Delhi High Court
Anwesha Chakraborty 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) 7914/2016, CM No. 32751/2016
ANWESHA CHAKRABORTY
..... Petitioner
Through: Ms. Malavika Rajkotia,
Mr.Vaibhav Vats and
Ms.Soumya Maheshwari, 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:-
"In view of the facts & circumstances stated above, it is
prayed that this Hon‟ble Court in public interest may be
pleased to:
1. issue a writ of certiorari or any other writ, order or
direction thereby quashing and setting aside the report of
the High Level Enquiry Committee set up by the
respondent vide Office Order No. 203/CP/2016 dated
22.8.2016 of the Vice Chancellor punishing the petitioner,
and all other proceedings consequential to and arising out
of the report of the High Level Enquiry Committee of the
respondent University;
2. award the petitioner the costs of these proceedings;
3. Pass such further order or orders as this Hon‟ble
Court may deem fit."
2. It is the case of the petitioner, post the events of February 09,
2016, the Respondent set up a 'proctorial enquiry' to enquire into the
allegedly seditious slogans raised during the event. However, this
enquiry was superseded by the Vice Chancellor, who set up a "High
Level Enquiry Committee". The students identified by the HLEC sent
a representation to the Committee, challenging its constitution and
also requested that the findings, charges, and the purported evidence
be shared with them. The HLEC failed to respond to any of these
requests. As per the HLEC recommendations, the Petitioner was found
guilty of "lending her name in the poster titled "Against the Brahmical
collective conscience! Against the judicial killing of Afzal Guru and
Maqbool Bhatt..." in the name of cultural evening thus arousing
communal and caste feelings." Whereby a fine of Rs.20,000/- was
imposed upon the Petitioner. In order to protest the unfair manner in
which the Petitioner, among other students, was punished by the
Respondent, some students of the University went on an indefinite
hunger strike, followed by a mass hunger strike by some teachers of
the University. The Petitioner subsequently, approached this Court for
quashing the aforementioned office order. This Court held that the
Office Order will not be given effect until disposal of the appeal filed
by the Petitioner before the Vice Chancellor. The decision of the Chief
Proctor was upheld and the Petitioner was directed to deposit a sum of
Rs.20,000/- as fine. The Petitioner has been subjected to an enquiry
which was in violation of the principles of natural justice. Any
administrative inquiry devoid of the adherence to these principles does
not stand. Reference is made by Ms. Rajkotia to the judgments of the
Supreme Court in AK Kraipak v. Union of India AIR 1970 SC 150
and State of Orissa v. Dr. (Miss) Binapani Dei and Ors. AIR 1967
SC 1269.
3. It is the submission of Ms. Malavika Rajkotia, that the
impugned action of the respondent is bad for the following reasons:-
A. Violation of Principles of Natural Justice
The principles of natural justice have been violated at every step of the
enquiry undertaken by the Respondent. The enquiry process suffered
from the following lacunae:
a. Biased Enquiry
4. The appellate authority is the Vice Chancellor whose approval
had been granted for imposing the punishment under Office Order
150/CP/2016 dated April 25, 2016. The Vice Chancellor was already
prejudiced against the Petitioner and was consequently incapable of
appreciating evidence from an unbiased perspective. The principle of
Nemo debet esse judex in propria causa" means that no one should be
a judge in his own cause is applicable in this case. She referred to the
judgment of the Supreme Court in the case reported as (1978) AIR
597 Maneka Gandhi v. Union of India, wherein the Supreme Court
has held that administrative action shall be held in a manner which is
patently impartial and meets the requirements of natural justice. In the
instant factual matrix, it is clear that the appellate authority is the Vice
Chancellor whose approval had been granted for imposing the
punishment. As such, the Vice Chancellor cannot be the appellate
authority as he was already prejudiced against the petitioner and
would have been incapable of appreciating the evidence from an
unbiased perspective.
b. Confrontation of Evidence
5. The Respondent failed to provide the Petitioner with copies of
all statements and evidence collected by the High Level Enquiry
Committee and consequently used by the Appellate Authority. The
Respondent provided the Petitioner with a series of haphazardly
compiled documents which were completely irrelevant and did not
prove any of the charges made against the Petitioner. The Respondent
has however, used these statements to level serious and false charges
against the Petitioner. She referred to the judgment of the Supreme
Court in the case reported as (1955) AIR 65 Dhakeshwari Cotton
Mills v. Commissioner of Income Tax. In denying the Petitioner the
opportunity to examine the statements and documents collected by the
HLEC, the Respondent has denied the Petitioner of a fair opportunity
making the enquiry process arbitrary and therefore illegal.
