Delhi High Court
Chintu Kumari 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) 7936/2016, CM No. 32957/2016
CHINTU KUMARI
..... Petitioner
Through: Ms. Suroor Mander, Adv.
Versus
JAWAHARLAL NEHRU UNIVERSITY
..... Respondent
Through: Ms. Ginny J. Routray, Ms.
Anushka Ashok & Ms. Bhavna
Pal, 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:-
"Petitioner respectfully prays that this Hon‟ble Court may
be pleased to:-
(i) issue a writ in the nature of certiorari quashing the
impugned order vide Office Order No. 209/CP/2016 dated
22 August 2016 by the Chief Proctor of the University
imposing punishment on Petitioner No.1 of a fine of
Rs.5,000/- (Rupees Twenty Thousand Only) and the
requirement of furnishing an undertaking; and
ii). Issue a writ in the nature of Certiorari quashing the
Order No. 157/CP/2016 dated 25 April 2016 by the Chief
Proctor of the University imposing punishment on
Petitioner and to declare the proceedings resulting in such
punishment as void being violative of the fundamental and
constitutional rights of the Petitioner; and
iii). Pass such further order or orders as this Hon‟ble
Court may deem fit."
2. This Writ Petition seeks quashing of the order dated August 22,
2016 which is the order of the Appellate Authority (Vice Chancellor)
of the Jawaharlal Nehru University through which the Petitioner has
been punished with a fine of Rs. 5,000/- (Rupees Five Thousand Only)
[initially Rs.20,000/- (Rupees Twenty Thousand)] and has been
ordered to file an undertaking in a prescribed format.
3. The facts as contended by Ms. Suroor Mander, learned counsel
for the petitioner are, the Petitioner is a student pursuing her M.Phil, at
the Centre for Political Studies, School of Social Science, having
completed her M.A. from Jawaharlal Nehru University. Petitioner has
been punished for 'participating in the organisation of the event' on
February 9, 2016 at the JNU campus where some 'objectionable
slogans' were allegedly raised, which the Petitioner has consistently
denied and she and the student's union have categorically condemned
such slogans. The High Level Enquiry Committee (hereinafter HLEC)
had sent notices to the Petitioner seeking her presence before the
Committee and asking her to bring evidence to defend herself. At no
point was the Petitioner informed of the exact charges against her. In
response to the notices the Petitioner had on February 25, 2016 and
February 26, 2016 had written to the HLEC denying raising alleged
"anti- national" slogans and asked them to share the details of the
charges and provide her with the evidence so that she can prepare her
defence. However, the High Level Committee did not respond to the
Petitioner's letters or share the evidence so that the Petitioner could
mount a cohesive defence. Without responding to the issues raised in
above dated letters submitted by the Petitioner, on 14 March 2016, the
High Level Committee issued her a Show Cause Notice finding her
guilty of "(xxv) Any other act which may be considered by the VC or
any other competent authority to an act of violation of discipline and
conduct" which is residual clause available to the Vice Chancellor. It
is contended by Ms. Mander, the Petitioner was not charged with
organizing the meeting, or of raising slogans. Neither description of
the conduct by which she did any of this, nor the details of what
material was there in support thereof was supplied to the petitioner.
4. According to her, the Petitioner was provided a truncated copy
of Report of the High Level Committee two days after the Show cause
notice was served on the Petitioner. The Petitioner despite all the
infirmities filed a reply to the show cause notice on March 18, 2016.
In this reply too, the Petitioner placed on record the completely
inadequate material given to her for defence, the lack of clarity on the
conduct upon which the charges were based and the complete denial
of all the material evidence. She stated, she also denied all the charges
levelled against her. Again without acknowledging or responding to
the issues raised by the Petitioner or providing any of the materials
relied upon by the Committee, the Proctor vide Order No.
157/CP/2016 dated April 25, 2016 issued by the Chief Proctor was
served upon the petitioner imposing punishment of Rs.20,000/-
(Rupees Twenty Thousand) for (a) organising the event at Sabarmati
ground; (b) shouting objectionable slogans in wrongfully organised
event.
5. She submitted, the Petitioner was punished for charges that
were neither raised in the show cause notice nor the Report of the
High Level Committee. Despite the fact that the Punishment Orders
were issued with the approval of the Appellate Authority (the Vice
Chancellor), the Petitioner filed an appeal under Clause 32 (5) of the
Statute to the Vice Chancellor against the punishment on 02 May
2016. The Petitioner along with others filed Writ Petition 4398 of
2016 before this Court seeking quashing of the punishment order.
