Page No.# 1/12 vs The Union Of India And 3 Ors
2022 Latest Caselaw 4840 Gua

                                                                 Page No.# 1/12

GAHC010209672022




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : WP(C)/6695/2022

         MRS. MAMONI BARO AND ANR.
         M/O- MASTER JASHANT BORO, VILL- KARNACHARA, P.O. HUDUKHATA,
         DIST.- BAKSA, PIN- 781318

         2: MASTER JASHANT BORO (MINOR)
          S/O- MRS. MAMONI BORO
         VILL- KARNACHARA
          P.O. HUDUKHATA
          DIST.- BAKSA
          PIN- 78131

         VERSUS

         THE UNION OF INDIA AND 3 ORS.
         REP. BY THE SECY., MINISTRY OF DEFENCE, ROOM NO. 234, SOUTH
         BLOCK, MINISTRY OF DEFENCE, NEW DELHI, PIN- 110011

         2:THE SAINIK SCHOOLS SOCIETY
          ROOM NO. 101
          D-1 WING
          SENA BHAWAN
          NEW DELHI
          PIN- 110011

         3:THE PRINCIPAL
          SAINIK SCHOOL
          GOALPARA
          P.O. RAJAPARA
          DIST.- GOALPARA
          PIN- 783133

         4:THE VICE PRINCIPAL
          SAINIK SCHOOL
          GOALPARA
                                                  Page No.# 2/12

             P.O. RAJAPARA
             DIST.- GOALPARA
             PIN- 78313

Advocate for the Petitioner   : MR. A K BARUAH

Advocate for the Respondent : ASSTT.S.G.I.




             Linked Case : WP(C)/6696/2022

            MRS. GITABALI SINGHA AND ANR.
            M/O MISS KH. DEEPIKA SINGHA

            R/O SWAMIJI ROAD
            ITAKHOLA
            MANIPURI PARA

            P.O.- SILCHAR

            P.S.- SILCHAR (SADAR)

            DIST.- SILCHAR
            PIN- 788001.

            2: MISS KH. DEEPIKA SINGHA
            (MINOR)

            D/O GITABALI SINGHA

            R/O SWAMIJI ROAD
            ITAKHOLA
            MANIPURI PARA

            P.O.- SILCHAR

            P.S.- SILCHAR (SADAR)

            DIST.- SILCHAR
            PIN- 788001.
            VERSUS

            THE UNION OF INDIA AND 3 ORS.
            REP. BY THE SECRETARY
                                                                 Page No.# 3/12

MINISTRY OF DEFENCE
ROOM NO. 234
SOUTH BLOCK
MINISTRY OF DEFENCE
NEW DELHI
PIN- 110011.

2:THE SAINIK SCHOOLS SOCIETY
ROOM NO. 101
 D-1 WING
 SENA BHAWAN
 NEW DELHI
 PIN- 110011
 3:THE PRINCIPAL
SAINIK SCHOOL
 GOALPARA
 P.O. RAJAPARA
 DIST.- GOALPARA
 PIN- 783133
 4:THE VICE PRINCIPAL
SAINIK SCHOOL
 GOALPARA
 P.O. RAJAPARA
 DIST.- GOALPARA
 PIN- 783133
 ------------

Advocate for : MR. A K BARUAH Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS.

Linked Case : I.A.(Civil)/3126/2022

MRS. MAMONI BARO AND ANR.

M/O- MASTER JASHANT BORO VILL- KARNACHARA P.O. HUDUKHATA DIST.- BAKSA PIN- 781318

2: MASTER JASHANT BORO (MINOR) S/O- MRS. MAMONI BORO VILL- KARNACHARA P.O. HUDUKHATA DIST.- BAKSA PIN- 781318 VERSUS Page No.# 4/12

THE UNION OF INDIA AND 3 ORS.

REPRESENTED BY THE SECY.

