld and it was observed that it was necessary in

the interest of justice among students. It was further held that a

student has no right for admission in such a situation, even assuming

that terminology used in the order of the principal does not clearly and

fully express the intention to keep the candidate out of the college

permanently. The High Court had further held that though one may

have sympathy for a young person whose educational career is being

lost, however, such sympathy cannot be allowed to influence the Court

to impose on a college, a student whose presence in the campus is

perceived by college authorities as a potential threat to the discipline

and peaceful functioning of the college. In Dr.Harbhajan Singh Greasy

(Supra) relied on by the respondents the finding of the enquiry officer

were based on alleged admission of guilt which was not supported by

any statement of the delinquent in writing. In these circumstances

though the enquiry report was set aside, however, fresh enquiry was not

directed by the Supreme Court as the delinquent had retired in the

meantime. The Court had permitted pensionary benefits to the

delinquent, however, had declined back wages.

60. Perusal of the enquiry record produced by the respondents

reveals that the Vice Chancellor of respondent No.2 had appointed one

man Enquiry Committee to look into the matter of selection of two

candidates in pre Ph.D Program. The scope of the enquiry was to

ascertain the correct facts relating to said matter in the context of

deliberation done by the faculty and the statements/submissions

allegedly made by the candidate. In this background the respondent

No.3 had issued a communication to Professor Rakesh Bhatnagar,

Dr.K.J.Mukherjee, Dr.H.Chaudhary, Professor S.K.Kar, Dr.Rajiv Bhat

and Dr.S.Maitra to come to him on 18th January, 2008 for talking to

them.

61. Respondent No.3 thereafter, on 18th January, 2008 recorded the

statements of Dr.K.J.Mukherjee, Professor D.Choudhary, Professor

S.K.Kar, Professor Rakesh Bhatnagar and Professor Uttam Pati. The

statements of Dr. Shubrhangshu Maitra and Dr.Bhatt was recorded on

23rd January, 2008. On both the dates the petitioner was not present

nor the statements were recorded in her presence nor the copies of the

statements recorded by the one man committee were given to the

petitioner nor the petitioner was given any opportunity to cross examine

these persons on the statements of which it has been inferred that the

petitioner used unfair means by getting the question paper of the

entrance examination in advance.

62. The statements of Aparna Dixit was also recorded on 18th

January, 2008, however, her recorded statement also bears the date of

17th January, 2008. At that time also the petitioner was not present nor

the copy of the said statement was given to her. Similarly the statement

of Professor Uttam Pati was recorded on 18th January, 2008 in absence

of petitioner. Another statement of Professor Uttam Pati is also on the

file which was recorded on 17th January, 2008. Though copy of the

notice directing the other witnesses to come for `talk' on 18.1.2008 is on

record but there is no copy of any notice to said two witnesses to come

and `talk‟ to one man committee/respondent no.3. When and how they

were called and when their statements were recorded cannot be

ascertained from the record of alleged enquiry.

63. The statement of Gargi Roy, another candidate who is also alleged

to have used unfair means was also recorded on 17th December, 2007

who deposed that she was forced to write that she used unfair means to

qualify the entrance examination. She categorically deposed that when

she was leaving her office Professor Rakesh Bhatnagar follower her in

the corridor and he had said "I did not like the statements you have

written just now. Just write what I am telling you. Your boss has

already fired you, but don‟t worry if you write as I want I will get you a

job definitely, otherwise you and your future will be in great trouble."

64. According to Gargi Roy, another candidate, she was brought to

Professor Bhatnagar‟s office again where she was made to write

statements against Dr.Uttam Pati as she was working under his

guidance in a project. Gargi Roy also deposed that she had submitted

her retraction letter to the Rector-II. She categorically deposed that on

27th July, 2008 also she was abused by respondent No.2 Professor

Aparna Dixit. She also produced her retraction letter dated 30th July,

2007 addressed to Rector-II.

65. The enquiry record also has another statement of Gargi Roy

recorded on 17th January, 2008 and the letter of Sh.Subhash C.Gupta

father of Flora Gupta dated 29th July, 2007 addressed to Professor

Kumar Adhikari, Rector-II along with a letter dated 30th July, 2007 by

petitioner to Rector-II retracting her alleged confessions.

