Delhi High Court
Mujeeb Hussain Gattoo vs Jawaharlal Nehru University on 12 October, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: October 12, 2017
+ W.P. (C) 7942/2016, CM No. 32966/2016
MUJEEB HUSSAIN GATTOO
..... Petitioner
Through: Ms. Nitya Ramakrishnan,
Ms. Warisha Farasat, Mr.
Ahmed Said, Ms. Rudrakshi
Deo & Mr. Vibhor Jain, Advs.
versus
JAWAHARLAL NEHRU UNIVERSITY
..... Respondent
Through: Ms. Ginny J. Rautray and
Ms. Anushka Ashok, Advs.
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. The present petition has been filed with the following prayers:-
"It is, therefore, most respectfully prayed that this Hon‟ble
Court may be pleased
a. Call for the records of the High Level Enquiry
Committee (HLEC) & the Appellate Authority constituted
by the Respondent,
b. Issue a writ of certiorari, or other appropriate writ,
quashing the Office Order No. 199/CP/2016, dated
22.08.2016 of the Chief Proctor and the Appellate
Authority of the Respondent University,
c. Issue a writ of certiorari, or other appropriate writ,
quashing the Office Order No.145/CP/2016 dated 25 April
2016 issued by the Chief Proctor of the Respondent
University against the Petitioner, the report of the HLEC,
and all consequent orders related to the HLEC
proceedings;
d. Pass any other order that this Hon‟ble Court may be
pleased to pass in the interest of justice."
THE FACTS:-
2. The facts as averred by the petitioner are, on February 11, 2016
a Proctorial Enquiry Committee was constituted to enquire into the
incident that occurred near Sabarmati Dhaba, JNU on February 09,
2016. However, on the same day i.e February 11, 2016 the Proctorial
Enquiry was immediately replaced by the High Level Enquiry
Committee (HLEL for short) to enquire into the incident of February
09, 2016 without giving any reasons whatsoever for not conducting a
proctorial enquiry as mandated by the Statute 32(5) of the University.
3. On February 18, 2016, he received first e mail from the Chief
Proctor asking him to appear before the HLEC for some clarifications.
It is stated, the petitioner received the same e mail on February 19,
2016 from his supervisor to which he replied he was out of campus
because of health issues. It is his case on February 24, 2016 he again
received e- mails from the Chief Proctor and Chairperson of the
Department with some details. He replied on February 27, 2016 to
both the e-mails from the Chief Proctor that he could not appear
before the HLEC on those specific dates as he was having health
issues and was out of city recuperating from an illness at home in
Kashmir. On February 29, 2016 the Chief Proctor asked him by e-
mail as, when he would be back to JNU; to which he replied that he
had been advised complete bed rest for two weeks and would be back
only on March 03, 2016. On March 09, 2016 he sent an e-mail to JNU
informing them about his recovery. He asked for permission to deal
with some prior academic commitments and assured them of
presenting himself before the HLEC for clarifications on March 21,
2016, to which the JNU had not replied.
4. It is his case, that on March 15, 2016, he was shocked to receive
an e-mail from his supervisor whereby he was informed that the
petitioner has been found guilty of arousing communal, caste or
regional feeling among the students in the context of incident that took
place on February 09, 2016 in the JNU campus. It is averred that the
findings against him without hearing him by the Authorities, more so,
when has informed them about his serious health problems is
untenable. According to him, when the Authorities were fully
informed by the petitioner about the fact that he was outside Delhi
attending a conference in Kerala and he could not even received copy
of the show cause notice issued to him, despite this the Authorities
have held him guilty and they demanded that he put forward a
defence, which would effectively mean that he would have to file a
reply even without looking at the show cause notice. On March 16,
2016, he received a call from his supervisor informing that the report
of the HLEC has been received. However, the petitioner was not
given a copy of the said report in the e-mail dated March 15, 2016. It
is averred in the petition that on March 18, 2016, the petitioner
submitted a short reply to the e-mail dated March 15, 2016 even
though he was not even informed about the charges made against him
and the materials upon which he was found guilty. Upon returning to
his hostel, the petitioner found a show cause notice dated March 14,
2016, which also failed to outline any charges made against the
petitioner. On April 25, 2016, he was informed vide letter dated April
25, 2016 by the University that he was guilty of and being punished
with rustication for two semesters on account of (a) being part of the
procession from Sabarmati ground to the Ganga Dhaba during which
objectionable slogans were shouted; (b) being part of the group in
which many outsiders were present whereas the total number of
participants in the booking form were seven only.
5. It is his case that discrepant terms in the show cause notice and
the order of punishment dated April 25, 2016 indicate total non
application of mind. He refers to the earlier order dated May 13, 2016
passed by this Court in different writ petitions wherein this Court had
stayed the Office order dated April 25, 2016 and directed the
University to consider the appeals of all the students punished. On
May 17, 2016, the petitioner filed an appeal under Section 32(5) of the
Statute of the University against Office order dated April 25, 2016.
On June 14, 2016 he received an e-mail from his supervisor in which
he was informed that he must depose before the Vice Chancellor, JNU
on June 16, 2016 at 11.30 am at his office. He rushed back to Delhi to
deposed before the Committee as he was in Kashmir, since the
holidays had started. The petitioner therefore, e-mailed to the Vice
Chancellor requesting him that he be permitted to depose before him
following week because he had to make travel arrangements within a
day and given the tourist season in Kashmir, air fares were very
expensive. According to him, he also added that if the extension was
not possible then the petitioner was willing to depose on June 16, 2016
itself. The petitioner however, did not receive any reply from the Vice
Chancellor, so he reached Delhi within a day and deposed before the
Appellate Authority on the said date and time. On June 16, 2016, he
came to the Vice Chancellor's office to depose. It is averred that on
August 22, 2016 the impugned order of the Appellate Authority was
received by him on August 24, 2016 whereby the petitioner has been
rusticated for two semesters on the basis of the recommendation of the
HLEC was passed by the University against him. It is his case that
even before the Appellate Authority, he was denied a meaningful
opportunity to defend himself. Neither before the HLEC which,
recommended the punishment nor before the Appellate Authority
which passed the order against the petitioner, he was explained all the
charges against him or the details or the basis of the severe
punishment that was given to him. The Appellate Authority order
dated August 22, 2016 is lacking in material details and credible
evidence, on the basis of which the petitioner was eventually
punished. It is averred, that the Appellate Authority order merely
consist of two small sentences under the heading „evidence‟, which are
incomplete, cursory and completely unreliable. It mentions the
depositions of eye witnesses without naming the witnesses or giving
details of the actual role of the petitioner.
6. Ms. Nitya Ramakrishnan, learned counsel for the petitioner
would at the outset submit that, the facts in the counter affidavit vis a
vis the Petitioner are false and inaccurate. According to her, the facts
alleged in paragraph 22, page 12 of the short affidavit as well as other
facts filed by the Respondent University that the petitioner had spent
three hours on June 16, 2016 with the pertinent files and the
evidences against him are denied. She submitted, the Petitioner
reached the VC's office at 11:30 am for deposition (as he had been
informed in an email). The Security guard asked him to wait for some
time. He was asked to sit inside a room where other students were also
present. After sometime Umar was asked to enter the VC's office,
followed by Ashwati. The Petitioner entered VC's office at around
12:55 pm. At most the meeting lasted for about 30-40 minutes. It is
important to bring to the notice of this court that petitioner could never
have accessed the concerned documents for three hours because he
caught a flight the same afternoon for which he reached the airport by
2: 15 pm, booked tickets by (2 :25 p.m), attained boarding pass and
was through the security check by 3 pm. Thus, it is impossible that the
Petitioner could have been inside for three hours as alleged by the
Respondent University and still taken the flight that afternoon on time.
