Delhi High Court
Gargi Adhikari 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) 7912/2016, CM No. 32746/2016
GARGI ADHIKARI
..... Petitioners
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. 208/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."
FACTS AS MENTIONED IN THE WRIT PETITION:-
2. The facts as averred by the petitioner are, on February 09, 2016
a poetry reading event was organized. The poster said "A Country
Without a Post Office". As per Statute 32(2), the University has a
proctorial system where administration of students related matters
pertaining to acts of indiscipline are delegated to the Chief Proctor.
He/she is assisted by two additional proctors; one of the proctors is a
woman. On February 11, 2016, a proctorial inquiry was set up and an
appeal was made to all concerned, especially students to submit all
audio/video evidences regarding the incident by February 26, 2016.
On February 11, 2016, the Vice Chancellor set up a High Level
Enquiry Committee superseding the Proctorial Enquiry Committee.
The HLEC was given the deadline of February 22, 2016 for
submitting the report. The HLEC submitted a preliminary report,
which was accepted by the Vice Chancellor and the Chief Proctor was
asked to implement the recommendations. On February 12, 2016,
HLEC sent a letter directing the petitioner to appear before the HLEC
on February 15, 2016. On February 16, 2016, the HLEC sent second
notice to the petitioner directing her to appear before the HLEC on
February 18, 2016. On February 18, 2016, the HLEC sent third notice
to the petitioner directing her to appear before the HLEC on February
26, 2016. On February 23, 2016 the Vice Chancellor had approved
appointment of two more Members in HLEC. On March 11, 2016, the
HLEC submitted its report. On March 15, 2016, a show cause notice
was issued to the students wherein they were directed to file reply by 4
pm on March 16, 2016. Deadline to file reply was increased by few
days till March 18, 2016. On March 18, 2016, reply was filed by the
students, wherein they had sought that the copy of the complaint,
details of the witnesses and their depositions, list of documents,
proof/evidence/findings, if any relied on and all documents,
statements, and material, if any, relied upon by, during the course of
the enquiry, be provided, in order to enable them to file a detailed
written response. Thereafter, sufficient time may be granted to make
an effective response to the findings. On April 25, 2016, the Chief
Proctor after obtaining the approval of the Vice Chancellor issued
order holding the petitioner guilty under Clause 3, of category-II sub-
category (xxv), whereby the VC imposed a fine of Rs.20,000/- on the
petitioner. A writ petition is filed by the petitioner being W.P.(C) No.
4389/2016 wherein this Court passed an order holding that the office
order dated April 25, 2016 shall not be given effect to until the appeal
filed by the petitioner is decided. On August 22, 2016, order is passed
in the appeal upholding the fine of Rs.20,000/- that has been imposed
by HLEC on the petitioner with a direction to give an undertaking.
SUBMISSIONS:-
3. It is the submission of Ms. Malavika Rajkotia, that post the
events of February 9, 2016, the Respondent set up a 'proctorial
enquiry' to enquire into the allegedly objectionable 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.
She states, the HLEC failed to respond to any of these requests. On
April 25, 2016, the Chief Proctor, after obtaining approval of the Vice
Chancellor, issued an office order, holding the Petitioner guilty under
clause 3, of "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. Further the VC imposed a fine of Rs. 20,000/-,
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.
She stated, 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 Appellate Authority,
despite having no evidence against the Petitioner and despite her not
being the organizer of the event in question, retained a fine of a sum of
Rs 20,000. This is clearly indicative of the lack of application of mind
in passing the order. It is an instance of gross miscarriage of justice.
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 in view of the
judgment of the Supreme Court in the cases of 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.
Her submission are, the impugned action/orders are:-
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
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 requirement of natural justice. In the instant
factual matrix it is clear that the Appellate Authority for the purposes
of office order dated August 22, 2016 is the Vice Chancellor, whose
approval had been granted for imposing the punishment under Office
Order dated April 25, 2016. 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. According to Ms. Rajkotia, 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. It must be mentioned here that the Security deposition now
submitted to the court against the Petitioner by the Respondent
mentions her name only in the passing and does not attribute any
specific 'objectionable' slogan to her. Further, the student deposition
evidenced by the Respondent does not even mention the Petitioner's
name anywhere. She relied on the judgment of the Supreme Court in
the case reported as (1955) AIR 65 Dhakeshwari Cotton Mills v.