66. Whether the character certificate was to be issued or not was not

the scope of enquiry, however, the letters addressed by the petitioner to

the Dean, School of Biotechnology and other letters to Professor Kumar

Adhikari; Professor Rajendra Prasad asking for character certificate are

also on the record of the enquiry. There is no explanation as to why the

certificate demanded by the petitioner was not issued to her till 9th

April, 2008 and thereafter, it was issued with the stipulation that an

enquiry committee has been constituted against her.

67. The minutes of faculty meeting held on 27th July, 2007 on the

basis of which, it appears decision was taken to have the matter

enquired are as under:-

"The Dean reported to the faculty that the two girls, Miss Gargi Roy and Miss Flora Gupta were called to talk after the meeting of July 25, 2007 was over. Prof.Rakesh Bhatnagar and Prof.Pati were present during the meeting with the girls.

The Dean read out all the statements given by the two girls. After the statements were read, Prof.Pati told that he has received a letter in his mail box two hours ago and brought it from his office. The letter was from Miss Flora Gupta addressed to Prof.Uttam Pati with a copy marked to the President Students Union (copy of the letter enclosed).

The faculty unanimously resolved that the entire matter be referred to the administration to carry out investigation into this matter.

The faculty also resolved that the two girls be called and informed that an enquiry into the matter will be taking place, where in Miss Roy broke down and stated that she would prefer that no enquiry be held otherwise her career might be ruined."

68. Surprisingly though a number of persons were present on 27th

July, 2007 but the minutes are signed by respondent No.2 only. The

record of the enquiry also has the minutes of faculty meeting held on

25th July, 2007 which is also signed only by respondent No.2 which is

as under:-

"The faculty discussed about very high marks scored by the two girls of the school. However, the faculty resolved that the declaration of the results should not be withheld because it holds up the admission process.

The faculty resolved that the matter should be investigated and authorized the Dean to take adequate steps."

69. If it was resolved not to withhold the result, then why the result of

the petitioner was not disclosed has not been explained. There is no

decision on the file by anyone that pending the decision to conduct an

enquiry, the petitioner be not admitted to the course. If that be so then

why she was not admitted has not been satisfactorily explained by the

counsel for the respondents.

70. The plea of the petitioner is that she had given the retraction

letter on the next day to respondent no.2, however she refused to accept

it. This allegation has not been categorically denied by the said

respondent by filing an affidavit. There are other allegations against the

said respondent as to how she forced petitioner to write alleged four

confession letters. Though these allegations have been denied by the

Registrar, Mr. Avais Ahmed but they have not been denied by

respondent no. 2. The counter affidavit filed on behalf of University

which is supported by the affidavit of the registrar does not even

disclose that respondent no. 2 had disclosed the facts on the allegation

made against her to the said registrar. In the circumstances the

inevitable inference is that the allegations made by the petitioner

against respondent no. 2 have remained un-rebutted. If the respondent

no. 2 had refused to accept the retraction letter given by the petitioner,

then sending the retraction letter by the petitioner to the students

union and another to Prof. Uttam Pati who had produced the same on

27th July, 2007, two days after the alleged confessions were taken,

cannot be construed to be implausible or an afterthought.

71. By letter dated 30th July, 2007 addressed to Professor

D.B.Bhattacharya, Vice Chancellor of respondent No.1, respondent No.2

had sought a full fledged enquiry in the matter. A one man Enquiry

Committee was ordered and the one man Enquiry Committee on the

basis of alleged statements recorded on 18th January, 2008, 17th

January, 2008 and 23rd January, 2008 gave the report holding that the

petitioner had access to the question paper prior to the entrance

examination.