The Petitioner could not access the materials against him due to severe
time constraint is also proven by the short written statement submitted
by him during the meeting where he specifically mentions that he has
not looked at the files.
7. It is the submission of Ms. Ramakrishnan, that the Punishment
imposed is grave, arbitrary without following due process, and would
completely jeopardizes the Petitioners' education and career prospects.
The Petitioner has been a good and conscientious student throughout
as his academic record will prove. The Petitioner qualified the
National Eligibility Test held in December 2014 and June 2015. He
has also published several papers and book reviews, attended
conferences and workshops as well. If the punishment is allowed to
stand, it will adversely affect his right to education and livelihood,
both of which are Fundamental Rights. Since he has already submitted
his PHD synopsis, a rustication from campus for two semesters, will
cause irreparable harm to the Petitioners' academic and career
pursuits, which will affect him lifelong.
8. She would submit, the proceedings of the High Level Enquiry
Committee (HLEC) have been marred by serious concerns of lack of
due process and arbitrariness, and have been conducted in
contravention of well- established principles of natural justice the
detailed guidelines for inquiries as laid down under Statute 32(5) of
the Statutes of the University (the Proctorial Enquiry guidelines)
adversely affecting the Petitioners' right to be heard. Moreover, the
provision of appeal in the Regulations becomes illusory, if the student
is not aware of what persuaded the disciplinary authority, after the
show cause notice and the reply thereto, in its decision ,to sustain a
finding of guilt and award a penalty. Even on the award of penalty, the
student must be heard. In fact the very opaqueness of the process
vitiates the same and renders the punishment unjust.
9. She also submitted, the Petitioner was denied opportunity to
defend himself- charges were not explained, materials against him
were not made available, no opportunity to cross examine witnesses,
and other violations of natural justice. The Petitioner has been denied
any meaningful opportunity to defend himself either before the HLEC
or the Appellate Authority in order to clear his name and present his
version of the events. Neither before the HLEC recommended the
punishment nor before the Appellate Authority passed the order
against the Petitioner, was he ever explained the charges against him
or the details or the basis of the severe punishment that was given to
him. The impugned order of the Appellate Authority dated August 22,
2016 is lacking in material details or credible evidence on the basis of
which the Petitioner was eventually punished. In the Appellate
Authority's order there are merely two small sentences under the
heading of evidence, which are incomplete, cursory and completely
unreliable. According to her, the flimsy evidence as per the Order
dated August 22, 2016 against the Petitioner is as below:
"1 Participation in objectionable sloganeering during the event, which
is evidenced from videos authenticated by Truth Labs.
2. Being part of the group (as per the deposition of eye witnesses) in
which many outsiders were present, whereas the total number of
participants mentioned in the booking form were seven only."
It only mentions the deposition of eye-witnesses without either
naming the witnesses or giving the details of the actual role of the
Petitioner. Moreover, the Petitioner does not even know who these
eyewitnesses against him were, leave aside the opportunity of cross-
examining them or testing their evidence.
10. She also submitted, the Petitioner was never given the materials
against him. The Appellate Authority has also falsely claimed that the
Petitioner was given ample time by the committee to examine all the
materials against him before he could write his appeal and he read
through these files and wrote his appeal. This is completely false. In
fact, during the meeting the Petitioner was confronted with a dossier
and was told by the Appellate Authority that it contained the
documents on the basis of which the High Level Inquiry Committee
had taken a decision. The Petitioner was asked if he wanted to see the
contents in the file to which he answered in the affirmative. She would
state, the Petitioner said that he would want to examine these
documents but that he could not examine the contents of a dossier so
quickly and if he could be given the material he could evaluate and
provide answers to the same. He was not allowed to do the same as he
was clearly told by the Appellate Authority that he would have to look
through the materials quickly then and there. The Petitioner realized
that there could be no way that he could have opened and examined
and understood the documents within a few minutes. Thus, the
Petitioner did not open the file and access the dossier against him at
the meeting. Clearly, the production of the documents was just a
formality to show that due process was being followed whereas the
Appellate Authority had no intention of allowing the Petitioner to
access the materials against him. Therefore, the Appellate authority
denied to the Petitioner a meaningful opportunity to examine the
materials against him. She would state, the order of the Appellate
Authority also falsely claimed that the Petitioner was provided a set of
file (Security depositions, copies of relevant videos, copies of
statements given by witnesses, copies of all correspondence, copies of
the report of HLEC, all other documentary proof) used by-the HLEC
to arrive at the punishment against the Petitioner. In fact, when the
Petitioner asked the Appellate Authority to give him time to examine
the documents or take them back with him so that he could look at
them carefully and assess what was the nature of the allegation against
him, the Appellate Authority refused to let him take the documents.
As submitted above, it is clear that the Petitioner was not given any
meaningful opportunity or ample time to examine the materials
against him during the meeting.
11. It was also the submission of Ms. Ramakrishnan that the
Appellate Authority has without applying its mind dismissed the
appeal saying that the Petitioner did not make any specific appeal to
absolve himself from the charges made by HLEC. The Appellate
Authority has completely overlooked the fact that one of the main
grievances of the Petitioner has been that he was never even made
aware of the specific charges by the HLEC before he was convicted
and held guilty. Moreover, even the Appellate Authority did not
apprise the Petitioner of the specific charges against him but asked
him some very general questions including:
"Do you feel that slogan raised at the events at both locations were
objectionable?
Did you participate in objectionable sloganeering during the event".
The Petitioner was never informed exactly as to what these
objectionable slogans were or who they were objectionable to during
the entire meeting.
12. She would state, the High Level Enquiry Committee failed to
follow due process inasmuch as, on March 15, 2016 the Petitioner has
been found guilty of a set of arousing communal feelings. It was after
arriving at a finding of guilt that he was informed of some vague
charges by an email. There was a complete refusal on part of the
concerned JNU authorities to grant the Petitioner any time to even
submit a cursory explanation leave alone a considered reply.
Obviously, since he had not been provided with any materials based
on which he was found guilty, he could not defend himself. Given
such a short deadline, he was forced to quickly make a small
submission without even knowing the specific charges against him.
13. Furthermore, the Petitioner was not even sent officially by
email a copy of the HLEC report before he was required to submit his
reply to the aforesaid email. On March 16, 2016 around (3:31 pm), his
supervisor called him saying that he has received a report of the High
Level Enquiry Committee, JNU where certain findings have been
made against the Petitioner. He asked the Petitioner to find the High
Level Enquiry Committee Report online. What was available online
was only 8 pages of the report. A major portion of the report was
concealed from the online copy. In spite of the severe handicap of
being completely in the dark about the material said to obtain against
him, the Petitioner gave a reply to the show cause notice. The
Petitioner does not know what application of mind there was to the
points raised in his reply dated March 18,2016.
