Reyazul Haque vs Jawaharlal Nehru University
2017 Latest Caselaw 5645 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment delivered on: October 12, 2017

+     W.P.(C) 7917/2016, CM No. 32762/2016
      REYAZUL HAQUE
                                                    ..... Petitioner(s)
                         Through:     Ms. Malavika Rajkotia,
                                      Mr.Vaibhav Vats and
                                      Ms.Soumya Maheshwari, Advs.
                         versus

      JAWAHARLAL NEHRU UNIVERSITY

                                                       ..... Respondent

                         Through:     Ms. Ginny J. Routray, Adv.
                                      with Ms. Anusha Ashok, Adv.

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. 204/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:-

2. The facts as averred by the petitioner in the writ petition are, the petitioner is a M.Phil student at the School of Art and Aesthetics. 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 17, 2016, HLEC sent a letter directing the petitioner to appear before the HLEC on February 18, 2016. On February 18, 2016, the HLEC sent second

notice to the petitioner directing him to appear before the HLEC on February 19, 2016. On February 19, 2016, the HLEC sent third notice to the petitioner directing him 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. 4388/2016 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.

SUBMISSIONS:-

3. It is the submission of Ms. Malavika Rajkotia, learned counsel for 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 this 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 his 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." In addition to this the VC withdrew the hostel facility of the Petitioner till July 21st 2016 and also 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. 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 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.

4. 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

5. The appellate authority is the Vice Chancellor whose approval had been granted for imposing the punishment under Office Order 151/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

6. 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

7. 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 his 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

8. 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

9. 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

10. 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

11. 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 his right to protest an activity to raise political issues which is his 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 him 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.

12. 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.

13. On the other hand, Ms. Ginny Routray, learned counsel for the respondent would submit, the Petitioner was given ample opportunities to appear and depose before the Enquiry Committee along with the liberty to carry materials and evidences in his 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 he was asked to appear before the Committee on February 18, 2016. Subsequently, a second notice was issued on February 18, 2016 asking him to appear before the Committee on February 19, 2016. A third notice was served to the Petitioner on February 19, 2016 asking him to appear before the committee on February 26, 2016, however, the Petitioner abstained himself from appearing before the committee and clearing his stand. She submitted, the Petitioner on February 29, 2016 addressed a letter to the HLEC wherein he stated that-

I have received your communication No.HLEC/JNU/2016/2088, (dated February 17, 2016), HLEC/JNU/2016/07 (dated February 18, 2016) and HLEC/JNU/2016/2220,21 (dated February 19, 2016) asking me to appear on 18th February, 19th February and 26th February, respectively, before you.

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 c 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. According to her, 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 very well residing within the campus and had hand delivered all his letters/communications to the Administrative Building. It is thus, evident that the Petitioner deliberately avoided appearing before the Committee and made baseless excuses not to do so. She submitted that had the Petitioner appeared/deposed before the committee he would have been given the opportunity to access all the documents. Thus, he himself failed to avail the opportunity provided to him. She submitted that the Petitioner would have been given an opportunity to cross examine had he come forward to record his 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 (Mr. Reyazul Haque, Registration Number: 41976, Enrolment

No: 14/80/HA/011, Year of Admission: 2014, M.A. Student, School of Art and Aesthetics, 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. Routrary, the Show Cause Notice further asked the Petitioner to explain why disciplinary action should not be initiated against him for indulging in the above mentioned acts. The Petitioner was asked to submit his reply to the Chief Proctor's Office latest by March 16, 2016, 17:00 hrs, which later extended till March 18, 2016 failing which it would be presumed that the Petitioner has nothing to say in his defense and the office would proceed further in the matter. The Petitioner respondent to the Show Cause Notice on March 18, 2016 wherein he stated that he was supplied with an incomplete HLEC report. According to Ms. Routray, 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 the number of students were named in it. The Petitioner further stated that Nowhere in the document has my name been mentioned, and as such I am at loss as to why I was issued the "show-cause notice" in the first place. Ms. Routray submitted that the Petitioner was very much involved in the organization of the