72. The enquiry committee did not give any notice to the petitioner as

to what is the basis of the allegation made against her. No documents

or material was supply to her on the basis of which it was prima facie

inferred that she had access to examination paper before the

examination. The one-man committee has followed its own procedure

which is not based on any statue or ordinance of respondent no. 1. He

issued notice to some of the witnesses to have talk with them. The

alleged talk was reduced into writing and has been treated as the

statements on the basis of which the one-man enquiry committee

inferred that the allegation against the petitioner was made out. The

copies of alleged `talk‟ between the one-man committee and witnesses

were not given to the petitioner. Petitioner was also not allowed to `talk‟

to such witnesses whose statements became the basis of alleged fact-

finding committee. Consequently, the petitioner had no opportunity to

ask questions from such witnesses in order to impeach whatsoever had

been stated by them. After recording the statement of such persons as

detailed hereinabove, the one-man committee did not ask petitioner to

give her version or to adduce evidence in support of her defense. The

petitioner has made a specific allegation that respondent no. 2 did all

this to accommodate his favorite persons which allegation has not been

denied by respondent no. 2 by filing her affidavit. The whole procedure

adopted by one-man committee is whimsical and without any basis and

is not sustainable under law or based on any statue or ordinance of the

University.

73. The respondents have also taken conflicting and contradictory

stands. The respondents have contended in response to the plea that

the petitioner was not allowed to cross examine the witnesses alleging

that "as such no witnesses were examined in the enquiry". If that be so

then on what basis the enquiry committee could give its report holding

that the allegations against the petitioner were made out. Regarding

violation of principles of natural Justice it is alleged that it was not a

departmental enquiry nor it was subjected to any rigid rules. Even if it

was not subjected to any rigid rules, the minimum that was required

was to make the petitioner know about the allegation against her and

the basis of said allegations and during the enquiry to allow her to

know as to what deposition or evidence was adduced against her.

Despite no rigid rules, if something is as stated against any person, he

has a right to ask that person such questions which will impeach his

deposition. There is no presumption in law that whatsoever will be

stated before one-man enquiry committee by any professor or official of

the University would be nothing but truth and has to be accepted as

such. The learned counsel for the respondents has not given a single

satisfactory explanation as to how the one-man enquiry met the

requirements of principles of natural Justice. The only answer is that it

was a fact-finding committee. If it was a fact-finding committee in which

neither the delinquent had to be explained as to what was against her

and what was the basis of that and what deposition or evidence was

adduced against and the findings of the one-man committee were only

prima facie, then a regular enquiry ought to have been conducted

afterwards. The fact-finding enquiry conducted by one-man committee

has not met the requirements of principles of natural Justice on any

count.

74. The enquiry committee has also held that the petitioner admitted

that she had written the statements before the respondent no. 2 and

other persons. This is not disputed that the statements were written by

her. What is disputed is whether she had given the alleged confession

on her own or she was coerced or pressurized to write the alleged

confessions within a span of one hour. The enquiry committee has

noticed the statement of Prof. Uttam Pati who stated that the

statements were dictated by Prof. Bhatnagar and Prof. Dixit, respondent

no.2 and the petitioner and another student did not write the

statements on their own. There is apparently no finding that the four

different statements were given by the petitioner on her own free will

75. The grounds on which administrative action is subject to control

by judicial review are, "illegality"; "irrationality" and "procedural

impropriety". The Court will be entitled to interfere in such matters if

the decision is tainted by any vulnerability like illegality, irrationality

and procedural impropriety. To be "irrational" it has to be held that on

material, it is a decision "so outrageous" as to be in total defiance of

logic or moral standards. If the power is exercised on the basis of facts

which do not exist having which are patently erroneous, such exercise

of power shall be vitiated. Exercise of power will be set aside if there is

manifest error in the exercise of such power or the exercise of power is

manifestly arbitrary. To arrive at a decision on "reasonableness" the

court has to find out if the respondents have left out a relevant factor or

taken into account irrelevant factors.

76. The respondent no. 3‟s report dated 7.3.2008 is in total defiance

of logic and any rationality and has manifest errors. The said

respondent has left out relevant factors and has taking into account

irrelevant factors. The case of the respondents is also not that the

petitioner had stolen the question papers or had access to them by any

other illegal means without the knowledge of paper setter Prof. Uttam

Pati. In the circumstances the deposition of the said witness was very

material. The said witness did not say that he gave access to the

petitioner to the question paper. It was not even put to him that he had

allowed the petitioner to see the question papers and note down the

questions and solve the answers. Surprisingly though it is stated that

the decision was taken to take action against the said Professor,

however, it has not been divulged or disclosed that any enquiry was

conducted against the said Professor or not. The whole approach of the

respondents is completely outrageous and in defiance, logic. The

culpability of the petitioner could be established only on the basis of

culpability of the said Professor.