14. By Office Order No. 145/CP/2016 dated April 25, 2016 was
informed that he was guilty of and being punished with rustication for
two semesters on account of:-
(a) being the part of the procession from Sabarmati ground to the
Ganga Dhaba during which objectionable slogans were shouted (b)
being part of the group in which many outsiders were present, whereas
the total number of participants mentioned in the booking form were
form were seven only."
15. Ms. Ramakrishnan would submit, the Petitioner finally received
the show cause notice of March 14, 2016 once he went back to the
hostel, which was much after he had submitted his reply to the email
dated March 15, 2016 but even the show cause notice failed to outline
any charges against him. Instead, it once again stated that he had been
found guilty of arousing communal, caste or regional feeling.
16. She submitted, the show cause notice was silent on what aspect
of his conduct was tantamount to arousing communal feelings. Indeed
the phrase 'arousing communal, caste or regional feeling among the
students' is completely vague. The purported show cause notice, was
after concluding guilt. It was not accompanied by even a full copy of
the HLEC, much less deposition of witnesses and other material on
which the charges were founded. The Proctorial Enquiry Regulations
and decisions of this Court require that all the material including
witness statements be provided to the student facing disciplinary
action, and that the student be given an opportunity to cross examine
witnesses. This requirement was observed only in the breach. The
discrepant terms of the show cause email of March 15, 2016 notice of
March 14, 2016 and the order of punishment dated April 25, 2016 also
indicate complete non-application of mind, and that none of the points
raised in the reply to the email by the Petitioner.
17. She would submit, the Petitioner fully cooperated with the
authorities The Appellate Authority has wrongly recorded that the
Petitioner did not cooperate with them. The Petitioner answered all the
questions that were put to him by the Appellate Authority. In fact, the
Petitioner within a days notice rushed back so that he would be
available in Delhi to depose before the Committee. The Petitioner on
the June 14, 2016 received an e-mail from his supervisor in which he
was informed that he must deposed before the Vice Chancellor, JNU
on June 16, 2014 at 11:30 at the Vice Chancellor office. The Petitioner
was at the time at home in Kashmir since the holidays had started. The
Petitioner therefore e-mailed the Vice Chancellor requesting him that
he be permitted to depose before him the following week because he
had to make travel arrangements within a day, and given the tourist
season in Kashmir, airfares were very expensive. The petitioner added
that if the extension was not possible then the Petitioner was willing to
depose on the June 16, 2016 itself. The Petitioner did not receive any
reply from the Vice Chancellor so he reached Delhi within a day and
deposed before him on the said date and time. It is pertinent to
mention here that the JNU administration did not respond to the
emails of the Petitioner except once. The punishment awarded affects
the Petitioners' Fundamental Right to Education and Livelihood, is
also grossly disproportionate even to the charges as stated. Although
the charges are factually incorrect, the Petitioner submits that even on
the face of it, none of them reveals moral turpitude or any conduct so
reprehensible that it must be visited with such a severe punishment as
rustication.
18. She would state, the Freedom of Speech & Expression is a
salient right guaranteed by the Indian Constitution Finally, even if the
allegation made in the Report of the High Level Enquiry Committee
against the Petitioner, even assuming without admitting them to be
true, clearly fall within the realm of protected free speech. The Right
to Freedom of Speech and Expression has been interpreted liberally by
this Court as well as other High Courts of the country to encompass
even the right to dissent. Most recently, this Court in Priya Pillai held
that the core aspect of democracy is the freedom of an individual to be
able to freely operate, within the framework of the laws enacted by the
Parliament.
19. On the other hand, Ms. Ginny Routray, the learned counsel for
the respondent would submit, the Petitioner was given ample
opportunities to appear and depose before the Enquiry Committee
along with the liberty to carry materials and evidences in his defense
both at the stage of Enquiry, Show Cause Notice and Appeal. The
Petitioner failed to respond to the first notice dated February 18, 2016.
Subsequently, a second notice was issued on February 19, 2016 to
which the Petitioner responded on February 21, 2016 via Email that he
was out of campus due to some health issues. Pertinently, the
Petitioner is silent on which date he left the campus and on whose
authorization. A third notice was served to the Petitioner via Email on
February 24, 2016 asking him to appear before the committee on
February 26, 2016, however, the Petitioner abstained himself from
appearing before the committee and clearing his stand and sent an
Email on February 27, 2016 stating that he cannot appear before the
committee due to health issues. Ms. Routray would state, that the
Petitioner has failed to place on record any document pertaining to his
illness or his authorized absence from the campus. Further, an Email
was sent to the Petitioner by the Chief Proctor on February 29, 2016
asking the Petitioner as to when he would return to the campus, the
Petitioner responded that he would return on March 10, 2016.
Another Email was sent by the Petitioner on March 09, 2016 a day
before he was scheduled to return to campus stating that he has some
prior academic commitments and would thus, only return on March
21, 2016. It must be noted that the Petitioner never once mentioned
the said academic commitments in his previous communications.
Moreover, even after returning to the campus, the Petitioner failed to
contact the Proctor. Therefore, a Show Cause Notice dated March 14,
2016 was issued to the Petitioner. She would further submit, that the
Petitioner himself failed to avail the opportunity given to him and
thus, there was no violation of Principles of Natural justice and fair
play.
20. The Petitioner on March 17, 2016 wrote to the Respondent
wherein he admits to participating in the event, the Petitioner stated
that -
On February 9, 2016, I reached the programme hours after
it had already started, which was essentially a cultural event
organised by some of JNU students. The invitation to the
event was open for all and I myself came across the same
through a poster put up in the University campus. As I
reached the venue the event was already going on and many
students had gathered there.
No slogan was raised by me that can be considered to be
illegal or unconstitutional or not protected speech under
Article 19(1)(a) of the Constitution of India. Even the
allegation made in the Report of the High Level Enquiry
Committee against me, even assuming without admitting
them to be true, clearly fall within the realm of protected
free speech. If any slogan that is not protected free speech
under Indian Constitution was raised by anyone else at the
gathering, I cannot be held responsible for the same. I
participated in the programme hours after it had started
and left the venue much before it had ended.
21. According to Ms. Routray, the petitioner's allegations that he
was not aware of the charges against him, are not tenable when he
goes on to admit that he had accessed the HLEC Report online and
thus, was very well aware of the charges levelled against him. She
would state, in this letter the Petitioner merely claims that he was
denied a fair opportunity to be heard. However, it is evident that the
petitioner gave excuses for not appearing before the committee, be it
his health or that he had to present a paper. She submitted that the
Petitioner has not placed on record either before the Proctor or before
the Appellate Committee any document to evidence the same. The
Petitioner further prayed that-
I would like to finally submit that, therefore, the findings
against me by the HLEC, JNU are discarded, and I be given
a fair opportunity to defend myself in consonance with
mandatory statutory provisions and the principle of natural
justice.
22. She would submit, the show cause notice was an opportunity
that was given to the Petitioner to come forward and defend himself.
However apart from letter dated March 17, 2017, he failed to contact
the office of the Proctor after he came back to the campus. She would
also submit, that the Petitioner never demanded to inspect the
documents that were relied upon by the HLEC for recommending
punishment till Office Order No.145/CP/2016 dated April 25, 2016
was passed wherein the Petitioner was rusticated for both monsoon
and winter semesters 2016-2017.
