Gujarat High Court

Kundankumar Navalkishor Mahato vs The Maharaja Sayajirao ... on 9 February, 2023

Bench: Bhargav D. Karia

     C/SCA/21085/2022                             JUDGMENT DATED: 09/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 21085 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

===============================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

===============================================================
                 KUNDANKUMAR NAVALKISHOR MAHATO
                               Versus
            THE MAHARAJA SAYAJIRAO UNIVERISTY OF BARODA
==============================================================
Appearance:
MR HITESH L GUPTA(3937) for the Petitioner(s) No. 1
MR MITUL K SHELAT(2419) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
==============================================================

    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 09/02/2023

                             ORAL JUDGMENT

1. Heard learned advocate Mr. Hitesh L. Gupta

for the petitioner and learned advocate Mr. Mitul

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

Shelat for the respondents.

2. Having regard to the controversy in the

narrow compass and with the consent of the

learned advocates of both the sides, the matter

is taken up for hearing.

3. Issue Rule, returnable forthwith. Learned

advocate Mr.Mitul K. Shelat waives service of

notice of rule for the respondents.

4. By this petition under Article 226 of the

Constitution of India, the petitioner has prayed

to quash and set aside the communication dated

13th May, 2022 whereby, the petitioner was ordered

to be debarred permanently from the respondent-

University under Ordinance 290 for

Display/Exhibition of Objectionable art work in

Department of Sculpture Faculty of Fine Arts.

5. The petitioner has also prayed to set aside

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

the order of rejection of Appeal preferred by the

petitioner before the respondent-University

against the order of debar.

6.1. The brief facts of the case are that the

petitioner, after graduation from Banaras Hindu

University got admission at the Department of

Sculpture Faculty of Fine Arts of the respondent-

University and was pursuing first year studies of

his Post Graduation Degree.

6.2. On 2nd May, 2022, the petitioner appeared for

his viva-voce before the Examination Committee

and presented his experimental art work for their

review. Accordingly to petitioner, this was

supposed to be a very confidential process in

which only the concerned students and examiners

are supposed to remain present and the art work

submitted by the petitioner was never meant for

public display.

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

6.3. It is also the case of the petitioner the art

work of the petitioner was a piece of stencil

which was a collage of newspaper cuttings that

are selectively collected and placed over a

cardboard.

6.4. It appears that the petitioner created an art

work of collage of newspaper cuttings over

cutouts of Hindu Goddesses made of Mount Sheet.

6.5. The petitioner was asked about the concept of

this art work on 2nd May, 2022 during the course

of viva-voce examination and the petitioner was

thereafter told by the examiners that the art

work of the petitioner was addressing sensitive

subjects and could be misunderstood by layman

during public display and therefore, the

petitioner was asked to remove his art work and

accordingly, petitioner removed the same.

6.6. It appears that the art work of the

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

petitioner was photographed by some unknown

person and was circulated over social media

which created a ruckus at the respondent-

University.

6.7. According to the petitioner, the petitioner

left for his village at Bihar on 05.05.2022. The

petitioner thereafter informed Dr. C. N. Murthy

explaining his situation that he was at his

native village and thereafter communicated on

whatsapp with Dr. Murthy and he was asked to

tender apology in his own handwriting. An FIR is

also filed against the petitioner under Sections

295A and 298 of the Indian Penal Code on

09.05.2022 for alleged display of all

objectionable art work.

6.8. The respondent-University issued show-cause

notice dated 12.05.2022 calling upon the

petitioner to show cause why he should not be

debarred permanently as a student from pursuing

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

the study in any of the Faculty/Institution of

the respondent-University as per provision of

major penalty under Ordinance 290 of the

University within 24 hours on or before 3:00 p.m.

on 13th May, 2022. The petitioner on receipt of

such show-cause notice, left his village and

reached to the respondent-University at 2:40 p.m.

which fact is available from the correspondences

of Emails placed on record by the petitioner with

the respondent-University. However, according to

the petitioner, he was not heard and the impugned

order dated 13.05.2022 was passed on the basis of

the alleged confession of the petitioner.