Commissioner of Income Tax. She stated, 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. She submitted, 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 case.
d. Notice
7. Ms. Rajkotia would submit, 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 relied on the judgment of the Supreme Court in Nagarjma
Construction Company Ltd. v. Government of Andhra Pradesh and
Ors. 2008 (14) SCR 859.
B. Non-Application of Mind
8. She submitted, 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 a 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. According to her, the Petitioner
was not the organizer of the event in question and was present in
capacity of being the security convenor, an elected representative to
the Jawaharlal Nehru University Students Union (JNUSU). 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 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. According to Ms. Rajkotia, 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. She had submitted, 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 and this Court in Amritshava Kamal v. Jawaharlal
Nehru University 2007 (99) DRJ 528. She submitted, 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. She
also relied on the judgment of this Court in Flora Gupta v.
Jawaharlal Nehru University, MANU/DE/3042/2012.
11. On the other hand, Ms. Ginny Routray, learned counsel for the
respondent would submit, that the Petitioner is a student studying in
JNU and resident of Hostel in JNU. The Respondent No.1 is
Jawaharlal Nehru University (JNU) established and incorporated by an
Act of Parliament in the year 1966. She would state, 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.
12. 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."
She submitted that 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 Febraury, 2016
of the Chief Proctor stands withdrawn.
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, recommended actions to be
initiated by the University as per its statutes and guidelines.
13. She stated, on February 12, 2016 Officer 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.
14. According to Ms.Routray, 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 the first notice dated February 12, 2016
wherein she was asked to appear before the Committee on February
15, 2016. Subsequently, a second notice was issued on February 16,
2016 asking her to appear before the Committee on February 18,
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.
15. According to Ms. Routray, the Petitioner on February 26, 2016,
the day on which she was to appear before the HLEC, 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/2016/1949, 50
(dated February 12, 2016), HLEC/JNU/2016/2067,68
(dated February 16, 20160 and HLEC/JNU/2016/2141, 66-
67 (dated February 18, 2016) asking me to appear on 16
February, 18 February and 26 February, respectively,
before a High Level Enquiry Committee to explain my
position on „an incident that took place on 9 th February,
2016 near Sabarmati and Ganga Hostel‟ and to bring any
evidence in my defense.
I have been a student in this University for over one
semester and am also currently the elected JNUSU
Councilor from the School of International Studies. I am
also the Security Convenor of JNUSU.
The situation created both inside and outside the campus
following the 9th February incident had resulted in extreme
mental and physical stress for me.....................
I, Gargi Adhikari, was not an organizer of the event, and
had no part in "forcefully holding the event". As a
representative of JNUSU, my present in the Dhabas is
routine. I was present during the event at Sabarmati
Dhabaas part of the audience...............
The Slogans that were given by JNU students were familiar
ones against exploitation and injustice. I responded to those
familiar slogans alongwith many other students.
16. It was her submission that 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 Respondent was residing within the campus and
had hand delivered all her letters/communications to the
Administrative Building. So, the Petitioner deliberately avoided
appearing before the committee and made baseless excuses not to do
so. She stated, the Petitioner was an office bearer and thus, there was
nothing stopping her from appearing and deposing before the HLEC.
Also, since the Petitioner had no fear of her safety while being present
at the event and responding to the slogans (as per her own admission)
wherein a law and order situation was created, she should have had no
hesitation in appearing before the HLEC especially since there was no
incidents in the campus after September 09, 2016 and the Petitioner
was very well residing within campus.
17. The Respondents on February 26, 2016 addressed an
Email/letter to the Petitioner wherein it was 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 in only during
pendency of the enquiry which will be over on 3 rd March,
2016 and the Committee does not presume any on guilty.
This is the last opportunity for you to meet with the
Committee and please do so without any apprehension.
The above mentioned letter is therefore the fourth notice that was
issued to the Petitioner. However, the Petitioner still failed to appear
before the Committee.