23. According to her, at the stage of appeal the decision is to be
taken only from record before the Appellate Authority. Rules under
the Statute 32(5) state that the punished student has the right to appeal
against the punishment and Vice Chancellor is the empowered
authority to deal with Appeals. The Petitioner chose not to avail
opportunity given to him, at the stage of enquiry, by admittedly being
out of campus, Also the Petitioner has not controverted his
participation at the event and sloganeering there. The slogans
attributed to the Petitioner have been detailed in the HLEC report and
have not been contravened by the Petitioner. The Petitioner only
questions the Unconstitutionality of the same. She would submit, the
Respondent is only concerned with discipline of students, thus, the
Petitioner's statement that the slogans shouted by him were not
unconstitutional or illegal and were within the realm of protected free
speech under Article 19(1)(a) of the Constitution of India are
irrelevant as the Petitioner was charged for Arousing communal, caste
or regional feeling or creating disharmony among students by
indulging in sloganeering and being the part of the procession from
Sabarmati ground to the Ganga Dhaba during which objectionable
slogans were shouted. In view of this, and as per the regulations in
this premise, the slogans were therefore, found objectionable. As the
factum of sloganeering and participation in an unauthorized event
stood proved and admitted hence, the Writ Petition, on this ground
alone, is not maintainable.
24. Ms. Routray would also submit that the Petitioner is a student
studying in JNU and resident of Hostel in JNU. The Respondent is
Jawaharlal Nehru University (JNU) established and incorporated by an
Act of Parliament in the year 1966. That at 12 pm on February 09,
2016 the Respondent got to know that some students were planning
to host an "anti national event" in the evening at Sabarmati Dhaba. A
meeting was called in the Vice Chancellor's Office, wherein it was
discovered that permission was sought from the Additional Dean of
Students on the false pretext of holding a poetry reading competition
at Sabarmati Dhaba. Despite the alleged "permission" immediately
being withdrawn by the DOS, the event was carried on which led to an
enormous law and order situation.
25. She stated, on February 11, 2016 forthwith a High Level
Enquiry Committee (HLEC) was constituted by the Vice Chancellor
to enquire into the incident that took place on February 09, 2016 in the
Respondent's campus. By virtue of Section 5(10) of the JNU Act read
with Statute 32(1) of the Statutes of the University-
"The Vice Chancellor has been vested with all the powers
relating to discipline and disciplinary action in relation to
students."
The HLEC superseded the Proctorial Enquiry vide letter dated
February 11, 2016 wherein it is stated that
This committee supersedes the Proctorial Enquiry
Committee and the earlier notice dated 11th February, 2016
of the Chief Proctor stands withdrawn.
26. According to her, the HLEC followed SOP being norms in view
of the nature and the need of the enquiry. The terms of reference of
the Enquiry entailed formulation of SOP. The SOP norms are
essentially analogous to the Norms recommended for a Proctorial
enquiry. The 3 member Committee later expanded to 5 by the Vice-
Chancellor mainly consisted of University Professors and since it was
an internal enquiry of JNU, no third party was allowed to be present
during hearing. Further, no one was allowed to be represented by a
third party. The terms of Reference for the Committee was:
(i) To enquire into the incident and ascertain sequence of events.
(ii) Identify any lapses that may have taken place, and
(iii) On the basis of the findings, recommend actions to be initiated
by the University as per its statutes and guidelines.
27. It was contended by her, that the Petitioner was given ample
opportunities to appear and depose before the committee along with
the liberty to carry materials and evidences in her defense. That the
Committee issued their First Notice on February 18, 2016 and
subsequently Second and Third Notice on February 19, 2016 and
February 24, 2016 respectively to the Petitioner, directing him to
appear before the committee and explain his position about the
incident that took place on February 09, 2016 near Sabarmati and
Ganga Hostel. Despite this the Petitioner failed to appear before the
committee. The above mentioned notices were dispatched via the
Central Dispatch of the University which is an independent
department within the University. She would state, the notices were
served at all his known addresses including his Hostel room and
email-id. Further, as per the Hostel Manual of the University
concerning Norms governing Hostel Life Chapter 2, Clause 2.5.3,
states that-"A resident who wishes to stay out late or remain absent
overnight shall inform the warden concerned in the prescribed form."
However, there was no intimation on behalf of the Petitioner until
21.02.2016 that he would not be available in the hostel nor has he
mentioned from what date he left the hostel.
28. Ms. Routray reiterates, despite notices being served, the
Petitioner still failed to appear before the Enquiry Committee. The
Petitioner's defense of not joining the enquiry was that he was out of
campus due to some health issues and would contact the Respondents
once he was back. Further, on February 29, 2016, the Chief Proctor of
the University had sent an Email asking when he would return back to
the campus, to which the Petitioner had replied that he had been
advised complete bed rest for 2 weeks and hopefully would be back
after March 10, 2016. Thus, the Petitioner himself lost the opportunity
to appear before the committee and clear his stand.
29. According to her, meanwhile, one week extension i.e. upto
March 03, 2016 to submit the recommendations was granted to HLEC.
Thereafter the term of the Enquiry Committee was further extended
till March 11, 2016. The HLEC followed Standard Operating
Procedures devised by the HLEC specifically for the said enquiry
during the course of enquiry. The HLEC spent considerable time in
examining all the evidences pertaining to the event which included
taking written depositions of eye witnesses and security officials,
posters, SMS withdrawing consent to hold Anti-National event, form
for seeking permission, examining the video clips submitted by JNU
Security Office and scrutinizing various documents/posters related to
the incident. The video submitted to the Committee by the CSO was
duly authenticated by a Government approved agency: Truth Labs,
Bangalore. Subsequent to enquiry procedure, the HLEC recommended
that the Petitioner be charged under Category II of (Rules of
Discipline and Proper Conduct of Students of JNU) of the statutes of
the University and be rusticated for 2 Semesters. The HLEC
submitted its report along with recommendations to the Vice-
Chancellor on March 11, 2016.
30. She would submit, the HLEC gave ample opportunities to the
Petitioner and after repetitive reminders and notices the Petitioner
chose not to appear. According to her, the recommendation for
disciplinary action was based on the findings of the HLEC. The
HLEC recommended charges as well as punishment as per the statutes
and guidelines of JNU. The Chief Proctor, after perusing the report of
the HLEC, issued a Show Cause Notice on March 14, 2016 and along
with an extension dated March 16, 2016 along with a copy of HLEC
report to the Petitioner. The Show Cause Notice stated that-
As per the High Level Enquiry Committee findings, you (Mr.
Mujeeb Gattoo, Registration Number: 57205, Enrolment No:
12/66/MS/011, Year of Admission: 2012, M.Phil/PhD. Student,
Zakir Hussain Centre for Educational Studies, School of Social
Science, JNU, New Delhi) have been found guilty on the
following accounts under the Clause 3, Category II of Rules and
discipline and proper conduct of students of JNU.
(ix) Arousing communal, caste or regional feeling or
creating disharmony among students
(xxv) Any other act which may be considered by the VC
or any other competent authority to be an act of
violation of discipline and conduct
During the incident which took place on 09 Feb 2016 in the JNU
campus. You are hereby asked to ex plain why disciplinary
action should not be initiated against you for indulging in the
above act.
Your reply must reach the Chief Proctor‟s Office latest by 16
Mar 2016, 1700 hrs, failing which it will be presumed that you
have nothing to say in your defense and this office will proceed
further in the matter.