77. After the conclusion of the alleged fact-finding enquiry in which

no established procedure was followed and the one-man committee

talked to certain witnesses, wrote down their statements thereafter and

concluded that the allegations against the petitioner were made out by

giving a report dated 7th March, 2008, the copy of the said report was

not given to the petitioner on one pretext or another for a considerable

period. A show cause notice dated 15th July, 2007 was given asking

petitioner to show cause as to why disciplinary action be not initiated

against them without giving the copy of the enquiry report. Another

show cause notice of the same date was thereafter given after the

receipt of reply dated 18th July, 2008 categorically stipulating that the

petitioner does not know on what grounds the enquiry committee has

arrived at the conclusion as stated in the show cause notice because

even the copy of the enquiry report had not been given to her.

Thereafter, on another copy of show cause notice dated 15.7.2008, an

endorsement dated 21st July, 2008 at 5.00 P.M was made by the Chief

Proctor contending that the copy of the enquiry report is enclosed with

the notice and the petitioner was asked to give reply by 23rd July, 2008,

i.e within 24 hours. Apparently sufficient time was not given to the

petitioner to reply to show cause notice. The respondents are unable to

give any cogent reason as to why the copy of the enquiry report was not

given to the petitioner earlier. Perusal of the report dated 7th March,

2008 reveals that it is not self explanatory and merely on the basis of

the report, the rationale for the inferences drawn by the one-man

enquiry committee cannot be comprehended. The petitioner had

therefore demanded the copies of the statements and the documents on

the basis of which the report was given by communication dated 23rd

July, 2008. No reasons had been disclosed as to why the copies of the

documents and the statement of witnesses were not required to be given

to the petitioner. Every step taken by the respondents in awarding the

punishment to the petitioner in the facts and circumstances is in

violation of the principles of natural Justice.

78. The respondent no.1 has an ordinance which stipulates the

procedure for dealing with the cases of use of unfair means. The

relevant ordinance of the respondents is as under:-

25. *ORDINANCE RELATING TO THE USE OF UNFAIR MEANS BY STUDENTS IN EVALUATION

1. Definitions:

For the purposes of this Ordinance:

(a) Evaluation means and includes all learning processes followed by evaluation such as quizzes, term papers, assigned readings, laboratory tests, seminars mid-semester examinations and end-semester examinations and research papers including dissertations and theses.

(b) Student means a student on active rolls of the University.

(c) Semester implies Monsoon or Winter semester of an Academic year.

(d) The use of unfair means implies any dishonest or unfair means or indulging in disorderly conduct including plagiarism during the course of study in a programme at the University.

(e) Committee means the Standing Committee of the Academic Council for looking into the cases of use of unfair means by the students.

2. Constitution of the Standing Committee:

(a) On the recommendations of the Vice-Chancellor, the Academic Council shall constitute a Standing Committee consisting of the following:

       (i)         Two Deans; and

       (ii)    The Dean of the School from where the case of use of unfair

means by student(s) reported (to be co-opted);

Provided that if the reported case of the student(s) happens to be from the School whose Dean is already represented in the Committee, then the Vice-Chancellor shall nominate another Dean to be a member of the Committee.

(b) An Officer of the University nominated by the Vice-

Chancellor will function as non-member Secretary of the Committee.

3. A student of the University who is reported to have indulged in use of unfair means in any aspect of evaluation inclusive of quizzes, term papers, assigned readings, laboratory tests, seminars, mid-semester or end-semester examinations and or have indulged in plagiarism while writing research publications/articles including dissertations and theses would made himself/herself liable for disciplinary action as may be determined by the committee of the Academic Council dealing with cases of use of unfair means.