18. On February 29, 2016 the Petitioner again wrote to the HLEC
wherein she reiterated the contents of her previous letter and further
stated that:-
As I had mentioned in my earlier response, I am willing to
cooperate with any fair, unbiased enquiry in accordance
with the principles of natural justice. However, I note with
concern that the HLEC has given me a final chance for
deposition.
She submitted, the Petitioner was served four notices asking her to
appear before the Committee on 4 different dates i.e. February 15,
2016, February 18, 2016, February 26, 2016 and finally February 29,
2016. The Petitioner still however failed to appear on all four dates
and did not provide any valid reason of not doing so. According to
her, the Petitioner never intended to appear before the Committee to
begin with and therefore, sought excuses after excuses to avoid the
same.
19. She submitted, 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.
Gargi Adhikari, Registration Number:805634, Enrolment
No:15/4G/PI/001, Year of Admission: 2054, PH.D Student
School of International Studies, 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
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. A copy of HLEC report was also
conveyed to the Petitioner which clearly outlined the act and conduct
of the Petitioner based on the depositions which led to issuance of the
Show Cause Notice.
20. The Petitioner responded to the Show Cause Notice on March
18, 2016 wherein she stated that she was supplied with an incomplete
HLEC report, which is incorrect as 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. According to Ms. Routray, the
petitioner's demand for documents is concerned had the Petitioner
appeared/deposed before the committee the same would have been
available before her to examine. She submitted, 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 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 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 imposed a fine of Rs.20,000/-. The HLEC
submitted its report along with recommendations to the Vice
Chancellor on March 11, 2016.
21. She submitted that at the stage of appeal the decision is to be
taken only from record before the deciding Appellate Authority. The
Rules under the Statute 32(5) state that the punished student has the
right to appeal against the punishment and Vice-Chancellor is the
empowered authority to deal with Appeals. The Petitioner chose not
to avail opportunity given to 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.
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. Gargi Adhikari (Registration Number-805634,
Enrolment No: 15/4G/PI/001, Year of Admission: 2015,
Ph.D Student, School of International Studies and a r/o.
Room No.61, Koyna Hostel) guilty on the following counts.
The university 'Rules and discipline and proper conduct of
students of JNU', Clause 3-„Category 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 o
discipline and conduct‟.
As per the HLEC recommendation, Ms. Gargi Adhikari has
been found guilty of
a) Shouting objectionable slogans in wrongfully9 organized
event
This act on the part of Ms. Gargi Adhikari is seruous in
nature, unbecoming of a student of JNU and calls for
stringent disciplinary action against her.
The Vice-Chancellor, in exercise of his powers vested in him
under Statute 32 (5) of the Statutes of the University, has
ordered that Gargi Adhikari 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 his office, failing which
the hostel facility will be withdrawn with immediate effect
and further registration will not be allowed.
22. She submitted, 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 I have not shouted any „objectionable‟ slogan
anywhere at any time. Neither was I the organizer of any
event on 9th February 2016. Also, it is not clear to whom
and in what sense is the slogan which has been wrongfully
attributed to me „objectionable‟. Moreover, the Office Order
does not even specify exactly where, which specific slogan
and which specific „wrongful‟ event on 9th February 2016 is
being referred to.
23. However, the Petitioner in her reply to the Show Cause Notice
dated March 18, 2016 and Appeal dated May 02, 2016 did not deny
raising the slogans despite the fact that the HLEC clearly outlined the
slogans that were shouted. She stated, the Petitioner admitted to
responding to familiar slogans however, did not counter the slogans
that were outlined in the HLEC report. The Petitioner was seen
shouting objectionable slogans by the Security Officer and the same
was recorded in the HLEC report. The Petitioner's appeal was replied
to on May 03, 2016 by the Respondent and the Petitioner was asked to
meet the Chief Proctor to discuss the same. 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 this Court.