This Court disposed off the Petition as the Appeals filed by the
Petitioner and others were pending before the Appellate Authority of
the University. This Court also stayed the operation of the Appellate
Authority's order for two weeks to allow for the same to be challenged
before this Court. On June 16, 2016, the Petitioner was called upon by
the Appeals Committee for the hearing. The Petitioner was not
provided any material against her prior to the hearing and only
provided the evidence at the time of hearing. This was a voluminous
file which she was asked to inspect on the spot and which she was
naturally unable to inspect. Petitioner later came to know that video
recordings were shown to others during the hearing but no video
recordings were shown to her. Petitioner was then asked to write an
'appeal' on the spot, during the hearing, thereby completely ignoring
the Appeal already filed by her. Essentially, when one of the major
grounds of appeal by the Petitioner was that she was never made
aware of the evidence against her, the Appellate Authority allowed her
a cursory examination of the material only during the hearing and told
her to write a statement which was treated as the Appeal, discarding
the actual Appeal filed by the Petitioner after due thought and legal
assistance. This procedure is unheard of, and for the reason that it
violates every principle of natural justice. According to Ms. Mander,
petitioner had also pointed out in her appeal that, if there were any
witnesses against her, she should have been given the chance to
question them. The lack of opportunity to cross-examine witnesses
during disciplinary proceedings by the Respondent as earlier been held
to be a violation of the principles of natural justice by this Court in
Jawaharlal Nehru University v. Flora Gupta (2013) 133 DRJ 299
(DB), wherein according to her, this Court had observed about
disciplinary proceedings held by the Respondent University that "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 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." Ms. Mander submitted, the Appellate Authority has proceeded
precisely on such an invalid presumption that the statement of a
witness before the Enquiry Committee could be nothing but the truth.
No avenue of cross-examination or even traversal of such statements
has been provided to the Petitioner by the Respondent University. She
submitted, the order of the Appellate Authority is bad for non-
application of mind especially because it does not even advert to the
grounds raised in the Appeal by the Petitioner or to the grounds raised
by the Petitioner in Writ Petition (Civil) No. 4398/2016 through which
the Petitioner had challenged the original order of punishment passed
by the High Level Enquiry Committee of the Jawaharlal Nehru
University. The following grounds of Appeal have also not been
considered by the Appellate Authority at all, which amounts to
complete non-application of mind:
i). No specific charge was framed against the Petitioner as required by
Rule 7 of the Norms and Procedures. In fact, the Petitioner was
punished for participation in organizing the event but the original
show cause did not mention this allegation at all. The Petitioner was
punished under the residuary clause, that is, "(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." Petitioner has thus been
punished for acts for which he was never asked to show-cause for.
ii) Petitioner's defence to show-cause has to be 'studied and examined'
under Rule 8 and then a report has to be prepared and appropriate
punishment is to be recommended as per Rule 9. No such subsequent
report has been prepared after studying and examining the defence of
the Petitioners to the show cause notice. Thus, non-compliance of
Rules 7, 8 and 9 has rendered the Petitioner unable to defend himself
in any meaningful manner and has defeated the protection of due
process available to Petitioner as per the University's own rules and
the laws of the country.
iii) Neither a copy of the full report of the High Level Enquiry
Committee was provided to the Petitioner, nor has any of the
purported evidence like statements of witnesses or videos, been
supplied to her. The petitioner was only supplied with a truncated 8
pages of the High Level Enquiry Committee Report.
iv) Further, during the High Level Enquiry Committee proceedings no
opportunity of cross examination of witnesses was given. The same
has been held to be a violation of the principles of natural justice by
this Court in Jawaharlal Nehru University v. Flora Gupta (2013) 133
DRJ 299 (DB).
6. Further, she would submit the requirement of an undertaking to
be filed by the Petitioner is a violation of her rights. The undertaking
is vague, binding the Petitioner not to participate in any unauthorised
activities even by her presence and not to commit any act which is
against the dignity of the University. Petitioner fears that the
vagueness inherent in this undertaking, which is in any case
unjustified, lead to a further violation of her fundamental and
constitutional rights. She prays for the reliefs as prayed in the writ
petition be granted.