6.9. The petitioner thereafter was informed on

13th May, 2022 that he is debarred permanently

from the respondent-University. The petitioner

being aggrieved preferred Appeal before the

Chancellor, Vice-Chancellor and Syndicate Members

seeking review of the decision dated 13.05.2022

taken by the competent authority debarring the

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petitioner from respondent-University.

6.10. The Syndicate of the respondent-

University however, without giving any

opportunity of hearing to the petitioner

confirmed the decision dated 13.05.2022 of the

respondent-University by debarring the petitioner

permanently.

6.11. Being aggrieved by the above orders, the

petitioner has preferred this petition.

7.1. Learned advocate Mr. Hitesh Gupta for the

petitioner submitted that it is never the

intention of the petitioner to cause any

disrespect to Hindu Goddesses. It was submitted

that the petitioner has created the art work for

the purpose of internal examination only and the

Faculty Members who are examiners were supposed

to examine and on being asked, the petitioner

immediately removed such art work on 2nd May,

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2022.

7.2. It was submitted that the respondent-

Authority without conducting the inquiry in a

proper manner and in hasty manner has taken the

decision to debar the petitioner on the basis of

the alleged confession. Learned advocate Mr.

Gupta invited the attention of the Court to

various correspondence as well as the extracts

from the Whatsapp messages which were exchanged

between the petitioner and Dr. Murthy which is

relied upon by the respondent-University to hold

that the petitioner has made confession about his

mistake.

7.3. It was further submitted that as per

Ordinance 290 (O. 290) of the respondent-

University, major penalty can be imposed for

indiscipline on the part of the students which

are enumerated in clause (a) to (t). It was

submitted that for imposing major penalties as

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

per O. 290, complaint is required to be filed by

Dean/Principal/Head of the Institution with the

help of the Faculty level disciplinary committee

and the Faculty and Disciplinary Committee is

required to conduct a preliminary inquiry and on

the basis of the report of the preliminary

inquiry, the University is required to take

necessary action. It was submitted that none of

the clauses of O.290 are applicable to the facts

of the case and the respondent university has not

followed the procedure prescribed therein.

7.4. Learned advocate Mr. Gupta submitted that

observation of the Fact Finding Committee which

is produced at page No.142 of the petition,

clearly points out that the art work for which

the objections are raised was not part of the

Public Display/Exhibition and it was a work

prepared and submitted by the petitioner as part

of his examination. It was also stated in the

report that the petitioner prepared the

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

objectionable work in department studio and a

month long art work went unnoticed from all the

Teachers of the Department till it was displayed

for assessment.

7.5. Learned advocate Mr. Gupta invited the

attention of the Court to Additional Affidavit

filed by the petitioner affirmed on 7th February,

2023 and submitted that the petitioner is ready

to follow the procedure laid down in O. 290 and

respondents may conduct the inquiry and

petitioner shall extend all co-operation and

participation for such inquiry.

8.1. On the other hand, learned advocate Mr.Mitul

Shelat for the respondent-University submitted

that the respondent-University has passed the

impugned order dated 13th May, 2022 on the basis

of confession statement dated 9th May, 2022 of the

petitioner. It was submitted that the petitioner

has given such statement in his own writing which

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

is now stated to be sent to Dr. Murthy on

Whatsapp.

8.2. It was submitted that the impugned

communication of debarring the petitioner is

issued by the respondent-University after

following the procedure laid down in O. 290 for

Conduct, Discipline and Appeal Rules for the

students of the University and in compliance of

the principles of natural justice.

8.3. It was submitted that the challenge to the

impugned communication is barred in view of

doctrine of acquiescence because of confession of

the petitioner committing act of

exhibition/display of objectionable art work

which resulted into hurting the religious

sentiments, disruption of University work and

defaming the name of the University.

8.4. It was therefore submitted that the

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petitioner is now estopped from seeking to

challenge the punishment imposed upon him having

admitted the misconduct committed by him.