24. Further, she submitted that on June 16, 2016 the Petitioner
appealed against the HLEC proceedings wherein she stated that she
was unaware of the charges levelled against her and claimed that she
was not provided with documents. She stated, that had the Petitioner
appeared/deposed before the committee she would have been given
the opportunity to access all the documents. It is further submitted
that the Show Cause Notice and subsequently the Office Order dated
April 25, 2016 clearly mentioned the charges levelled against the
Petitioner. She submitted that 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 also after the enquiry period.
12. All communication from the University to the Committee and
vice a versa will be in writing.
25. She would submit, that 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 further submitted
that the Petitioner would have been given an opportunity to cross
examine had she come forward to record her statement. She referred
to the judgment of the Supreme Court in the matter of K.L. Tripathi V.
State Bank of India & Ors. (1984) 1 SCC 43.
26. According to Ms. Routray, without prejudice to the fact that the
allegations levelled against JNU authorities in the Affidavit dated
September 05, 2016 are wrong and denied. The Petitioner in the said
affidavit stated that-
As I entered the room which consisted of all the members of
the appellate authority, the first statement made by the
committee was that, they were to listen to my appeals
process. They declared that they are willing to cooperate
with me and listen to my appeals process. They declared
that they were willing to cooperate with me and listen to my
appeal...............
They persistently inquired about my presence in the event of
9th February. I clearly put forward my statement and said
that until and unless the documents that I have asked for
were provided to me and a break was made with the HLEC
report to initiate a fresh start, I could not state anything on
the matter. Moreover, I had already clarified to the HLEC
that I was present in my capacity as the Security Committee
Convenor of JNUSU. I also reiterated my doubts with the
entire process of HLEC, where the principal of natural
justice has been so clearly flouted. Upon this, the Vice
Chancellor accused me of not cooperating with the HLEC
process willingly, never communicating with the committee,
and getting to know my charges...................
The Appellate Committee stated that given my appeal that it
was difficult for me to make any comments on the HLEC
report, as no documents were supplied despite my repeated
requested to the committee, they said that they were willing
to share all the documents that clarified the accusations
brought by the University against me...............
Even after going through the depositions of some of the
Security Staff of JNU, I did not have any clarity as to what
were the charged against me. I could not find my name
being mentioned more than once in the entire bunch of
documents........
27. That the Respondent finally issued the Office Order No.
201/CP/2016 dated August 22, 2016 wherein it was stated that-
Evidence
1. She shouted objectionable slogans in wrongfully
organized event, which is evidenced from the deposition
of Mr. O.P. Yadav (Operations Manager, G4S) as
reflected in the HLEC report (Page 16).
Recommendations
Ms. Adhikari 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 highly justifiable. Therefore, the
punishment recommended by the HLEC i.e. "A fine of
Rs.20,000"stands as it is. In addition to this, she has to
submit an undertaking in a prescribed format to the Chief
Proctor.
28. She submitted, the University's autonomy means its right of
self-government particularly, it's right to carry on its legitimate
activities without interference from any outside authority. That the
Petitioner against whom charges were framed was given adequate
opportunities to defend herself, and the committee followed the rules
of natural justice while holding this enquiry. The 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 referred to the judgment of
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.
29. Ms.Routray stated, the Respondent has acted within their
authority, exercised their judgement 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. This conduct of the Petitioner does not
attract any empathy from the authorities. 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.
30. She states, 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 v. UOI and Ors 2006 (5) SCC 88.
She prays, this Court to dismiss the Writ Petition of the Petitioner.
31. Having heard the learned counsel for the parties and perused the
written arguments/submissions submitted by the counsels, it is noted
that the subject matter of this petition is, the orders passed by the
Competent Authority on April 25, 2016 whereby the Authority has
imposed a penalty of fine of Rs.20,000/- on the petitioner, which order
has been upheld by the Appellate Authority 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 respondent has failed to follow the procedural
Rule of Discipline and Proper Conduct among students of the
University framed in terms of Section 5(10) of JNU Act read with
Statute 32(5) of the Statutes of the University. The petitioner has not
violated any Rules of the University. The show cause notice is in
terms of residuary provision, the same is too wide and can encompass
any act of a student and should therefore be considered void. It is her
ground that under the provisions the Vice Chancellor is required to be
involved in the process of enquiry at the first instance. However, he is
not required to sit in appeal over the same matter. This is in violation
of basic principle that a person cannot sit in appeal against its own
order. The proceedings of the HLEC are in violation of principles of
natural justice as there was no notice to her. The action of the
respondent is actuated with malafides as is clear from the fact that the
University is now reviving stale proceedings by issuing notice to some
of the concerned students. The Appellate Authority has also
conducted the proceedings in violation of principles of natural justice.
