Kerala High Court
Benhur V vs The University Of Calicut & Others on 10 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WP(C).No.33467 OF 2011(G)
PETITIONER/S:
BENHUR V.
`ASHA NILAYAM', KIZHISSERI, KUZHIMANNA PO-673
641,MALAPPURAM DISTRICT.
BY ADV. SRI.GILBERT GEORGE CORREYA
RESPONDENT/S:
1 THE UNIVERSITY OF CALICUT & OTHERS
REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY PO-
673 635.
2 THE VICE-CHANCELLOR
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO-673 635.
3 THE CONTROLLER OF EXAMINATIONS
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO-673 635.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-02-
2021, THE COURT ON 10-02-2021 DELIVERED THE FOLLOWING:
WP(C).No.33467 OF 2011(G)
2
JUDGMENT
Dated this the 10th day of February 2021
The petitioner in the instant writ petition challenges
Exts.P3, P6 and P8 memos whereby the BBA III Degree
Examinations of April, 2009 has been cancelled.
2. The facts leading to the filing of the present writ
petition are that the petitioner was a student of BBA (Bachelor of
Business Administration) course for the year 2006-2009 at
E.M.E.A College of Arts and Science, Kondotty, affiliated to the
Calicut University. On completion of the course, the Principal of
the college issued Transfer and Conduct Certificate to the
petitioner. While so, petitioner received a notice dated
5.12.2009 making an allegation that 'he brought 3 copies of
printed materials and tried to copy from it and thereby violated
the rules/instructions of the University Examinations while
appearing for 3rd year B.B.A. Final Accountancy Paper on
6.4.2009'. The aforementioned notice was duly replied on
18.12.2009 by Ext.P4. On the basis of the reply he was afforded
an opportunity of personal hearing at University on 15.3.2011
WP(C).No.33467 OF 2011(G)
vide communication dated 1.3.2011, Ext.P5. On 4.10.2011,
Ext.P6, the Vice Chancellor on the recommendation of the
standing Committee on examinations provisionally decided to
cancel the examinations taken by the petitioner and debarred
the petitioner from taking BBA examinations of the University up
to April, 2011. He was also directed to remit an amount of
Rs.1500/- as SMP fine and Rs.2000/- as enquiry fee and called
upon to show cause why the provisional decision should not be
confirmed. A detailed reply Ext.P7 was submitted by the
petitioner, wherein it was stated that the petitioner was not
given any chance to get the copies of the documents, supporting
the allegations or the statement of witnesses. Vide
communication dated 18.11.2011, Ext.P8 he was directed to
forward all the original mark lists and provisional certificate to
the office of the 3rd respondent.
3. Learned Counsel appearing on behalf of the petitioner
submitted that the Rules and Regulations framed under the
University statute empowers the Principal of the
college/Headmaster of the High School Centre shall immediately
after receipt of the report from the Chief Superintendent of the
Examination regarding any malpractice committed by a
WP(C).No.33467 OF 2011(G)
particular student examinee, send a detailed report together
with materials to the University containing specific charge,
however such report was not made available to the petitioner.
Similarly Rule 4 stipulates that in case the Enquiry Officer is
appointed, he shall frame charges against the student or a copy
of such charges together with a statement of facts shall be sent
to the student and conduct enquiry in fair and impartial manner.
According to the petitioner, no such procedure has been
adopted, nor petitioner was given any chance or notice
regarding the alleged enquiry. During the course of personal
hearing no witness was examined in the presence of the
petitioner and thus such hearing was completely an eye wash.
The examination was held in 2009, but the memo was issued to
the petitioner only on 5.12.2009 with a delay of eight (8) months
and till such time, the petitioner had already acquired an
employment.
4. In support of the aforementioned contention, learned
Counsel for the petitioner relies upon the Division Bench
judgment of this Court in Sujatha Vs. Controller of
Examinations [2003 (KHC 214] and Bombay High Court
judgment in Bharat Ghanshyam Chhabada v. Maharashtra
WP(C).No.33467 OF 2011(G)
State Board of Technical Education, Mumbai [2015 KHC
5107].