7. On the other hand, Ms. Ginny Routray, 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 her defense
at the stage of Enquiry, Show Cause Notice and Appeal. The
Petitioner failed to respond to this first notice dated February 12,
2016. Subsequently, a second notice was issued on February 16,
2016. A third notice was served to the Petitioner on February 18,
2016 asking her to appear before the committee on February 26, 2016,
however, the Petitioner abstained herself from appearing before the
committee and clearing her stand. A letter and Email dated February
26, 2016 was addressed to the Petitioner which stated that -
This is in continuation with our earlier notices sent to you.
The expanded Committee would like to meet you on 29th
February, 2016 at 3.00 pm in Room No.108,
Administrative Block, and get your statement. Please note
that the temporary suspension from academic activity is
only during the pendency of the enquiry which will be over
on 3rd March, 2016 and the committee does not presume
anyone guilty. This is the last opportunity for you to meet
with the Committee and please do so without any
apprehension.
The Petitioner however, still failed to present herself before the
Committee.
8. Ms. Routray submitted, the Petitioner on February 26, 2016,
addressed a letter to the HLEC wherein she stated that-
I am willing to participate in any free, fair and unbiased
enquiry into the incidents of that day, but I know nothing
about the composition of the Committee. The principles of
natural justice entail that I should be given full opportunity
to appreciate the charges against me, who my accusers are,
what is the specific nature and substance of the complaint(s)
against me, and the material evidence on which such
charges are based. None of this has been provided to me.
The principles of natural justice also enable me full
opportunity to present my case, have witnesses examined by
the Enquiry Committee, and to cross examine the witnesses
who have accused and/or deposed against me.
I would like you to take note of and address that the actions
of the University have adversely affected not only safety and
created a hostile work environment for me.
I would like to stage that I am willing to cooperate with any
fair enquiry committee. However, in the interest of natural
justice, the concerns I have listed (while accrue to me as a
citizen of this nation) in this letter need to be addressed. I
sincerely request you to provide me the information I seek,
and explicitly put into place the unequivocal guarantee of
the principles of natural justice. I am fully ready to
cooperate with an impartial, unbiased enquiry.
9. Ms. Routray would also submit, the Petitioner without having
appeared before the Committee cannot claim that the principles of
natural justice have not been followed by the Respondent. Had the
Petitioner appeared before the Committee, she would have been privy
to all the information and evidence collected by the HLEC, moreover,
she would have been given the right to cross examine. It is reiterated
that the Petitioner was served with 4 notices to appear before the
Committee, the Petitioner herself failed to avail the opportunity given
to her and thus, there was no violation of Principles of Natural
Justice and Fair Play. Further, she would submit the Petitioner's
letter dated February 26, 2016 is similar to another Petitioner's letter
(in terms of exact content and style of writing) also dated February 26,
2016 in W.P. (C) No.7934/16, Anant Prakash Narayan V.
Jawaharlal Nehru University, therefore making it evident that there
was no application of mind on part of the Petitioner and she thus
colluded and conspired with the other Petitioners to boycott the
disciplinary proceedings and thus, making a mockery of the entire
process by claiming violation of the principles of natural justice.
According to Ms. Routray, same trend is observed in her subsequent
communications as well.
10. She stated, subsequently, on February 29, 2016 the Petitioner
addressed another letter to the HLEC, when she was to appear before
the HLEC, wherein she stated that-
I can categorically state that I condemn the statements
calling for the dismemberment of India. I would also like to
state on record that it is important for campus to initiate
and encourage dialogue.
I also notice, that in your letter that the HLEC has only
afforded me a final chance for depositions. Opportunity to
have witnesses examined in my defence and to cross-
examine the person(s) who have complained against me and
the witnesses against me if any, is part of any fair
procedure.
11. She submitted that in order for the Petitioner to examine the
witnesses, she had to be present before the Committee. Without
recording her statement before the Committee, the Petitioner could not
cross examine as per the University Statutes. The detailed guidelines
for enquires as laid down under Statute 32(5) of the Statutes of the
University clearly state the following-
1) The complaint is called for hearing and his deposition is
recorded.
2) The accused person(s) is called for recording his/her
statement.
3) Witnesses mentioned by both parties is listed and they are
called for recording their depositions.
4) Any evidence, from security staff/JNU staff or any other person,
who were present there and had witnessed the incident are
called and their statements are recorded.