31. Ms. Routray would state, the Petitioner again vide his Email
dated March 16, 2016, to the Chief Proctor and the Vice-Chancellor of
the University acknowledged that the notification from the HLEC was
received by the Chairperson of his Department and sought time till
March 17, 2016 to reply, he further stated that he was attending a
conference. On March 17, 2016, the Petitioner with respect to the
Respondent's Email dated March 14, 2016 stated that he had not been
provided a copy of the Show Cause Notice issued to him. The
Petitioner also stated that he had not been given a fair opportunity to
be heard and that the Principles of Natural Justice have not been
complied with. He further stated that he had been found guilty
without following the due process of law. According to Ms. Routray,
the Petitioner was called multiple times and numerous opportunities
were given to him to appear and depose before the committee but the
Petitioner chose to avoid the proceedings thus, leaving the Respondent
with no other remedy but to go ahead and issue a Show Cause Notice.
She would state, it is therefore clear that the petitioner was never
interested in joining the enquiry. The Chief proctor even extended the
time till March 18, 2016 for replying to the Show Cause Notice to
enable the Petitioner to reply to the same.
32. The Respondent subsequently on April 25, 2016, after more
than a month, passed an office order wherein it was stated that-
With reference to the 9 February 2016 incident of JNU
campus, the High Level Enquiry Committee (HLEC) has
found Mr. Mujeeb Gattoo (Registration Number- 57205,
Enrolment No: 12/66/MS/011, Year of Admission: 2012,
M.Phil./Ph.D. Student, Zakir Hussain Centre For
Educational Studies, School Sciences and a r/o. Room
No.137, Kaveri Hostel) guilty on the following counts.
The university „Rules and discipline and proper conduct of
students of JNU', Clause 3- „Categories of misconduct and
indiscipline‟, Category-II, Sub- Category (ix) prohibits
„Arousing communal. Caste or regional feeling or creating
disharmony among students‟.
As per the HLEC recommendation, Mr. Mujeeb Gattoo has
been found guilty of
a) Participating in the objectionable sloganeering during
the event
The University 'Rules and discipline and proper
conduct of students of JNU', Clause 3- „Categories of
misconduct and indiscipline‟, Category-II, Sub-Category
(xxv) prohibits „Any other act which may be considered
by the VC or any other competent authority to be an act
of violation of discipline and conduct‟.
As per the HLEC recommendation, Mr. Syed Umar
Khalid had been found guilty of
(a) being the part of the procession from Sabarmati
ground to Ganga Dhaba during which objectionable
slogans were shouted.
(b) being the part of the group in which many outsiders
were present, whereas the total number of
participants mentioned in the booking form were
seven only.
These charges on the part of Mr. Mujeeb Gattoo are
very serious in nature, unbecoming of a student of
JNU and calls for stringent disciplinary action
against him.
The Vice-Chancellor, in exercise of his powers vested
in him under Statute 32(5) of the Statutes of the
University, has ordered that Mujeeb Gattoo be
rusticated for both monsoon and winter semesters
2016-2017.
His name shall stand removed from the rolls of the
University forthwith.
The re admission of Mr. Mujeeb Gattoo in the
University after the expiry of the rustication period
shall be subject to his conduct during this period.
33. As per the HLEC Report the presence of a group of outsiders
was noted by the Security staff and confirmed by many other eye
witnesses. This group of people were shouting the following slogans:
"Kashmir ki azadi tak, jang rahegi, jang rahegi", "Bharat ko ragda, de
ragda", "zor se ragdo, de ragda", "Aeen Hindustan ka, manzoor nahi,
manzoor nahi", "Go India go back", "we want freedom". The
Petitioner was seen sloganeering along with this group. As per the
depositions the following slogans were also made by this particular
group "Hum kya mange azadi", "Indian army murdabad", "Pakistan
zindabad", "Bharat ki barbadi tak, jung rahegi", "Kitne maqbool
maroge, ghar ghar se maqbool niklega", "JNU prashasan murdabad",
"Kashmir ki junta jung karo, hum tumhare sath he". The Petitioner
was further witnessed raising the slogans "hum kya chahte hai azadi",
"hum cheen ke lenge azadi". Further, in Q6 vide clip, the Petitioner is
seen raising slogans, "hum kay chahti hain azadi", "hum cheen ke
lenge azadi". She would state, Q8 video clip was relied upon till 1
minute 19 seconds as a sudden shift in the noise floor was found and
further there were abrupt changes in the pitch and intensity contours
thereafter. She would also state, the Petitioner was called, as the
HLEC wanted to seek clarifications regarding the event but on
studying the evidence, the HLEC noted the role of the Petitioner. He
was very much present at the event and had even participated and
sloganeered (which the Petitioner admits). Thus, the Petitioner was
charged as per the Office Order dated April 25, 2016 and rusticated
for both monsoon and winter semesters 2016-2017.
34. Further, in his appeal dated May 17, 2016 the Petitioner only
raised points on views taken by the HLEC and challenged the setting
up of the same without giving any defense with respect to the events
which unfolded on February 09, 2016. He did not controvert the
findings of the HLEC, nor does he deny shouting the slogans. He had
himself lost the opportunity to defend himself by not even responding
to the simple queries raised by the Appellate Committee. The
Petitioner claimed that he was never given the complete HLEC Report
nor copy of the documents such as deposition of witnesses etc, used
by the HLEC to recommend the punishment imposed. However, the
Petitioner in his letter dated March 17, 2016 admits to have accessed
the complete HLEC Report. Further, it is her submission that this is
the first time the Petitioner had demanded for copies of documents and
had never done so until Office Order dated April 25, 2016 was passed.
According to her, the reliability of documents before a Quasi-Judicial
Authority is not the same as in criminal/civil matters; even probable
evidence is taken note of. She referred to the judgment of the
Supreme Court in M.V. Bijlani Vs. UOI & Ors. (2006) 5 SCC 88.
35. She submitted, this Court vide Order dated May 13, 2016
directed that the Order shall not be given effect till the appeals of the
petitioners are heard and disposed of. Subsequently, the Petitioner
was given provisional admission to continue in the present semester
keeping in view of the Order dated May 13, 2016 of this Court. The
Petitioner filed an appeal dated May 17, 2016 before the Vice
Chancellor wherein the Petitioner sought revocation of the Office
Order No.145/CP/2016 dated April 25, 2016. The Respondent
requested the Petitioner to appear before the Vice Chancellor, JNU on
June 16, 2016 at 11:30 am at the VC's office to which the Petitioner
replied that it is difficult for him to travel as only one day is left and
due to tourist season in Kashmir, the tickets would be very expensive
and thus, requested to depose in the next week so that travel
arrangements could be more convenient and affordable. He also
mentioned that if not possible for the next week, he would depose on
June 16, 2016 itself. The Petitioner did appear before the committee
on the said date. Some of the parties who had failed to appear before
the Appeals Committee on the said day were permitted to do so on
July 04, 2016. Hence, great effort was made by the Appeals
Committee to ensure that adequate opportunity was accorded to all the
parties and were given substantial time to make their representations
based on the Show Cause Notice and HLEC Report before the
Appeals Committee.