5. On the other hand Smt.Jency Paul, learned Counsel
appearing for the University opposed the contentions and
submitted that all the procedure has duly been followed. There
was no laches on the part of the respondents thus the impugned
order is not vitiated in law.
6. I have heard learned Counsel for the parties and
appraised the paper books.
7. In Sujatha's case (supra) the Division Bench after
noticing the facts of the case similar to one in the present case
noticed that none of grounds in which the penalty of cancellation
of examination and debarring the candidate from appearing from
the examination had seen the light of the day. Neither was
confronted with any material, much less, the statement of
witnesses or of an examiner to form a view of malpractice. In the
absence of the same, the action of the Syndicate or University to
debar the student from appearing for the examination and
cancellation of the examination was found to be illegal and
repugnant. The facts, as noticed above, in the instant case would
also reveal that petitioner had cleared the examination in April,
WP(C).No.33467 OF 2011(G)
2017 and after eight (8) months was served with Ext.P3 memo,
which was duly replied by Ext.P4. The alleged personal hearing
was afforded only in the month of March and after a gap of seven
(7) months was served with memo of provisional decision to
cancel the examination. The petitioner had categorically replied
to the memo dated 4.10.2011, vide Ext.P7 that he was not
provided any chance to obtain the copies of documents
supporting the allegation or statement of witnesses if any, nor
any chance to cross examine any witness. In case the petitioner
had indulged into malpractice as has been pointed out by the
University, no reasons have been assigned as evident from the
memo dated 18.11.2011, Ext.P8, which is extracted herein
below:
" Shri. Benhur V. a candidate registered for III BBA Degree
Examination Aprial 2009 with Register number EMAGBBAR04
at the EMEA College, Kondotty is directed to forward all
original marklists and provisional certificate to this office
immediately;"
8. The case of the petitioner is squarely covered by the
decision referred (supra), in which it is held that no procedure
required was followed for entailing the person much less
cancellation of the examination. Thus the impugned action is
WP(C).No.33467 OF 2011(G)
wholly illegal, vitiated and not justified under law. Accordingly,
Exts.P3, P6 and P8 memos are quashed. The writ petition stand
allowed.
Sd/
AMIT RAWAL
JUDGE
Jm/
WP(C).No.33467 OF 2011(G)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROVISIONAL CERTIFICATE
DATED 11-06-2009 ISSUED TO THE PETITIONER
BY THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE PROVISIONAL CERTIFICATE
DATED 11-06-2009 ISSUED TO THE PETITIONER
BY THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE TRANSFER AND CONDUCT
CERTIFICATE DATED 09-07-2009 ISSUED TO THE
PETITIONER BY THE PRINCIPAL, EMEA COLLEGE
OF ARTS AND SCIENCE, KONDOTTY.
EXHIBIT P4 TRUE COPY OF THE PROVISIONAL CERTIFICATE
DATED 11-06-2009 ISSUED TO THE PETITIONER
BY THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE MEMO NO.EC.II/3/SMP/2010
DATED 01-03-2011 ISSUED FROM THE OFFICE OF
THE 3RD RESPONDENT TO THE PETITIONER
EXHIBIT P6 TRUE COPY OF THE MEMO NO.EC.II/3/SMP/2010
DATED 01-03-2011 ISSUED FROM THE OFFICE OF
THE 3RD RESPONDENT TO THE PETITIONER
EXHIBIT P7 TRUE COPY OF THE EXPLANATION DATED 17-10-
2011 SUBMITTED BY THE PETITIONER BEFORE THE
3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE MEMO NO.EC.II/3/SMP/2010
DATED 01-03-2011 ISSUED FROM THE OFFICE OF
THE 3RD RESPONDENT TO THE PETITIONER