c. Cross examination
6. The Petitioner has also not been given the opportunity to cross
examine persons or test the veracity of the persons examined by the
committee and to lead evidence in her defence. This clearly vitiates
the process adopted by the Respondent. Clause (5) of Section 35(2) of
the Statutes of the University clearly states that a cross examination of
the accused and the complainant is to be conducted in the proceedings
conducted as part of a proctorial enquiry. This opportunity has not
been given to the petitioner in the instant scenario.
d. Notice
7. In addition to all of the lapses in the decision making process
the Petitioner was not given notice about the proceedings which the
Respondent undertook to punish the Petitioner. She referred to the
judgment of the Supreme Court in Nagarjuna Construction Company
Ltd. v. Government of Andhra Pradesh and Ors. 2008 (14) SCR 859.
B. Non-Application of Mind
8. The order passed is itself flawed in many respects. The
imposition of the same penalty on all concerned students barring two,
in spite of huge differences in the acts that they have been held guilty
of, reflects lack of application of mind as well as a complete ignorance
of the principles of sentencing that an administrative body entrusted
with holding an enquiry must be aware of. Moreover, while the
Appellate Authority has limited itself to the question of quantum of
punishment, it has failed to provide any reasons for the punishment
imposed. The fact that the orders passed against all the students were
in boilerplate language furthers the factum of lack of application of
mind by the Appellate Authority. She referred to the judgments in the
case of Commissioner of Police v.Ghordandas 1952 SC 16 and
D'Souza v. State of Bombay 1956 SCR 382.
C. Application of Patently Illegal University Rules
9. The Respondent has punished the Petitioner under rules which
are illegal and void. The Petitioner's alleged acts have been classified
as a Category II misconduct falling under clause (xxv), which reads,
"Any other act which may be considered by the V.C. or any other
competent authority to be an act of violation of discipline and
conduct." This provision is too vague and wide. It can encompass any
act of a student, and should therefore be considered void. Clause (10)
of Statute 32(5) of the Statutes of the University state that the Vice
Chancellor shall make the final decisions in any enquiry and shall
approve the punishment imposed by the enquiry committee. Clause
(12) of Statute 32(5) of the Statutes of the University state that the
Vice Chancellor shall also be the appellate authority. Under these
provisions, the Vice Chancellor is required to be involved in the
process of enquiry at the first instance. However, he is also required to
sit in appeal over the same matter. This is in violation of the basic
principle that a person cannot sit in appeal against their own order.
D. Violation of the Fundamental Right to Freedom of Speech and
Expression
10. The order passed by the HLEC and later confirmed by the
Appellate Authority is not only violative of the Principles of Natural
Justice but also deprives the Petitioner of her right to protest an
activity to raise political issues which is her constitutional right under
Article 19 (1) of the Constitution of India, 1950. She relied on the
judgment of the Supreme Court in the case of Anita Thakur & Ors. v.
Govt of Jammu and Kashmir & Ors AIR 2016 SC 3808, wherein it
was held that the right to peacefully protest is a fundamental right
guaranteed by the Constitution. The involvement of the Petitioner in
the event held at the Sabarmati Dhaba on 9 th February 2016 was
peaceful the role played by her in the said event cannot be construed
to be disruptive or giving rise to caste and communal feelings. She
referred to the judgment of this Court in Amritshava Kamal v.
Jawaharlal Nehru University 2007 (99) DRJ 528.
11. The past conduct of the Respondent is reflective of the fact that
there exists a tendency in the Respondent to hold inquiries in a mala
fide manner, sidelining the interests of the students. In the
abovementioned case, it was found that the Respondent had not
provided the Petitioner with opportunity or notice before the inquiry
against the Petitioner. In support of this submission, Ms. Rajkotia
referred to the judgment of Flora Gupta v. Jawaharlal Nehru
University Manu/De/3042/2012.
12. On the other hand, Ms. Ginny Routray learned counsel for the
respondent would submit, the Petitioner was given ample opportunity
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 the first notice dated February 17, 2016 wherein she was
asked to appear before the Committee on February 18, 2016.