event, this can be corroborated by the deposition of Mr. V.P. Yadav who clearly stated that the Petitioner was among the students present at Sabarmati dhaba and was putting up posters, and making arrangements for the objectionable cultural event. Further, the Petitioner's name was in the Poster. She referred to the deposition of Mr. V.P. Yadav filed as an annexure in the Counter Affidavit for Gargi Adhikari Vs. Jawaharlal Nehru University- W.P. (C) 7912/2016 and the Written Submissions for Anant Prakash Narayan Vs. Jawaharlal Nehru University- W.P. (C) 7934/2016, Chintu Kumari Vs. Jawaharlal Nehru University W.P. (C) 7936/2016 and Shweta Raj Vs. Jawaharlal Nehru University W.P. (C) 7943/2016. It was her submission that the Petitioner continued to state that the committee was non-representative and biased, which is incorrect as 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 him to examine.

17. Ms. Routray, submitted that 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 him, 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 submitted, the Petitioner is a student studying in JNU and resident of Hostel in JNU. The Respondent is Jawaharlal Nehru University (JNU) established and incorporated by an Act of Parliament in the year 1966.

19. 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.

20. 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."

According to her, 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.

21. She submitted, 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 submitted, 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:

1. To enquire into the incident and ascertain sequence of events.

2. Identify any lapses that may have taken place, and

3. On the basis of the findings, recommend actions to be initiated by the University as per its statutes and guidelines.

22. She submitted, the HLEC followed Standard Operating Procedures devised by the HLEC specifically for the said enquiry

during the course of enquiry. The HLEC spent considerable time in examining all the evidences pertaining to the event which included taking written depositions of eye witnesses and security officials, posters, SMS withdrawing consent to hold Anti-National event, form for seeking permission, examining the video clips submitted by JNU Security Officer and scrutinizing various documents/ posters related to this incident. The video submitted to the Committee by the CSO was duly authenticated by a Government approved agency: Truth Labs, Bangalore. Subsequent to enquiry procedure, the HLEC recommended that the Petitioner be charged under Category II of (Rules of Discipline and Proper Conduct of Students of JNU) of the statutes of the University and imposed a fine of Rs. 20,000/-. The HLEC submitted it report along with recommendations to the Vice Chancellor on March 11, 2016.

23. 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.

24. The Respondent subsequently on April 25, 2016, after more than a month, passed an office order wherein it was stated that-

With reference to the 9 February 2016 incident of JNU campus, the High Level Enquiry Committee (HLEC) has found Mr. Reyazul Haque (Registration Number: 41976, Enrolment No: 14/80/HA/011, Year of Admission: 2014,

M.A. Student, School of Art and Aesthetics and a r/o Room No, 32, Mahi Hostel) guilty on the following counts.

The university "Rules and discipline and proper conduct of students of JNU', Clause-II, Sub-Category (xxv) prohibits „Any other act which may be considered by the VC or any other competent authority to be an act of violation of discipline and conduct‟.

As per the HLEC recommendation, Mr. Reyazul Haque has been found guilty of

a) Lending his 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 Mr. Reyazul Haque is serious in nature, unbecoming of a student of JNU and calls for stringent disciplinary action against him. In view of this and also keeping his career prospects in mind, the Vice Chancellor has taken a somewhat lenient view in the matter.

Mr. Reyazul Haque 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 him. He 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 future registration will not be allowed.

25. She stated, subsequently on May 02, 2016, the Petitioner in his letter to the Vice Chancellor appealed to withdraw the Office Order dated April 25, 2016 wherein he stated that-

These charges against me are false and completely 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 show cause and the Order dated April 25, 2016 stated the charges against him as lending his name in the poster. However, the Petitioner does not give any defence with regard to his name on the poster. Therefore, there was not an effective response from the Petitioner even after the abovementioned Order was passed.