36. That the Respondent finally issued the Office Order
No.201/CP/2016 dated August 22, 2016 wherein the Petitioner was
rusticated for 2 semesters (i.e., Monsoon and Winter Semester, 2016-
2017). It was stated that Mr. Gattoo initially argued that he did not
raise any slogans but after the committee confronted him with
authenticated video evidence he responded by saying that whether it
was objectionable to raise the slogans which he had raised and to who
these slogans were objectionable. Further, in his Appeal dated June
16, 2016 the Petitioner stated that before I was about to leave, I was
shown a video, in which I am present, uttering slogan hum kya chahte
Azadi, Hum cheen ke lenge Azadi. In its response I reiterate that I be
provided a material of the authenticity of video and what is
objectionable to in the slogans and to whom? Further, the Petitioner
did not make any specific appeal to absolve himself from the charges
made by the HLEC but instead questioned the formation of the HLEC.
Therefore, the committee considered the recommendation of the
HLEC highly justifiable.
37. That the University's autonomy means its right of self-
government particularly, it's right to carry on its legitimate activities
without interference from any outside authority. That the petitioner
against whom charges were framed was given adequate opportunities
to defend himself, and the committee followed the rules of natural
justice while holding the enquiry. That it is a settled law that matters
falling within the jurisdiction of educational authorities should
normally be left to their decision and this Court would not interfere
unless it thinks it must do so in the interest of justice. She stated, this
Court in Jawaharlal Nehru University V. Flora Gupta, LPA
570/2012 & CM No.14010/2012 held that-
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 or such 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.
38. That the Respondent has acted within their authority, exercised
their judgment in good faith, and followed the applicable laws. The
constitutional provisions, the provisions of the Act, the Statute and the
Ordinances and the principles of natural justice have been complied
with by the Respondent. The Petitioner was served with notices at his
hostel, in his various addresses and was asked to show cause and was
also given opportunity to defend himself before the enquiry
committee. The Petitioner deliberately avoided proceedings on the
pretext of being unwell and out of town. He claimed it as a justified
reason for not attending the enquiry proceedings. This conduct of the
Petitioner does not attract any empathy from the authorities and this is
only a ploy to gain political mileage out of these proceedings. The
Petitioner was given ample opportunity to defend but he himself lost
the opportunity by not even responding to the simple queries raised by
the Appellate Committee.
39. She would submit, that only certain documents relied upon by
the HLEC were filed before this Court and the entire evidences,
documents, notices and proceedings are maintained by the Respondent
in its official files. The same are available for any other scrutiny as
and when the same may be requisitioned by this Court.
40. She would state, the Legal Submissions made and judgments
relied upon in Umar Khalid V. JNU, W.P. (C) 7826/2016 and Anirban
Bhattacharya V. JNU, W.P. (C) 7828/2016 may be read as part and
parcel of the present submissions. The judgments relied upon by her
are:-
(i) K.L. Tripathi v. State Bank of India and Ors 1984 (12) SCC
43;
(ii) State of Gujarat v. Pagi Bhura Bhai Rumal Bhai AIR 1969
Gujarat 260;
(iii) Ajeet Seeds Ltd. V. K. Gopal Krishnaiah 2014 (1) SCC 685;
(iv) Chief Commissioner of Income Tax (Administration)
Bangalore v. V.K. Gururaj and Ors. 1996 (7) SCC 275;
(v) State of Punjab v. Bakhshish Singh 1997 (6) SCC 381;
(vi) Suresh Koshy George v. University of Kerala AIR 1969 SC
198;
(vii) State Bank of Patiala v. S.K. Sharma 1996 (3) SCC 36;
(viii) Ram Chander Roy v. Allahabad University AIR 1956 ALL 40;
(ix) V. Ramana v. APSRTC & Ors 2005 (7) SCC 335;
In view of the above facts and circumstances, she prayed for the
dismissal of the writ petition.
41. Having heard the learned counsel for the parties and perused the
written arguments/submissions submitted by the counsels, it is noted
that the subject matter of this petition is, the orders passed by the
Competent Authority on April 25, 2016 whereby the petitioner was
imposed a penalty of rustication for both the Monsoon and Winter
semester 2016-2017 with a direction that his name shall be removed
from the Rolls of the University forthwith, which penalty was upheld
by the Appellate Authority on August 22, 2016 with a direction to
give undertaking. The enquiry relates to the events held on February
09, 2016 at the University Campus. The grounds of challenge by the
petitioner are that the same was held without following the due
process and in contravention of the well established principles of
natural justice and the detailed guidelines for enquiries as they come
under Statute 32(5) of the Statutes of the University. The charges
were not explained, materials against him were not made available, no
opportunity to cross examine was given. The finding of the HLEC is
perverse. Even the procedure adopted by the Appellate Authority was
in total disregard to the principles of natural justice. The Appellate
Authority had falsely claimed that the petitioner was given ample
opportunity to examine all the materials before he could write his
appeal. Despite the petitioner asking that he be given material, so as
to enable him to evaluate and provide answers to the same the request
was not accepted. The production of the documents at the appellate
stage was only formality to show due process was being followed
whereas the Appellate Authority had no intention to allow the
petitioner to access the materials against him. It is also the ground of
the petitioner that the freedom of speech and expression is a salient
right guaranteed by the Indian Constitution and without admitting that
the allegations are true, the same fall within the realm of protected free
speech.
42. On the other hand, the respondent has justified the impugned
action contending that the enquiry proceedings were held following
the principles of natural justice and the Rules/Statutes. It is the
petitioner, who failed to come forward and depose before the
Authority. That apart, the respondent also highlighted the seriousness
of the charges for which the petitioner was held guilty. The petitioner
had never intended to appear and depose before the Authority. That
apart, the appellate proceedings were held after giving due opportunity
to the petitioner to inspect the documents and after inspection of the
documents and upon hearing and inability of the petitioner to answer
the queries put by the Appellate Authority, the appellate order was
passed.
43. There is no dispute that the petitioner had filed an Appeal dated
May 17, 2016 pursuant to the directions given by this Court in earlier
round of litigation filed by the petitioner on May 13, 2016. It is a
conceded fact that the Vice Chancellor-Appellate Authority had held
its meeting on June 16, 2016. There is also no dispute that the
petitioner was shown the record of the enquiry. The parties are at
variance about the duration for which the record was shown. It is a
conceded fact that a hearing was given to the petitioner on the same
day, which resulted in the passing of the appellate order on August 22,
2016. In his appeal dated May 17, 2016, the petitioner has stated that
basis for punishment is factually inaccurate. It was his stand that he
did not participate in organizing the event. He was not party seeking
permission for the event. He has not been given the materials on the
basis of which the HLEC has concluded that he was one of the
organizer of the event. The show cause notice did not specify the
charge against him nor any material by which it was proposed to be
established, was shown. The enquiry against him had violated the
Statutes and the relevant Rules of the University. The HLEC report
was truncated as he was given only eight pages. It was only the
report, which was shared with him, not the corresponding annexures,
depositions, statement of witnesses. He states, that the finding of the
HLEC is perverse. Neither the HLEC report nor the order dated April
25, 2016 shows application of mind. In the end, he states that without
any opportunity to study the evidence and depositions against him, he
is prejudiced.