MINISTRY OF DEFENCE

SOUTH BLOCK MINISTRY OF DEFENCE NEW DELHI PIN- 110011

2:THE SAINIK SCHOOLS SOCIETY

D-1 WING SENA BHAWAN NEW DELHI PIN- 110011 3:THE PRINCIPAL SAINIK SCHOOL GOALPARA P.O. RAJAPARA DIST.- GOALPARA PIN- 783133 4:THE VICE PRINCIPAL SAINIK SCHOOL GOALPARA P.O. RAJAPARA DIST.- GOALPARA PIN- 783133

------------

Advocate for : MR. A K BARUAH Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS.

Linked Case : WP(C)/6698/2022

MANI BORO AND ANR.

F/O JESSIKA BORO

VILL. AND P.O.- 1 KATOLIGAON DIST.- BAKSA (BTAD) PIN- 781318.

2: JESSICA BORO (MINOR)

D/O MANI BORO

VILL. AND P.O.- 1 KATOLIGAON Page No.# 5/12

DIST.- BAKSA (BTAD) PIN- 781318.

VERSUS

THE UNION OF INDIA AND 3 ORS.

REP. BY THE SECRETARY MINISTRY OF DEFENCE

SOUTH BLOCK MINISTRY OF DEFENCE NEW DELHI PIN- 110011.

2:THE SAINIK SCHOOLS SOCIETY

D-1 WING SENA BHAWAN NEW DELHI PIN- 110011 3:THE PRINCIPAL SAINIK SCHOOL GOALPARA P.O. RAJAPARA DIST.- GOALPARA PIN- 783133 4:THE VICE PRINCIPAL SAINIK SCHOOL GOALPARA P.O. RAJAPARA DIST.- GOALPARA PIN- 783133

------------

Advocate for : MR. A K BARUAH Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS.

BEFORE

HON'BLE MR. JUSTICE NELSON SAILO

Date of hearing & judgment : 08.12.2022

JUDGMENT & ORDER (ORAL) Page No.# 6/12

Heard Mr. A K Baruah, learned counsel for the petitioners and Mrs. A Gayan, learned CGC appearing for all the respondents. Since common question and issues are involved in all the 3 (three) writ petitions, are taken up together for disposal by this common judgment & order.

[2.] Brief facts of the case as projected by the petitioners may be noticed at the outset. In WP(C) No. 6695/2022, the petitioner No. 2 is a 14 year old boy who was studying in Class-IX in Sainik School, Goalpara and the petitioner No. 1 is his mother. In WP(C) No. 6696/2022, the petitioner No. 2 is the 12 year old girl who was studying in Class-VII in the same school and the petitioner No. 1 is her mother. Likewise, in WP(C) No. 6698/2022, the petitioner No. 2 is a 13 year old girl who was studying in Class-VII in the same school and the petitioner No. 1 is her father. The Sainik School, Goalpara is a co-educational school and it has got students from Class-I to Class-XII. That on 07.09.2022 at around 4:20 PM, a classmate as well as a roommate of the petitioner No. 2 in respect of WP(C) Nos. 6695 & 6696/2022 requested them to accompany them (separately) to the wash-room during the games period and on reaching the washroom they found one of their friend along with another girl student engaging in some conversation. Similarly, the petitioner No. 2 in WP(C) No. 6698/2022 at the relevant time visited the washroom for refreshing herself as she was having menstruation. Soon thereafter, the petitioner students left the place to re-join their other class mates and resumed with their other activities.

[3.] In view of the meeting on 07.09.2022 itself, the petitioner students were separately called in the administration office of the school by the school authorities and were verbally threatened and mentally pressurized to give them an undertaking to the effect that they had committed some wrong and should be expelled from the school. The next date on 08.09.2022, the petitioners students were forced to write certain self incriminating statements against themselves and having no alternative, Page No.# 7/12

they succumbed to the various mental pressures applied to them. Their parents were informed over telephone on 10.09.2022 and they visited the school on 11.09.2022, the respondent No. 4 issued an order of suspension in respect of the petitioner No. 2 in WP(C) No. 6695/2022 from school w.e.f. the same date i.e. 11.09.2022. As for the parents in the other two writ petitions, they were asked to take their child home till the conclusion made by the School Discipline Committee who was said to be looking into the matter.