Subsequently, a second notice was issued on February 18, 2016 asking
her to appear before the Committee on February 19, 2016. A third
notice was served to the Petitioner on February 19, 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.
13. The Petitioner on March 02, 2016, addressed a letter to the
HLEC wherein she stated that-
I have received three email communications from the High
Level Enquiry Committee Nos. HLEC/JNU/2016/2086,
(dated February 17, 2016), HLEC/JNU/2016/2114 (dated
February 18, 2016) and HLEC/JNU/2016/2218 (dated
February 19, 2016) asking me to appear on 18th February,
19th February and 26th February, respectively, before a
High Level Enquiry Committee to explain my position on
„an incident that took place on 9th February, 2016 near
Sabarmati and Ganga Hostel‟ and to bring any evidence in
my defense.
In the circumstances following the 9th of February an
extremely volatile situation has been created both inside and
outside the campus which has resulted in extreme mental
and physical stress for me........
Due to continuous media trial of JNU and JNU students, I
feel insecure because the prevailing atmosphere in JNU, the
city, and indeed the country is not conductive to a proper
and fair investigation, making depositions and statements
without fear impossible...............
I also note with concern that in your letter that the HLEC
has only afforded me a final chance for deposition but no
opportunity to have witness examined in my defence or to
cross-examine the person(s) who have complained against
me and the witnesses he/she/they have presented. This is
against my natural rights for justice......
14. Ms. Routray would submit, the Petitioner feeling unsafe within
the campus is not a viable excuse since the Respondent had taken
steps to ensure the safety and tight security for all the students within
the campus, in fact even morning walkers were prohibited to enter the
campus. Further, the Petitioner was residing within the campus and
had hand delivered all her letters/communications to the
Administrative Building. It is thus, evident that the Petitioner
deliberately avoided appearing before the committee and made
baseless excuse not to do so. She would further submit that had the
Petitioner appeared/deposed before the committee she would have
been given the opportunity to access all the documents. She stated,
even though the Petitioner and other students were not provided the
copies of the documents at the stage of show cause, 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. She submitted that the Petitioner would have been given an
opportunity to cross examine had she come forward to record her
statement.
15. 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.
Anwesha Chakarborty, Registration No: 34427, Enrolment
No: 15/62/MS/038, Year of Admission: 2015, M. 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 Clause 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
16. According to Ms. Routray, 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 acts. The
Petitioner was asked to submit her reply to the Chief Proctor's Office
latest by March 16, 2016, 17:00 hrs later extended till March 18, 2016
failing which it would be presumed that the Petitioner has nothing to
say in her defense and the office would proceed further in the matter.
The Petitioner responded to the Show Cause Notice on March 18,
2016 wherein she stated that she was supplied with an incomplete
HLEC report. In this regard, Ms. Routray had submitted that all the
students were provided with the complete report, however the
recommendations for punishments were removed keeping in mind the
sensitivity of the matter as a number of students were named in it.
Insofar as the plea of the petitioner that the committee was non-
representative and biased, it was her submission that the demand for
democratization from the JNUSU students Council is not based on any
Rule or Statute of the Respondent University. Further, regarding the
Petitioner's demand for documents, she reiterated that had the
Petitioner appeared/deposed before the committee the same would
have been available before her to examine.
17. According to Ms. Routray, at the stage of appeal the decision is
to be taken only from record before the deciding 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, both at the stage of enquiry, and at
the stage of Show Cause Notice by wilfully not responding to the
same, hence the Writ Petition on this ground alone is not maintainable.
18. She further stated, 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 1996. 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 by
the Petitioner on the false pretext of holding a poetry reading
competition at Sabarmati Dhaba. Despite the alleged "permission"
immediately being withdrawn by the DOS, the Petitioner carried on
with the event which led to an enormous law and order situation. 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."
She would submit, 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.
Further, 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. She stated the SOP norms are
essentially analogous to the Norms recommended for a Proctorial
enquiry. She also submitted, that 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 action to be initiated
by the University as per its statutes and guidelines.
19. According to her, on February 12, 2016 Office Order
No.115/CP/2016 was passed, which stated as follows-
Based on the report submitted by the Chief Security Officer,
video clipping of the events and other related documents,
the High Level Enquiry Committee, constituted by the Vice-
Chancellor, JNU, is of the opinion that prima facie
evidence of the occurrence of the following offences exists:-
(i) Misrepresentation of the proposed event as a
cultural evening although objective was to hold a
political meeting.