4.(a) Any faculty member finding a student of the University indulging in the use of unfair means will report in writing to

the Chairperson of the Centre with copies to the Dean of the School concerned and the Co-ordinator (Evaluation) for placing before the Committee dealing with cases of use of unfair means for its appropriate consideration and directions.

(b) The concerned Centre/School shall forward their views to the Committee within 15 days of the receipt of the said communication from the faculty member. In case no views are received from the concerned Centre/School, the Committee will proceed suo moto.

5. The Committee will provide a student alleged to have been involved in the use of unfair means, fair and reasonable opportunity to prove his/her innocence before pronouncing him/her as guilty.

6. The Committee shall be entitled to exercise all or any of the powers relating to discipline and disciplinary action in relation to any student as contained in the Statute 32 of the Statutes of the University as may be delegated to it by the Vice-Chancellor.

7. A student awarded punishment by the Committee dealing with the cases of use of unfair means shall be entitled to make an appeal to the Vice-Chancellor within 30 days of the award of punishment.

8. In all matters relating to discipline and disciplinary action against students for use of unfair means, the decision of the Vice-Chancellor shall be final and no further appeal shall be against it.

79. According to the learned counsel for the respondents, the said

ordinance and the procedures set therein is not applicable in the case of

the petitioner as she was not a student of respondent no.1. According to

him a student under the said ordinance is one who is on the active roll

of the University. The respondents however, cannot deny that in the

entrance examination a student who is on the active role of the

University or other candidates who are not on the active role of the

university could appear. In case of use of unfair means in the entrance

examination, the respondents could not use two types of procedures in

the facts and circumstances. Even if, strictly speaking the ordinance 25

regarding use of unfair means was not applicable to a candidate who

was not on active roll, the same procedure ought to have been followed

by the respondents.

80. University Grants commission activities are regulated under Act

33 of 1972. The power and functions of the Commission were detailed

by the Act 59 of 1984 (w.e.f. 1.10.1984). Section 12 A (1) (g) defines

`student‟ which is as under:

"(g) "Student" includes a person seeking admission as a student:"

In the circumstances in dealing with the case of the petitioner for

alleged use of unfair means, the respondents ought to have followed the

same procedure as stipulated in ordinance 25 even if a strictly speaking

it was not applicable to the petitioner. Therefore for the foregoing

reasons and in the totality of the facts and circumstances, the Office

order No.08/CP/2008 dated 5th August, 2008 and the enquiry report

dated 7th March, 2008 cannot be sustained in the facts and in law and

they are set aside.

81. On setting aside the order of punishment and the enquiry report,

the next question is whether the matter should be remanded to the

respondent for fresh enquiry in accordance with the procedure

analogous to the procedural detailed in ordinance 25 or to direct the

respondents to allow the petitioner to join Ph.D course now as she has

already lost five years. Even if the lapse of the petitioner is established

after a proper enquiry, the punishment for debarment for more than five

years could not be granted. The petitioner has already undergone the

punishment for a lapse which has not been established against her.

82. Even if the matter is remanded and fresh enquiry is conducted

and if the petitioner is found guilty, she cannot be imposed more severe

punishment than what had been awarded to him. The High

Court/Tribunal, while exercising the power of judicial review, should

not normally substitute its own conclusion on penalty and impose some

other penalty. However, 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/applicant authority to reconsider the penalty

imposed, or to shorten the litigation, it may itself, in exceptional and

rare cases, impose appropriate punishment with cogent reasons in

support thereof. In the circumstances, remanding the matter to the

respondents would result in imposing more stringent punishment on

the petitioner than what has been awarded to her without

establishment of her culpability.

83. Therefore, in the peculiar facts and circumstances, the matter is

not remanded for fresh enquiry and the order of punishment being

office order no. 08/CP/2008 and consequence thereof are set aside. The

writ petition is therefore, allowed. The respondents are directed to admit

the petitioner to Ph.D course in the ensuing session forthwith.

Considering the facts and circumstances the petitioner is also awarded

the costs of Rs.30,000/. Cost be paid within four weeks. With these

directions the writ petition is allowed. All the pending applications also

stand disposed of.

ANIL KUMAR, J.

July 6, 2012 k/vk