44. Clause 12 of the Norms and Procedure followed during enquiry
stipulates that every punished student has a right to appeal. In the case
in hand, after this Court had passed the order on May 13, 2016 in the
earlier writ petition filed by the petitioner, the respondent University
issued a communication dated June 13, 2016 asking the petitioner to
appeal to the Vice Chancellor and depose on June 16, 2016. The
petitioner filed the appeal on May 17, 2016. The communication does
not refer to the fact that the petitioner shall be given the relevant
record/documents for inspection. Be that as it may, the learned
counsel for the parties agree that the files/records/documents before
the HLEC were given to the petitioner on June 16, 2016 to enable him
to peruse the same and make submissions on the same day. Even
assuming, three hours were granted to the petitioner to inspect the
documents on June 16, 2016, some time need to have been granted to
the petitioner to apply his mind on the evidence so noted by him
during the inspection, which was against him and to make an effective
appeal. Surely, for such purposes, he may have required reasonable
time to prepare his case, which may include seeking legal advice.
The procedure evolved by the Appellate Authority to allow inspection
of the documents/records and hearing him could not be in conformity
with the principles of natural justice and the law laid down by the
Supreme Court in the case of Associated Cement Company Ltd. v.
Workmen and another (1964) 3 SCR 652, wherein the Supreme
Court was considering an appeal arising out of an industrial dispute
between the appellant and the respondent workman with regard to
dismissal of five workmen employed by the appellant company. One
of the issue was that before the enquiry was actually held on June 11,
1952, notice was not given to Malak Ram, one of the workmen telling
him about the specific date of the enquiry. The Supreme Court held
that failure to intimate to the workman concerned about the date of the
enquiry may, by itself, not constitute an infirmity in the enquiry, but,
on the other hand, it is necessary to bear in mind that it would be fair
if the workman is told as to when the enquiry is going to be held so
that he has an opportunity to prepare himself to make his defence at
the said enquiry and to collect such evidence as he may wish to lead in
support of his defence. The Supreme Court held, on the whole, it
would not be right that the workman should be called on any day
without previous intimation and the enquiry should begin
straightaway. The Supreme Court held, such a course should
ordinarily be avoided in holding domestic enquiries. In other words,
the Supreme Court has held that an incumbent should be given
sufficient opportunity/time to consider the evidence, which has come
against him and to collect evidence in support of his defence. In the
case in hand, no such time was given to the petitioner. That apart, if
the material is being shown to the petitioner, on June 16, 2016, surely,
some time should have been given to the petitioner to enable him to
supplement his appeal already filed by him on May 17, 2016. This
would be in conformity with the concept of fair play in action, which
is the basis of natural justice. That apart, even in these proceedings,
the respondent has not filed on record, the complete record of the
HLEC. In fact, a stand has been taken in the written submissions that
only certain documents relied upon by HLEC were filed before this
Court and the entire evidence, documents, notices and proceedings are
maintained by the respondent in its official files. The same are
available for any other scrutiny as and when the same are
requisitioned before the Court. Even if some depositions are filed
along with the written arguments in some cases, the same are in Hindi.
Even otherwise, the HLEC report refers to deposition of some eye
witnesses, which are in the deposition files. It is not clear, who these
witnesses are, who are being referred to. All the evidence, documents,
notices and proceedings being in the official files, there was no
occasion for this court/counsel for the petitioner to look into the same
for a proper appreciation/justification of the impugned orders.
45. The petitioner in his appeal dated May 17, 2016 has stated that
the punishment imposed is grave and completely jeopardized his
education and career prospects. The finding of guilt of arousing
communal feeling was based on certain vague charges. The show
cause notice was silent on the aspect of his conduct. The show cause
notice was not accompanied by full copy of HLEC report, much less
deposition of witnesses and other material on which, the charges were
founded. There was a complete refusal on the part of the respondent
to grant him any time to even submit a cursory explanation. As he
was not given the material, he could not defend himself. Major
portion of the HLEC report was concealed. The provisions of Statute
32(5) of the Statutes of the University have not been followed. The
provision of appeal in the Regulations becomes illusory if the student
is not aware of what persuaded the Disciplinary Authority after the
show cause notice and the reply thereto, in its decision to sustain a
finding of guilt and award a penalty. He denied of having raised any
objectionable slogans and the finding against him are false and
baseless. He also stated, that the penalty is grossly disproportionate
even to the charges as stated.
46. Further, from the reading of the order dated August 22, 2016, it
is seen that the Appellate Authority has not dealt with the said
grounds. The Supreme Court in the case reported as (2013) 6 SCC
530 Chairman, Life Insurance Corporation of India and others v. A.
Masilamani, in para 19 held as under:-
"19. The word "consider", is of great significance. The dictionary
meaning of the same is, "to think over", "to regard as", or "deem to
be". Hence, there is a clear connotation to the effect that, there must
be active application of mind. In other words, the term "consider"
postulates consideration of all relevant aspects of a matter. Thus,
formation of opinion by the statutory authority, should reflect intense
application of mind with reference to the material available on record.
The order of the authority itself, should reveal such application of
mind. The appellate authority cannot simply adopt the language
employed by the disciplinary authority, and proceed to affirm its
order. (Vide: Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006)
11 SCC 147; and Bhikhubhai Vithlabhai Patel & Ors. v. State of
Gujarat & Anr., AIR 2008 SC 1771).
Suffice to state, in view of the aforesaid judgment of the Supreme
Court, it is expected that the Appellate Authority should have disposed
off the appeal by a reasoned and speaking order. This I say so, there is
nothing in the Rule, relating to appeal which says otherwise i.e it is
not necessary for the Appellate Authority to pass a reasoned order.
47. Insofar as the judgments relied upon by Ms. Routray are
concerned, in K.L. Tripathi (supra), the issue, which fell for
consideration was with regard to a challenge to the departmental
enquiry by an employee on the ground that he was not provided
opportunity to cross examine. The Supreme Court held that in the
absence of any lis as to the facts, allegations having been not disputed
by the delinquent officer, no prejudice has been caused.
48. The issue, which has been considered by me in the
aforementioned paras is only with regard to, whether sufficient
opportunity was given to the petitioner to inspect the documents at the
appellate stage and then submit an appropriate appeal after the
inspection, so as to make the appellate proceedings meaningful and
purposeful. Hence, the judgment would have no relevance.
49. Insofar as the judgment in the case of State of Gujarat v. Pagi
Bhurabhai Rumalbhai (supra), is concerned, in the said case the
Gujarat High Court held that the delinquent has no right to seek a
personal hearing at the appellate stage. In the case in hand, the
personal hearing having been agreed to and granted by the University,
it cannot be contended by Ms. Routray that the personal hearing was
not required.
50. In Ajeet Seeds Limited (supra), para 10 on which the reliance
was placed, relates to a conclusion with regard to Section 114 of the
Evidence Act, which enables the Court to presume that in common
course of natural events, a communication made would have been
delivered at the address of the addressee. A reference was made to
Section 27 of the General Clauses Act, which gives rise to
presumption that service of notice has been effected when it is sent to
the correct address by registered post. The said judgment has no
applicability on the limited issue being considered and decided by this
Court.
51. In Hira Nath Mishra and others v. The Principal, Rajendra
Medical College, Ranchi and another (1973) 1 SCC 805, the
Supreme Court was concerned with a case where the appellants, the
male students of a Medical College lived in the College hostel. A
confidential complaint was received by the Principal from thirty six
girl students residing in the Girls Hostel of the College alleging that
the appellants with some others at late night had entered into the
compound of the Girls Hostel and walked without clothes on them.