(ii) Forcefully holding the event even when the
permission to hold it was withdrawn by the DOS.
(iii) Creating a law and order situation on campus both
at Sabarmati Hostel and Ganga Dhaba.
(iv) Shouting unconstitutional slogans, and making
derogatory remarks about the nation.
20. She would submit, 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, 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. Subsequently 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 students of University and imposed a fine of
Rs.20,000/-. The HLEC submitted its report along with
recommendations to the Vice Chancellor on March 11, 2016.
21. According to her, the Chief Proctor, after perusing the report of
the HLEC, issued a Show Cause Notice on March 14, 2016 along with
an extension dated March 16, 2016 and a copy of HLEC report to the
Petitioner. 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. Anwesha Chakraborty (Registration Number-
34427, Enrolment No: 15/62/MS/038, Year of Admission:
2015, M.Phil./PH.D Students, Centre for Political Studies,
School of Social Sciences) 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. Anwesha
Chakraborty has been found guilty of
a) Lending her name in the poster titled "Against the
Brahmical collective conscience! Against the judicial killing
of Afzal Guru and Maqbool Bhatt........."in the name of
Cultural Evening thus arousing communal and caste
feelings
This act on the part of Ms. Anwesha Chakraborty is serious
in nature, unbecoming of a student of JNU and calls for
stringent disciplinary action against her. In view of this and
keeping her career in mind, the Vice Chancellor has taken a
somewhat lenient in the matter.
Ms. Anwesha Chakraborty is fined Rs. 20,000/- (Rupees
twenty thousand only) and is also warned to be careful and
not to get involved in such incidents in the future.
Otherwise, a 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
the hostel facility will be withdrawn with immediate effect
and further registration will not be allotted.
22. Subsequently on May 02, 2016, the Petitioner in her letter to
the Vice Chancellor appealed to withdraw the Office Order dated
April 25, 2016 wherein she stated that-
This charge against me is completely false and without any
basis, as the object of the cultural evening was to inspire
students to oppose caste oppression and communal feelings.
According to Ms. Routray, the purpose of the event mentioned in the
booking requisition form and in the poster were different. The
booking requisition form stated that permission was sought to hold a
"Poetry Reading -A Country Without a Post Office at Sabarmati
Dbaba" on 9 February 2016 from 5 pm- 7:30 pm whereas the Poster
stated-
"Against the Brahmanical Collective Conscience! Against
the judicial killing of Afzal Guru & Maqbool Bhat! In
solidarity with the struggle of the Kashmiri people for their
democratic right to self-determination..... We invite you for
a cultural evening of protests with poets, artists, singers,
writers, students, intellectuals, cultural activists 9 th
February, Tuesday, 5pm, Sabarmati Dhaba. There will also
be an art exhibition & and a photo exhibition portraying the
history of the occupation of Kashmir & the people‟s
struggle against it. We invite everyone to join us in protest,
in rage against the occupation and in solidarity with the
valiant people of Kashmir.
23. She states, the Petitioner's name was mentioned in the poster
along with the undertaking attached to the booking requisition form,
however, her name was later on struck off from the undertaking.
Further, the Petitioner did not respond to the charge levelled against
her in the Order dated April 25, 2016 regarding her name on the
Poster. The Chief Proctor on May 03, 2016 addressed a letter to the
Petitioner wherein it was stated that-
With reference to your representation dated 2 May
2016.............. it is informed that Chief Proctor desired to
meet you and discuss.
24. 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 the Order dated May 13, 2016 by the Delhi High
Court.
25. That the Respondent finally issued the Office Order
No.201/CP/2016 dated August 22, 2016 wherein it was stated that-
Evidence
1. She lent her name to be printed in an objectionable
poster titled "Against the Brahmanical collective
conscience! Against the judicial killing of Afzal Guru and
Maqbool Bhatt..." in the name of cultural evening thus
arousing communal and caste feelings.
Recommendations
Ms. Chakraborty did not make any specific appeal to
absolve herself from the charges made by the HLEC. On
the contrary she questioned the formation of HLEC itself,
and asked for documents and evidence related to her
involvement in the event. The Committee thereupon
considers the recommendations of the HLEC on the
aforesaid student to be highly justifiable. Therefore, the
punishment recommended by the HLEC i.e. "A fine of Rs.
20,000"stands as it is. In addition to it, she has to submit
an undertaking in a prescribed format to the Chief
Proctor.