8.5. It was submitted that the petitioner has

approached this Court after the lapse of academic

session as the communication debarring the

petitioner is issued on 13.05.2022 and the Appeal

is rejected by the Syndicate of the University on

05.07.2022. Merely because the time was consumed

by the petitioner to get the relevant documents

through Right to Information Act cannot be

considered as an excuse to prefer the petition

late after about eight months. It was therefore

submitted that the petitioner is not diligent in

pursuing his cause and therefore he is not

entitled to the get any relief.

8.6. Learned advocate Mr.Shelat thereafter

referred to and relied upon the following

averments in the Affidavit-in-Reply with regard

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to the relevant facts of the case as per the

respondents:

"A. It is stated that an objectionable art work was prepared by the Petitioner depicting deities in a manner which would hurt the religious sentiments of the people and put on display for assessment and evaluation as a part of the second semester of first year MVA degree course in the faculty of Fine Arts. The said Art works were circulated in social media leading to the ruckus and breach of peace in the University campus on 05.05.2022.

B. The University vide letter dated 05.05.2022 constituted a Fact Finding Committee pertaining to exhibition/display in Faculty of Fine Arts. The following were the members of the Committee:

          1. Prof.     C.N.     Murthy,     Dean      Faculty of
          Tech.                                             Engg.

2. Prof. Ketan Upadhyay, Dean Faculty of Commerce

3. Prof. Bhavna Mehta, Dean Faculty of Social Work

4. Prof. HaribhaiKataria, Dean (offg.) Faculty of Science

5. Dr. V. H. Kher, Syndicate Member (MSUB)

6. Dr. Chetan Somani, Syndicate Member (MSUB)

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7. Shri Jignesh Shah, Senate Member (MSUB)

8. Prof. Ambika Patel, Faculty of Fine Arts

9. Dr. Mayank Vyas, Jt Registrar (MSUB)

A Copy of the Letter dated 05.05.2022 is annexed herewith and marked as Annexure R-

1.

A Copy of the Newspaper Reports published on 06.05.2022 is annexed herewith and marked as Annexure R-2.

C. It is stated that the Committee inquired into the seid Incident. The meetings of the Committee were held on 06.05.2022, 08.05.2022 and 09.05.2022. The statements of teachers and students were taken. The Petitioner was informed vide letter dated 07.05.2022 (Page 67) to remain present before the Committee however he chose not to remain present before the Committee. The Petitioner made a confessional statement on 09.05.2022 admitting that the objectionable art work was prepared by the Petitioner. The Factn Finding Committee submitted its report on 09.05.2022.

A Copy of the Report of the Fact-Finding Committee is annexed herewith and marked as Annexure R-3.

D. It is stated that pursuant thereto, the Petitioner and certain faculty members

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

were issued show cause notices by the University. The notice issued to the Petitioner was vide letter dated 12.05.2022 (Page 73).

E. It is stated that as petitioner in response to the said notice addressed a communication dated 13/05/2022, admitting his guilt and apologizing for the same. The Competent Authority of the University debarred the petitioner permanently as a student from pursuing study in any of the faculty/institution of the Answering Respondent and issued the impugned communication.

F. I state that the Answering Respondent has followed the procedure as laid down in Ordinance 290 and has followed the principles of natural justice. The Petitioner was given the opportunity to submit his explanation. The Petitioner did not dispute allegations made against him and only tendered his apology.

G. I state that the Petitioner preferred an Appeal/Representation against the impugned communication. The Appeal was considered by the Syndicate of the Answering Respondent. The Syndicate of the Answering Respondent after considering the Appeal, affirmed the earlier decision regarding debarment of the Petitioner. (Page 109)

H. I state that the Petitioner has confessed to preparing the objectionable art work vide communication dated 09.05.2022 which adversely damaged the religious sentiments, created disharmony in the society and damaged the prestige

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

and peace of the University. The Fact- finding committee has concluded that the objectionable art work was prepared by the Petitioner. I state that the Answering Respondent has followed the procedure prescribed under Ordinance 290 (Page 86) before imposing penalty and issuing the impugned communication.

I. The decision of the Answering Respondent is bonafide and in accordance with law."

8.7. Referring to the above facts, it was

submitted that once the petitioner has found

committing an indiscipline by exhibiting and

displaying the art work resulting into hurting

the religious sentiments and the reputation of

the University, the petitioner is not entitled to

continue studies with the respondent-University

and therefore, as per the O. 290, the petitioner

is rightly debarred permanently from the

respondent-University and such decision is

confirmed by the Syndicate of the University.