5) A cross examination of the accused and complainant is
conducted.
12. According to Ms. Routray, it is thus evident from the above step
2 pertains to recording of statement of the accused and whereas, cross-
examination is only step 5. Thus, it was necessary for the Petitioner to
appear before the Committee and record her statement before she
could cross-examine. Further, a Show Cause Notice dated March 14,
2016 was issued to the Petitioner which stated that-
As per the High Level Enquiry Committee findings, you (Ms.
Chintu Kumari, Registration Number: 23353, Enrolment
No: 13/62/MS/014, Year of Admission : 20123M.Phil/Ph.D.
Student, Centre for Political Studies, School of Social
Sciences, JNU, New Delhi) have been found guilty on the
following account under the Cause 3, Category II of Rules
and discipline and proper conduct of students of JNU.
(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.
13. The Show Cause Notice further asked the Petitioner to explain
why disciplinary action should not be initiated against her for
indulging in the above mentioned act. The Petitioner was asked to
submit her reply to the Chief Proctor's Office latest by March 16,
2016, 17:00 hrs, which later extended till March 18, 2016 failing
which it would be presumed that the Petitioner has nothing to say in
her defence and the office would proceed further in the matter. The
Petitioner responded to the Show Cause Notice on March 18, 2016
wherein she reiterated the contents of her previous communications
and stated that-
Questions and issues raised by me in my letter dated 25
February and 26 February 2016 addressed to the High
Level Enquiry Committee have neither been addressed nor
acknowledged by the Committee. It is also striking that the
same has not been addressed by the committee even in its
report.
14. She would submit, the letters mentioned by the Petitioner were
acknowledged. Further, the Petitioner was requested to appear before
the committee so that her concerns could be met. However she still
chose not to appear. The Petitioner further stated that-
I continue to hold the position that I am willing to
participate in the disciplinary inquiry process after I am
made aware of the charges against me and the issues raised
by me are answered. Moreover, it is important to note that
the depositions and the evidence that form the basis of the
findings against me have not been served with the show-
cause or the subsequent report. Without a copy of the
depositions or a list of witnesses against me or a chance of
cross examining them, I have been judged guilty against
University rules and principles of natural justice.
Despite my repeated queries I was not informed that I would
be allowed to cross examine any witnesses. In any case, the
right of cross examination has no meaning unless the
student knows what is it that is being said and by whom....
Without the material proposed to be used against me, or an
indication of when I would get an opportunity of cross
examination, what effective defence can I take?
15. According to Ms. Routray, the Petitioner was not provided with
copies of documents as the University in its wisdom and in view of the
atmosphere, considering the sensitivity of the matter and in the interest
of the witnesses' safety only provided for the same to be inspected
before the Committee. Further, the Norms and Procedures along with
SOP state that-
8. Members of the committee will sign a
confidentiality/Non-Disclosure Statement.
9. Any information shared confidentially to the
Committee to the Committee members will not be
shared by them after the terms of the Enquiry
Committee us over.
10. No cell phone will be brought into the committee room
when any person comes to depose before it.
11. No statement will be issued to the press during the
enquiry period and also after the enquiry period.
12. All communication from the University to the
Committee and vice a versa will be in writing.
16. She submitted that even though the Petitioner and other students
were not provided the copies of the documents, the same were
available to them to access had they appeared before the committee to
depose. Thus, they themselves failed to avail the opportunity provided
to them. It was further submitted by Ms. Routray that the Petitioner
would have been given an opportunity to cross examine had she come
forward to record her statement. She would rely on the judgment of
the Supreme Court in K.L. Tripathi V. State Bank of India & Ors.
(1984) 1 SCC 43.
17. She stated, that 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
opportunities given to her, at the stage of enquiry, by admittedly not
appearing before the Committee despite being in the campus, hence
the Writ Petition on this ground alone is not maintainable.
18. According to her, 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. 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.
19. 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.
20. 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. The Committee issued
their First Notice on February 12, 2016 and subsequently Second
Notice on February 16, 2016 and Third Notice on February 18, 2016
along with a communication dated February 26, 2016 to the Petitioner,
directing her to appear before the committee and explain her 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 her known addresses including her 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
that she would not be available in the hostel. Ms. Routray's
submission was despite notice being served the petitioner still failed to
appear before the Enquiry Committee. Thus the Petitioner herself lost
the opportunity to appear before the committee and clear her stand.