26. She would also state, without prejudice to the fact that the
allegations levied against JNU authorities in her Affidavit dated
September 05, 2016 are wrong and denied. The Petitioner stated that-
They told me my offence lies in agreeing to a „cultural
event‟ which was „planned‟ to raise „anti-national‟
feeling within the University space. On saying I find
nothing wrong in giving m name to a poster, which is the
only evidence against me, I was asked whether I will
participate in any such activities afterwards..........
On further refusing to answer this I was told that I am not
being „co-operative‟ with the Committee. Then I was
given a pile of files to look into in the next room with one
of the members of HLEC for as long as it would take me.
By the Petitioner's own admission it is evident that she was given
sufficient time to go through the documents and further, she does not
deny giving her name in the Poster which led to a law and order
situation on February 09, 2016 nor does she express regret for the
same.
27. That the University's autonomy mean 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 opportunity 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. 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.
28. She would state, the Respondent's action is within their
authority and exercise 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 her hostel, in her various addresses and was
asked to show cause and was also given opportunity to defend herself
before the enquiry committee. The Petitioner was given ample
opportunity to defend but she herself lost the opportunity by not even
responding to the simple queries raised by the Appellate Committee.
29. That the Legal Submissions made and judgments relied upon in
Umar Khalid V. JNU, W.P. © 7826/2016 and Anirban Bhattacharya
V. JNU, W.P. © 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.
In view of the above facts and circumstances, she prayed for the
dismissal of the writ petition.
30. 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 whereby a penalty in the nature of fine of
Rs.20,000/- was imposed on the petitioner, which order was upheld by
the Appellate Authority with a direction to file 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 has been held in violation of Statute 32(5) of the Statutes
of the University; proceedings have been held in violation of
principles of natural justice; the action is actuated by malafide as the
University is also reviving stale proceedings by issuing notice to some
of the concerned students in respect of incidents of 2015. On a
reading of order dated August 22, 2016, there is no connection
between the findings of fact and violation of Rules of the respondent
University. The orders have been issued without giving the relevant
material relied upon by the respective Authorities. The HLEC has
prejudged the petitioner and the action taken on the basis of the report
of the Committee is not impartial and unbiased. The HLEC did not
even reply to the petitioner's request for documents, on the basis of
which she has been found guilty. The impugned action has serious
consequences for the petitioner's academic career. No Rule/Statute or
Ordinance, under which petitioner has been punished has been
stipulated. The Appellate Authority premised its decision on the
refusal of the students to sign a vague undertaking that would have
resulted in severe curtailment of their fundamental rights.
31. The respondent has justified its action by contending that the
Enquiry Proceedings were held by following the principles of natural
justice and the Rules/Statutes. It is the petitioner, who failed to come
forward and depose before the Committee. That apart, the respondent
has also highlighted the seriousness of the charges for which the
petitioner was held guilty. 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.
32. There is no dispute that the petitioner had filed an Appeal dated
May 02, 2016. It is also a conceded fact that the Vice Chancellor-
Appellate Authority had held its meeting on July 04, 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.
33. 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 being W.P.(C) No.
4390/2016, the respondent University issued a communication dated
June 24, 2016 asking the petitioner to appeal to the Vice Chancellor
and depose on July 04, 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 July 04, 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 July 04, 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 Committee to allow inspection of
the documents/records 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 July 04, 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. That apart, even in these proceedings,
the respondent has not filed, the complete record of the HLEC. In
fact, in some of the connected petitions, 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 is requisitioned before the Court. Even if some
depositions were filed along with the written arguments in some
connected 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.
34. That apart, I note, the petitioner, in her appeal dated May 02,
2016 has raised several grounds. A perusal 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).
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.
35. Insofar as the plea of Ms. Malavika Rajkotia that the Vice
Chancellor having involved in the process of enquiry at the first
instance, cannot sit in appeal against his own order is concerned, the
same is without any merit for more than one reason. Firstly, the
petitioner by appearing before the Appellate Authority on June 16,
2016 has submitted to the jurisdiction of the Appellate Authority i.e.
the Vice Chancellor. Secondly, the vires of Rule 12 contemplating an
appeal to the Vice Chancellor is not under challenge.
36. 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.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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.
48. 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 two continuous 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. 4390/2016 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. 32751/2016 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
OCTOBER 12, 2017/ak