26. According to her, this Court vide Order dated May 13, 2016 directed that the Order shall not be given effect till the appeals of the petitioner is heard and disposed of. Subsequently, the Petitioner was given provisional admission to continue in the present semester keeping in view of the Order dated May 13, 2016 of this Court.

27. That the Respondent finally issued the Officer Order No.204/CP/2016 dated August 22, 2016 wherein it was stated that-

Evidence

1. Mr. V.P. Yadav in his security depositions dated 09.02.2016 wrote that Mr. Reyazul Haque was among the students present at Sabarmati dhaba and putting poster, installing mike and making arrangements for the objectionable cultural event.

2. He lent his name to be printed in an objectionable poster titled "Against the Brahmanical collective conscience! Against the judicial killing of Afzal Gura and Maqbool Bhat..." in the name of cultural evening thus arousing communal and caste feelings.

Recommendations

He has not made any specific appeal to absolve himself from the charges made by the HLEC. On the contrary he has questioned the formation of HLEC itself. The Committee thereupon considers the recommendations of the HLEC on the aforesaid student to be highly justifiable. Therefore, appellate committee recommended that the punishment recommended by the HLEC "Fine of rs.20,000" stands as it is. In addition to it, he has to give an undertaking on a

prescribed format to Chief Proctor office.

She stated, the Order dated April 25, 2016 was passed against the Petitioner for lending his name to the objectionable poster. However, the Appeals Committee noted that his name is mentioned in V.P. Yadav's deposition.

28. Ms. Routray would submit without prejudice, the allegations levied against JNU authorities in his Affidavit dated September 05, 2016 are wrong and denied. The Petitioner stated that-

They then asked me what I wanted to say about my guilt and the punishment. Vibha Tandon fished out a poster of the program and showed that my name was there in the poster. She asked me why I did not object to my name on that poster. I said that I will not say anything until they first provide me with a copy of all the complaints, evidence and documents.

They showed me a bunch of think files that were lying on the desk and said, they are here. You can see. I refused to see the files in such a short time, and I demanded a copy of the documents. They insisted that I had to see them there itself claiming that all of the student who had appeared before the committee before me had seen them there itself, and there was nothing wrong in seeing those files there. When again I refused to see, they said that Ashutosh Kumar who went just before me, also saw them and I must see those files. I again

repeated that what could I do with having a look at a bunch of files for a few minutes.

They kept insisting that I should have faith in them. Vibha Tandon was constantly repeating that they did not have lunch that day, because they wanted to help all of us and were so concerned about us.

At no point was I offered any opportunity to either cross- examine the witnesses or present my witness.

29. She would submit, that from a reading of the above it is evident that the Respondent fully cooperated with the students however, the Petitioner himself refused to go through the documents. The Petitioner abused the opportunity provided to him and therefore has no locus to claim indulgence of this Court. Further, the Petitioner forfeited his right to cross examine by refusing to inspect the documents. She would submit, the Petitioner/other students were given sufficient time to go through the documents. According to her, the Affidavit dated September 05, 2016 is an afterthought after the Order dated August 22, 2016 was passed. Had the Petitioner genuinely been aggrieved with the procedure followed by the Appellate Committee, he could have come forward and stated the same after June 16, 2016. Moreover, even in the above mentioned Affidavit the Petitioner does not put forward his stand regarding his name on the objectionable poster.

30. 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 Appellant against whom charges were framed was given adequate opportunities to defend himself, and the committee followed the rules of natural justice while holding this 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.

31. She submitted, 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 his hostel, at his various addresses and was asked to show cause and was also given opportunity to defend himself before the enquiry committee. The first notice was sent on February 17, 2016, however, the Petitioner left the campus. This conduct of the Petitioner does not attract any empathy from the authorities. The Petitioner was given ample opportunity to defend but he himself lost the opportunity by not even responding to the simple queries raised by the Appellate Committee.