21. According to her, one week extension i.e. up 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 this
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 fined Rs.20,000. The HLEC submitted its report
along with recommendations to the Vice Chancellor on 11.03.2016.
22. 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.
23. She submitted, 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 Ms. Chintu Kumari (Registration Number- 23353,
Enrolment No: 13/62/MA/014, Year of Admission: 2013, M.
Phil./ Ph.D. Student, Centre for Political Studies, School of
Social Sciences and a r/o. Room No.114, Koyna 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 (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, Ms. Chintu Kumari has
been found guilty of
a. Organizing the event of Sabarmati Ground at 4.45 pm
b. Shouting objectionable slogans in wrongfully organized
event.
This act on the part of Ms. Chintu Kumari is very seirous in
nature, unbecoming of a student of JNU and calls for
stringent disciplinary action against her. In view of this and
also keeping her career prospects in mind, the Vice-
Chancellor has taken a somewhat lenient view in the matter.
Ms. Chintu Kumari is fined Rs.20,000/- (Rupees twenty
thousand only) and is also warned to be careful and not to
got involved in such incidents in the future. Otherwise, a
more stringent disciplinary action will be taken against her.
She is directed to deposit the fine by 13 May 2016 and show
the proof thereof to this office, failing which hostel facility
will be withdrawn with immediate effect and further
registration will not be allowed.
24. She stated, 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 the Order dated May 13, 2016 of this Court. The
Respondent vide their letter dated June 13, 2016 to the Petitioner
stated that-
With reference to your appeal against the
Report/recommendations of the High Level Enquiry
Committee (HLEC), regarding 9 February incident JNU
campus, you are requested to appear before the Vice
Chancellor, Appellate Authority of the University, and
depose on 16 June 2016 at 4.00 p.m. at Vice Chancellor‟s
Office.
25. According to Ms. Routray, the Respondent finally issued the
Office Order No.201/CP/2016 dated August 22, 2016 wherein it was
stated that-
In the beginning she was asked by the Appellate Authority
"Were you present at Sabarmati Dhaba to attend the event
on 9th February, 2016?"
She responded by saying that she was present at Sabarmati
Dhaba for around 20 to 25 minutes when these slogans were
raised and when further probed by the members on "why
did she shout objectionable slogans during the event?" She
responded by saying that "She was talking to her friends
when the event transpired and she did not raise any
objectionable slogans". She further answered the questions
framed by the committee.
Ms. Kumari was given ample time by the Committee to
examine all the files before she could write her appeal and
she read through these files and wrote her appeal.
26. It was her submission that the Appellate Authority taking a
lenient view imposed a fine of Rs.5000/- on the Petitioner. Further,
the following evidence was relied on-
Evidence-
1. The evidence available against her indicates that she was
present at the Sabarmati Ground during the event and was involved in
it, as the security depositions referred to by the HLEC report indicate.
However, she admitted in her appeal that she was not Sabarmati
Dhaba only for 20-25 minutes to have tea and she was speaking to her
friends at the Dbaha
2. The available evidence i.e. security depositions referred to by
the HLEC, indicate that was involved in arranging logistics for the
event. However, she argued that she was not part of any group which,
organized the event nor did she shout objectionable slogans.
27. She would justify the finding inasmuch as the statement of
Naveen Yadav has been corroborated by both O.P. Yadav and V.P.
Yadav as they were all present at the venue. She would submit, that as
per the HLEC Report, the Petitioner was seen organizing the event and
was also seen participating by Security Officials. However,
considering the Petitioner's Appeal and her willingness to cooperate,
the same was not taken into account. She would also submit the copies
were admittedly inspected by the Petitioner before the Appellate
Committee.
28. According to Ms. Routray, the Petitioner in her communications
and appeal stated that she was not the organizer of the event nor she
was a party seeking permission for the event. However, the HLEC
Report clearly stated that among other students who were gathered
there who were busy organizing the event were Mr. Ashutosh Kumar,
Mr. Rama Naga, Ms. Shweta Raj, Ms. Chintu Kumari, Mr. Anant
Prakash and Ms. Banojyotsna Lahri. Keeping in view of this, even
though the fine of the Petitioner was reduced the same was not waived.
29. That the University's autonomy means its right of self-
government particularly, it is 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 herself, 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 mattes 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.