[4.] According to the petitioners, prior to the suspension of the petitioner students orally and in writing, no show-cause notice was issued to them nor was any opportunity given to them to enable them to explain their stand before the School Discipline Committee. It is the further case of the petitioners that the petitioner students were forced to apply for Transfer Certificate and after being warned that if the same was not applied for, they would be nevertheless issued the same with certain remarks which would create some difficulties for the petitioner students to pursue their further studies in other institutions. Face with such situation, they were forced to apply for the Transfer Certificate which accordingly was issued to them. Being aggrieved, they are before this Court.

[5.] The learned counsel for the petitioner submits that prior to issuance of the suspension order or suspending the petitioner students, no opportunity was given to them by way of a show-cause notice and the order and decision to suspend them being unilateral, the same should be interfered with by this Court. That the petitioners did not apply for the Transfer Certificate of their own free-will but it was applied for under duress. The petitioners did not have any option but to submit an application for issuance of Transfer Certificate and that the action of the respondents being most arbitrary and without any a justification, the interference of this Court is called for.

[6.] The learned counsel further submits that the petitioners were not informed about the charges which according to the respondent authorities had been violated.

Page No.# 8/12

The alleged incident was said to have happened on 07.09.2022 and the School Disciplinary Committee by the next day i.e., on 08.09.2022 itself had concluded their so called enquiry against the petitioners students in gross violation of the principles of natural justice and therefore, the decision to suspend them and the issuance of the Transfer Certificate cannot be sustained in law and should be set aside. The learned counsel in support of his submissions that no opportunity was given to the petitioners students to explain as to why they should not be suspended or be given Transfer Certificate besides not being issued any charges which they were alleged to have committed has relied upon the following authorities:-

(1) Bhabendra Kumar Kalita vs. Union of India (UOI) & Ors, AIR 1995 Gau 121.

(2) Judgment dated 14.12.2021 passed by the High Court of Sikkim in WP(C) No. 11-14/2021 (Praveen Basnet vs. State of Sikkim & Ors.)

(3) Judgment dated 04.11.1993 passed by the High Court of Madras in WP(C) No. 18297/1993 (C. Arun Prasad vs. The Headmaster, Municipal H.S School, Mayiladuthurai & Ors.

[7.] Mrs. A Gayan, learned CGC, on the other hand, submits that the petitioners have failed to challenge the order of suspension and they have only challenged the issuance of the Transfer Certificate to them. She submits that, in fact, the order of suspension preceded the issuance of the Transfer Certificate and it was incumbent on the part of the petitioners to challenge the same and since they have failed to do so, no relief can be granted to the petitioners. She also submits that the Transfer Certificate were issued to the petitioners at their own request and therefore, no fault can be placed upon the respondent for accepting their request. She further submits that an enquiry was made by the school Disciplinary Committee and pending Page No.# 9/12

finalization of the enquiry, the petitioner students were suspended. It was only after the enquiry was concluded and accepted by the Principal of the school that the action can be taken against the students concerned. However, the parents of the petitioners students themselves in the meantime had applied for the Transfer Certificate and therefore, the same was issued to them without any adverse remarks in the certificates. She submits that it is well within the right of the authorities in the institution to take a decision and it is not always necessary for the authorities to afford an opportunity to the student concerned prior to taking a decision on the basis of assessment made by the constituted committee. In support of her submission, she has relied upon the case of Jawaharlal Nehru University vs. B.S Narwal, reported in (1980) 4 SCC 480 and The Bihar School Examination Board vs. Subhas Chandra Sinha & Ors., reported in (1970) 1 SCC 648.

[8.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the application for issuance of Transfer Certificate submitted by the parents of the petitioner students.