32. She would submit, the Legal Submission made and judgements

relied upon in Umar Khalid V. JNU, W.P. (C) 7826/2016 and Anirban

Bhattacharya V. JNU, W.P. (C) 7828/2016 may be read as part and

parcel of the present submissions. The judgments are:-

(i) K.L. Tripathi v. State Bank of India and Ors 1984 (12) SCC

43;

(ii) State of Gujarat v. Pagi Bhura Bhai Rumal Bhai AIR 1969

Gujarat 260;

(iii) Ajeet Seeds Ltd. V. K. Gopal Krishnaiah 2014 (1) SCC 685;

(iv) Chief Commissioner of Income Tax (Administration)

Bangalore v. V.K. Gururaj and Ors. 1996 (7) SCC 275;

(v) State of Punjab v. Bakhshish Singh 1997 (6) SCC 381;

(vi) Suresh Koshy George v. University of Kerala AIR 1969 SC

198;

(vii) State Bank of Patiala v. S.K. Sharma 1996 (3) SCC 36;

(viii) Ram Chander Roy v. Allahabad University AIR 1956 ALL 40;

(ix) V. Ramana v. APSRTC & Ors 2005 (7) SCC 335;

(x) M.V. Bijlani Vs. UOI & Ors. (2006) 5 SCC 88.

In view of the above facts and circumstances, she prays for the dismissal of the writ petition.

33. Having heard the learned counsel for the parties and perused the written submissions/arguments submitted by the counsels, it is noted that the subject matter of this petition is, the orders passed by the Competent Authority dated April 25, 2016 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 was held without following the procedure as laid down in Statute 32(5) of the Statutes of the University. As per Statute 32(5), the University has a proctorial system whereby administration of students related matters pertaining to all acts of indiscipline are delegated to the Chief Proctor. The Chief Proctor has violated the Rules as laid down in the Statutes. The constitution of HLEC is illegal being non representative and biased. The petitioner's alleged acts have been classified as a category-II misconduct falling

under Clause (xxv), which provision is too wide and can encompass any act of a student and therefore is void. The Vice Chancellor, who approved the punishment cannot sit in appeal over the same. This is in violation of basic principle that a person cannot sit in appeal against its own order. The impugned orders/proceedings are in violation of the judgment of this Court in Jawaharlal Nehru University V. Flora Gupta (supra) and Amritshava Kamal v. Jawaharlal Nehru University (supra). The action of the respondent is actuated by malafides. The findings of the Committee as well as the Appellate Authority are perverse. The Appellate Authority has failed to observe the principles of natural justice, inasmuch as it did not provide the petitioner the copies of all the statements and evidence collected by the HLEC. The language adopted by the Appellate Authority shows that it is unfamiliar with the basic principles of natural justice; it presumed the guilt of the petitioner; it did not give enough time to peruse the depositions against the petitioner effectively denying him the opportunity to submit his response to the same; the Appellate Authority has limited itself to the question of quantum of punishment but it has failed to provide any reasons for the punishment imposed.

34. 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.

35. There is no dispute that the petitioner had filed an Appeal dated May 02, 2016. It is a conceded fact that the Vice Chancellor- Appellate Authority had held its meeting on June 16, 2016. There is also no dispute that the petitioner was shown the record of the enquiry. The parties are at variance about the duration for which the record was shown. It is a conceded fact that a hearing was given to the petitioner on the same day, which resulted in the passing of the appellate order on August 22, 2016. It is noted that on June 16, 2016, the petitioner gave a further representation to the Appellate Authority. In his representation dated June 16, 2016, the petitioner had referred to the proceedings before this Court in the earlier writ petition filed by him. He had sought certain documents. He had also stated that only two days time was given to prepare the appeal, which according to him was inadequate. It is the case of the petitioner in the writ petition that the Appellate Authority has failed to supply the complete set of documents to the petitioner.