The Principal constituted an Enquiry Committee consisting three
Members of the staff. The identification through photographs was
carried out and the Girls by and large could identify the appellants
from the photographs. The appellants were called before the
Committee one after the other. They were explained the contents of
the complaint. Due care was taken not to disclose the names of the
Girls, who made the complaint. The appellants denied the charges and
said they were in the Hostel at that time. The Supreme Court held as
under:-
(i) The complaint made to the Principal related to an
extremely serious matter as it involved not merely
internal discipline but the safety of the girl students
living in the Hostel under the guardianship of the
college authorities. These authorities were in loco
parentis to all the students-male and female who were
living in the Hostels and the responsibility towards the
young girl students was greater because their
guardians had entrusted them to their care by putting
them in the Hostels attached to the college. The
authorities could not possibly dismiss the matter as of
small consequence because if they did, they would have
encouraged the male student rowdies to increase their
questionable activities which would, not only, have
brought a bad name to the college but would have
compelled the parents of the girl students to withdraw
them from the Hostel and, perhaps, even stop their
further education. The Principal was, therefore, under
an obligation to make a suitable enquiry and punish
the miscreants.
(ii) The Police could not be called in because if an
investigation was started the female students out of
sheer fright and harm to their reputation would not
have cooperated with the police. Nor was an enquiry,
as before a regular tribunal, feasible because the girls
would not have ventured to make their statements in
the presence of the miscreants because if they did, they
would have most certainly exposed themselves to
retaliation and harassment thereafter. The very
reasons for which the girls were not examined in the
presence of the appellants, prevailed on the authorities
not to give a copy of the report to them. It would have
been unwise to do so.
(iii) Therefore, the authorities had to devise a just and
reasonable plan of enquiry which, on the one hand,
would not expose the individual girls to harassment by
the male students and, on the other, secure reasonable
opportunity to the accused to state their case. The
course followed by the Principal was a wise one.
(iv) Under the circumstances of the case, the
requirements of natural justice were fulfilled, because
principles of natural justice are not inflexible and may
differ in different circumstances."
From the above, it is noted that, keeping in view the nature of
allegations against the male students; to protect the identity of the
complainants, the girl students, the Supreme Court had upheld, the
nature of enquiry conducted by the University as being in compliance
with the principles of natural justice. The aforesaid judgment of the
Supreme Court has no applicability in the facts of this case and also on
the limited issue that is being decided by this Court.
52. Insofar as the judgment of the Supreme Court in the case of
Suresh Koshy George (supra) is concerned, in para 7 on which
reliance was placed by Ms. Routray, the Supreme Court was
considering a submission that the Vice Chancellor had not made
available to the appellant a copy of the report submitted by the Inquiry
Officer before asking him to make a representation. The Supreme
Court rejected the contention by holding that the enquiry was held
after due notice to him and in his presence. He was allowed to cross
examine the witnesses examined in the case and he was permitted to
adduce evidence in rebuttal of the charge. The Supreme Court also
held, no Rule was brought to its notice, which stipulated the supply of
report. The Supreme Court also observed that it was not the case of
the appellant that he had asked for the copy of the report, which was
denied to him. The judgment relied upon by Ms.Routray is
distinguishable, inasmuch as the petitioner did not participate in the
proceedings/the proceedings were held in his absence. Further, the
Appellate Authority itself has offered to allow inspection of the
documents/record of HLEC. The petitioner had asked for the
documents/record/material in his appeal dated May 17, 2016. The
Appellate Authority having allowed the inspection, reasonable time
should have been given to the petitioner to supplement the appeal
already filed by him on May 17, 2016. The judgment has no
applicability, at least on the limited issue that is being decided by this
Court.
53. Insofar as the judgment of the Allahabad High Court in the case
of Ram Chander Roy (supra) wherein reliance was placed on paras
24 and 25, relates to the power of the Vice Chancellor to impose any
punishment in maintaining the discipline of the University. There is
no dispute on the said proposition of law. Insofar as the plea that the
right of cross examination was denied is concerned, the High Court
held that it was not convinced that in a case where Head of an
Educational Institution takes disciplinary proceedings, it is necessary
that he must give an opportunity to the student to cross examine the
witnesses, who may be examined by him in order to satisfy himself
that an occasion has arisen for taking disciplinary action against him.
In matter of discipline, the Head of Educational Institution does not
act as a judicial or a quasi judicial Tribunal. The Disciplinary power
vested in any Officer or the Head of an Institution is a power which is
absolutely necessary for and ancillary to the exercise of administrative
functions in that capacity. Suffice to state, 32(5) of the Statutes of the
University lays down the procedure. In any case, as stated above, on a
limited issue, which is being decided, this judgment would not have
any applicability.
54. In State Bank of Patiala and Others v. S.K. Sharma (supra),
Ms. Routray who relied upon para 35 to contend that no prejudice has
resulted to the petitioner on account of non furnishing him the copy of
the statements of witnesses as it cannot be said that he did not have a
fair hearing is concerned, there is no dispute on the proposition, in
view of the position of law noted above, but the limited time given by
the Appellate Authority to the petitioner to inspect the
documents/material/record and to give a hearing on the same day
would not be in conformity with the principles of natural justice.
Surely, the Authority empowered under the Statute is required to give
a reasonable opportunity to make the very purpose of the power being
exercised by such Authority meaningful.
55. Insofar as State Bank of Punjab and others v. Bakhshish
Singh (supra) is concerned, there is no dispute that the Court cannot
sit as an Appellate Authority over and above the conclusion of the
Disciplinary Authority that a particular act was a gravest act of
misconduct warranting dismissal. As stated above, on the limited
issue that is being decided by this Court, this judgment would have no
relevance.
56. Insofar as Chief Commissioner of Income Tax
(Administration), Bangalore v. V.K. Gururaj and others (supra) is
concerned, the said judgment is on the proposition of deemed service,
which in any case has no applicability for the reasons already stated.
57. Insofar as the judgment in the case of V. Ramana v. APSRTC
and Ors (supra) is concerned, the same relates to the issue of judicial
review with regard to punishment. The same has no applicability in
view of limited issue that is being decided by this Court.
58. Insofar as the reliance placed by Ms. Routray on the judgment
of M.V. Bijlani (supra) is concerned, in view of the limited issue that
is being decided by this Court, this judgment would have no
relevance.
59. In view of my above discussion, the writ petition is allowed to
the extent that the Appellate Order dated August 22, 2016 is set aside
and the matter is remanded back to the Appellate Authority with a
direction to grant an opportunity of inspection to the petitioner, the
record of the HLEC for continuous two days during office hours only
by notifying the date and time to the petitioner for the same and upon
such inspection, the petitioner shall have one week time to file a
Supplementary Appeal, upon which the Appellate Authority shall give
a hearing to the petitioner on a date and time fixed by the Appellate
Authority, who thereafter shall, by considering the appeal(s) already
filed by the petitioner and the Supplementary Appeal, if any, pass a
reasoned order as expeditiously as possible preferably within six
weeks thereafter. Till such time, the order dated April 25, 2016 shall
not be given effect to. It is also made clear in view of the undertaking
given by the petitioner in earlier writ petition the petitioner shall not
indulge in any strike or dharna or agitation or coercive action in future
in connection with the issue, till such time the proceedings between
the parties attain finality. No costs.
CM No. 32966/2016 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
OCTOBER 12, 2017/ak