[9.] As may be seen from the facts projected by the parties, a meeting of girls students and boys students took place in the wash-room on 07.09.2022 and pursuant thereto, the petitioners students were suspended from the school and thereafter, were given Transfer Certificate. It is the case of the petitioners that the petitioner students were as a result forced to write certain self incriminating statements against themselves and that their parents were summoned to the school and which was followed by their suspension. Later on, they were asked to apply for Transfer Certificate not out of their own choice but due to compulsion, they had applied for the Transfer Certificate. There is no doubt to the fact that the petitioners students are in their mid-session and therefore, under ordinary circumstances, Transfer Certificate one would not apply for the same. But yet, in the present case, according to the respondent authorities, Transfer Certificate was given on their own application. The Page No.# 10/12

petitioner in WP(C) No. 6695/2022 is also said to have registered himself for appearing in matriculation for Academic year 2023-24 under the CBSE from the said school in Goalpara. Therefore, it appears that there was compelling circumstance leading to the submission of application for Transfer Certificate by the petitioners. Although it is the case of the respondents that no challenge has been made to the suspension of the petitioner students but the fact remains that issuance of the Transfer Certificate is the offshoot of the alleged incident as well as the suspension of the petitioner students.

[10.] I have also perused the records produced by the learned CGC wherein, there is a report made by the Standing Committee on Discipline of the school recommending the withdrawal of all the students who were found to be involved in the incident, including the petitioner students who are before this Court. The report was laid before the Principal and the Principal approved the recommendation made by the Standing Committee and asked for preparation of a draft withdrawal letter to be put up. However, before the withdrawal letter could be issued, Transfer Certificates was issued to the petitioner students.

[11.] This Court in Bhabendra Kumar Kalita (supra) which is also a case of withdrawal of a student from the Sainik School in Goalpara, the petitioner's son, on the given facts and circumstances, was withdrawn from the school and the same was challenged before this Court. The student concerned had left the school on his own and therefore, he was withdrawn from the school. Deciding the case in favour of the petitioner, this Court held that from the records produced before the Court, there was nothing to show that the petitioner was given an opportunity to explain under what circumstance he had left the school. Although, some explanation was given in the affidavit-in-opposition of the respondents that the student had admitted his guilt but Court was of the view that under the facts and circumstance it could not be ruled out that the same was written under some threat or influence. As such, Court came to a Page No.# 11/12

finding that the drastic action of issuing a withdrawal letter without following the principles of natural justice was not proper and accordingly, the withdrawal was interfered with.

[12.] In coming to the above finding, the Apex Court decision in Dr. Rash Lal Yadav vs. State of Bihar & Ors., (1994) 5 SCC 267 was also taken into consideration. The Apex Court in that case had observed that with the passage of time, a third element has been introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its miscarriage. If the statute confers drastic powers it goes without saying that such powers must be exercised in a proper and fair manner. The rules of natural justice operate as checks on the freedom of administrative action and often prove time- consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by adherence to the expended notice of rule of natural justice. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness.

[13.] The above observations and findings of the Apex Court is also found to be squarely applicable to the present case as the respondents have taken the stand that Clause 3.32 of Sainik School Society which is the provision for withdrawal on disciplinary ground, does not contain any provision for issuing a show-cause notice to the cadets and accordingly, there is no requirement of showing issuing a show-cause notice to the cadets before issuing an order of withdrawal and accordingly, there was no requirement of issuing a show-cause notice to the petitioner students.

[14.] The case of Praveen Basnet (supra) and C. Arun Prasad (supra) relied upon by the learned counsel for the petitioners are also on the issue of violation of principles of natural justice prior to issuance of order of expulsion to the student concerned from the institution. Since the same has already been dealt with in the Page No.# 12/12

decision referred to in the preceding paragraph, detailed reference of the same is found to be not necessary. As regards, the decisions relied upon by the learned CGC i.e. Jawaharlal Nehru University (supra), The Bihar School Examination Board (supra) , the matters are pertaining to the assessment made by qualified Academic authorities in removing the student concerned from the institution for want of academic performance. In the present case, we are not concerned with the Academic performance of the petitioner students and therefore, the authority relied upon is found to be not applicable.

[15.] Thus upon due consideration of the case in its entirety, I am of the considered view that there has been gross violation of the principles of natural justice on the part of the respondent authorities in deciding the proceedings against the petitioners students by suspending them from the school and thereafter, issuing them the Transfer Certificate. The same is found to be unsustainable and accordingly, the respondent authorities are directed to allow the petitioner students to resume their respective class and their place in the school. The Transfer Certificate issued to each of the petitioners students shall not be acted upon.

[16.] The writ petitions accordingly stands disposed of. No cost.

JUDGE

Comparing Assistant