36. 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. 4388/2016, 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 him to peruse the same and make submissions on the same day. Even assuming, three hours were granted to the petitioner to inspect the documents on June 16, 2016, some time need to have been granted to the petitioner to apply his mind on the evidence so noted by him during the inspection, which was against him and to make an effective appeal. Surely, for such purposes, he may have required reasonable time to prepare his case, which may include seeking legal advice. In fact, the petitioner vide his letter dated June 16, 2016 reiterated his earlier request to make available the documents to make appeal more meaningful. The procedure evolved by the Appellate Committee to allow inspection of the documents/records and hearing him could not be in conformity with the principles of natural justice and the law laid down by the Supreme Court in the case of Associated Cement Company Ltd. v. Workmen and another (1964) 3 SCR 652, wherein the Supreme Court was considering an appeal arising out of an industrial dispute between the appellant and the respondent workman with regard to dismissal of five workmen employed by the appellant company. One of the issue was that before the enquiry was actually held on June 11, 1952, notice was not given to Malak Ram, one of the workmen telling him about the specific date of the enquiry. The

Supreme Court held that failure to intimate to the workman concerned about the date of the enquiry may, by itself, not constitute an infirmity in the enquiry, but, on the other hand, it is necessary to bear in mind that it would be fair if the workman is told as to when the enquiry is going to be held so that he has an opportunity to prepare himself to make his defence at the said enquiry and to collect such evidence as he may wish to lead in support of his defence. The Supreme Court held, on the whole, it would not be right that the workman should be called on any day without previous intimation and the enquiry should begin straightaway. The Supreme Court held, such a course should ordinarily be avoided in holding domestic enquiries. In other words, the Supreme Court has held that an incumbent should be given sufficient opportunity/time to consider the evidence, which has come against him and to collect evidence in support of his defence. In the case in hand, no such time was given to the petitioner. That apart, if the material is being shown to the petitioner, on June 16, 2016, surely, some time should have been given to the petitioner to enable him to supplement his appeal already filed by him on May 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 are requisitioned before the Court. I note, the respondent has filed documents including deposition of Navin Yadav. The Appellate Authority order refers to the deposition of V.P. Yadav. The same was filed in these proceedings by the respondent along with written submissions on April 24, 2017, after the written arguments were heard and judgment was reserved i.e. on April 20, 2017. Even assuming that deposition is filed in this petition along with written arguments, the same is in Hindi and 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. Suffice to state, 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).

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. Further, in his appeal dated May 02, 2016 and representation dated June 16, 2016, the petitioner had raised grounds, which have already been referred to above.

37. 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 himself 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. Insofar as the judgment of the Supreme Court in the case of Suresh Koshy George (supra) is concerned, in para 7 on which reliance was placed by Ms. Routray, the Supreme Court was considering a submission that the Vice Chancellor had not made available to the appellant a copy of the report submitted by the Inquiry Officer before asking him to make a representation. The Supreme Court rejected the contention by holding that the enquiry was held after due notice to him and in his presence. He was allowed to cross examine the witnesses examined in the case and he was permitted to adduce evidence in rebuttal of the charge. The Supreme Court also

held, no Rule was brought to its notice, which stipulated the supply of report. The Supreme Court also observed that it was not the case of the appellant that he had asked for the copy of the report, which was denied to him. The judgment relied upon by Ms.Routray is distinguishable, inasmuch as the petitioner did not participate in the proceedings/the proceedings were held in his absence. Further, the Appellate Authority itself has offered to allow inspection of the documents/record of HLEC. The petitioner had asked for the documents/record/material in his appeal dated May 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 him on May 02, 2016. The judgment has no applicability, at least on the limited issue that is being decided by this Court.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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. 4388/2016 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. 32762/2016 (for stay)

Dismissed as infructuous.

V. KAMESWAR RAO, J OCTOBER 12, 2017/ak