8.8. It was submitted by learned advocate Mr.

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Shelat that the petitioner was given sufficient

opportunity to appear before the Fact Finding

Committee and submit his explanation, however, he

did not appear and instead he submitted the

confessional statement on 09.05.2022 and he had

given the confessional statement as per

instructions of Dr.Murthy is not true and

correct. It was submitted that the petitioner has

again sent the apology letter confessing the

preparation of the objectionable art work vide

Email dated 13.05.2022 and thereafter, the

impugned communication/order was issued after

following the procedure laid down in ordinance.

9. Having heard the learned advocates for the

respective parties and after considering the

material documents produced on record, it appears

that the impugned communication dated 13.05.2022

as well as the order of the Syndicate is based on

the alleged confessional statement of the

petitioner. It also appears that the petitioner

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was not granted an opportunity of hearing by the

Fact Finding Committee on 13th May, 2022 and the

Syndicate has also not granted any opportunity of

hearing to the petitioner. The O. 290 prescribes

the procedure as under:

"Procedure

Whenever any of the act comes to the notice of the competent authority the same authority will issue a notice to the student concerned to show cause as to why a particular disciplinary action should not be taken against him. For the minor penalty other than warning the reply received from the student concerned will be placed before the faculty level disciplinary committee and on the recommendations of the said committee the Dean/Principal/Heads of Institution will take further appropriate action regarding imposing penalty. For imposing major penalties, on the basis of the complaint the Dean/Principal/Head of the Institution with the help of the Faculty level disciplinary committee will conduct a preliminary enquiry and on the basis of the report of the preliminary enquiry he will forward the matter along with the report to the University for further necessary action. The matter will be placed before the University level disciplinary committee and the same committee will after following the law of natural justice will submit its report to the Vice-Chancellor and the Vice-

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Chancellor will take further appropriate decision in the matter. In short minor penalty will be imposed by the Dean/Principal/Head of Institution concerned and for major penalty the Vice- Chancellor will impose penalty after following above procedure

Notes : -

        1.        While          conducting         an
        enquiry/investigation,      the   disciplinary
        Committee      should      go     into     the

causes/circumstances leading to the acts of indiscipline/violence and if the root cause is found to lie with academic or administration lapse, such as late submission of results, delay in declaration of admissions, availability of marks lists, irregularity in taking classes etc. such findings should be noted and the committee should report the findings along with erring parties for necessary action. In such a case, the act of violence/indiscipline on the part of students should be looked at with due moderation.

2. Whenever elements other than students belonging to the Faculty or the Institution where indiscipline or violence takes place are involved, "the incident must be fully investigated by the disciplinary Committee of the Faculty or the Institution where the act of indiscipline/violence takes place.

3. Whenever an act of indiscipline/violence takes place, before filing the F.I.R., all the aspects at the

C/SCA/21085/2022 JUDGMENT DATED: 09/02/2023

appropriate level be considered."

10. O. 290 also prescribes for Appeal against the

order of the punishment imposed upon the students

which reads as under:

"The Faculty level committee will be appointed by the Dean/Principal/Head of Institution. University level committee will be appointed by the Vice- Chancellorlor. On the decision of the Dean, the student concerned will have a right to file an appeal before the Vice- Chancellor to review the penalty imposed by the Dean and in case of the penalty imposed by the Vice Chancellor, the student concerned will be entitled to file an appeal to the Syndicate to review the penalty. This appeal is to be filed within a period of 45 days from the date of the order of penalty. The appeal filed after the expiry of 45 days from the date of communication of the order, will not be entertained."

11. The petitioner has filed an Additional-

Affidavit retracting/withdrawing his alleged

confessional statement and has also stated on

oath that the petitioner shall extend all co-

operation and participation for any type of

Faculty level inquiry and University level

inquiry.

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12. In view of the above facts and considering

the nature of the incident which has taken place,

it would be in the interest of justice to conduct

further inquiry by the respondent-University in