30. 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 herself before the enquiry committee.
The Petitioner however deliberately avoided proceedings.
31. She would also submit, 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 their official files. The same are available for any other scrutiny as
and when the same may be requisitioned by this Court. She would
state, the Legal Submissions made and judgements 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 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.
(x) M.V. Bijlani Vs. UOI & Ors. (2006) 5 SCC 88.
She prayed this Court should dismiss the writ petition of the
petitioner.
32. 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 a penalty in the
nature of fine of Rs.20,000/- was imposed on the petitioner, which
order was modified to the extent that the fine has been reduced to
Rs.5,000/- with a direction to give an 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 is in
violation of the judgment of this Court in the case of Jawaharlal
Nehru University v. Flora Gupta (supra). The enquiry was
conducted in violation of principles of natural justice without
supplying any material at any point of time; no opportunity of cross
examination of the witnesses was given. The petitioner was never
specifically charged with any act that required explanation, let alone a
defence. She was not informed of the acts which contributed to such a
charge or the evidence and material by which the said charge was to
be established. The petitioner was charged of a residual clause, which
has not been explained in the show cause notice. The Statute
envisages that there be a report before the show cause notice and also
that there be another report after the application of mind post show
cause notice and before imposition of penalty. The only material, the
petitioner had accessed to, for the purpose of understanding the
charges against her was the truncated extract of HLEC report. The
petitioner replied to the show cause notice without being aware of the
material against her. The punishment did not take into account the
petitioner's reply to the show cause notice. The punishment is
disproportionately harsh to the alleged charge against the petitioner.
The Appellate Authority has also not conducted the proceedings in
accordance with the principles of natural justice. The petitioner was
not shown the video recordings. No opportunity was given to review
all the material in any meaningful way. The petitioner was asked to
write the appeal on the spot during the hearing completely ignoring
the appeal already filed by her on May 02, 2016. The Appellate
Authority has only allowed a cursory examination of the material
during the hearing and told her to write a statement, which was treated
as an Appeal discarding the actual appeal filed by the petitioner after
due thought and legal assistance.
33. 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.
34. There is no dispute that the petitioner had filed an Appeal dated
May 02, 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. It appears on June 16, 2016, after the appellate
proceedings were held, the petitioner made a representation wherein
she had detailed the sequence of events that had taken place during the
appeal hearing. She had referred to what according to her had
transpired during the appeal proceedings. She has also stated that it
was only for the first time on June 16, 2016, she was shown some files
and told she could, if wanted, look at some of the materials. As she
was confronted with a heap of papers, she could hardly prepare or
submit anything in that regard. She also referred to the questions that
were put to her by the Appellate Authority. She has requested that the
aforesaid points be kept in mind before deciding the appeal.
35. 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
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 her 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 her
mind on the evidence so noted by her during the inspection, which
was against her and to make an effective appeal. Surely, for such
purposes, she may have required reasonable time to prepare her case,
which may include seeking legal advice. The procedure evolved by
the Appellate Authority to allow inspection of the documents/records
and asking her to submit appeal and hearing her 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 her to
supplement her appeal already filed by her on May 02, 2016. This
would be in conformity with the concept of fair play in action, which
is the basis of natural justice. It is noted, the appellate order refer to
available evidence to mean security depositions referred to by HLEC.
The HLEC, insofar as the petitioner is concerned referred to
deposition of O.P. Yadav, V.P. Yadav and Palani. The respondent has
filed the deposition of Navin Yadav. It is noted that the arguments
were heard and completed on March 15, 2017. It is only along with
the submissions, the depositions of certain persons including V.P.
Yadav, O.P.Yadav were filed, that too in Hindi. Even otherwise, it is
noted that 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. Further, the
petitioner in his appeal dated May 02, 2016 has raised several
grounds, which are almost similar to the one raised in this petition.
36. On a 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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 her 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 her appeal dated May 02, 2016. The
Appellate Authority having allowed the inspection, reasonable time
should have been given to the petitioner to supplement the appeal
already filed by her on May 02, 2016. The judgment has no
applicability, at least on the limited issue that is being decided by this
Court.
43. 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
acts 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.
44. 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, 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.
45. 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.
46. 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.
47. 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.
48. 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.
49. 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 W.P.(C) No. 4398/2016 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. 32957/2016 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
OCTOBER 12, 2017/ak