The Appellate Authority has failed to provide any reasons for the
punishment imposed. The Appellate Authority has assumed that the
appeal of the petitioner was only directed against the constitution of
HLEC and not against the decision per-se. The nature of questions
asked by the Appellate Authority have no relevance to the charge
against the petitioner. The Appellate Authority had failed to provide
the petitioner with copies of statements and evidence collected by the
High Level Enquiry Committee and consequent use by the Appellate
Authority and failure to afford an opportunity to the petitioner to cross
examine the persons, test veracity of persons examined by the
Authority and to lead evidence in her defence, vitiates the process
adopted by the respondent. It is her ground that the Appellate
Authority has presumed guilt on the part of the petitioner. It is also
her ground that the Appellate Authority has failed to give sufficient
time to the petitioner to peruse the depositions against her and to
submit response to the same. It is also her ground, the Appellate
Authority failed to take into account that the proceedings of the HLEC
and action on the same have serious consequences for the petitioner's
academic career. It is also her ground, that the Appellate Authority
had failed to state the Disciplinary Rule, Statute or ordinance under
which the petitioner has been punished.
32. 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.
33. 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. In her appeal dated May 02, 2016, the petitioner
has stated the allegations against her are wrong. She has not been
given the materials on the basis of which the HLEC has concluded
against her. The show cause notice did not specify the charge against
her nor any material by which it was proposed to be established, was
shown. The enquiry against her had violated the Statutes and the
relevant Rules of the University. The HLEC report was truncated. It
was only the report, which was shared with her, not the depositions,
list of witnesses. She stated, that the finding of the HLEC is perverse.
34. 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) 4389/2016,
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 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.
That apart, even in these proceedings, the respondent has not filed on
record, 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 are filed
along with the written arguments in some cases, the same are in Hindi.
Even otherwise, the HLEC report refers to deposition of 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.
35. Further, it may be stated here that in her appeal dated May 02,
2016, the petitioner has raised several grounds. From the reading of
the order dated August 22, 2016, it is seen that the Appellate Authority
has not dealt with the said grounds. The Supreme Court in the case
reported as (2013) 6 SCC 530 Chairman, Life Insurance
Corporation of India and others v. A. Masilamani, in para 19 held as
under:-
"19. The word "consider", is of great significance. The dictionary
meaning of the same is, "to think over", "to regard as", or "deem to
be". Hence, there is a clear connotation to the effect that, there must
be active application of mind. In other words, the term "consider"
postulates consideration of all relevant aspects of a matter. Thus,
formation of opinion by the statutory authority, should reflect intense
application of mind with reference to the material available on record.
The order of the authority itself, should reveal such application of
mind. The appellate authority cannot simply adopt the language
employed by the disciplinary authority, and proceed to affirm its
order. (Vide: Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006)
11 SCC 147; and Bhikhubhai Vithlabhai Patel & Ors. v. State of
Gujarat & Anr., AIR 2008 SC 1771).
Suffice to state, in view of the aforesaid judgment of the Supreme
Court, it is expected that the Appellate Authority should have disposed
off the appeal by a reasoned and speaking order. This I say so, there is
nothing in the Rule, relating to appeal which says otherwise i.e it is
not necessary for the Appellate Authority to pass a reasoned order.
36. 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 herself 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.
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 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 on the proposition, in
view of the position of law noted above, but the limited time given by
the Appellate Authority to the petitioner to inspect the
documents/material/record and to give a hearing on the same day
would not be in conformity with the principles of natural justice.
Surely, the Authority empowered under the Statute is required to give
a reasonable opportunity to make the very purpose of the power being
exercised by such Authority meaningful.
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 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 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. 4389/2016 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. 32746/2016 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
OCTOBER 12, 2017/ak
