Dipesh Phulera vs G.B. Pant University Of ...
2023 Latest Caselaw 3319 UK

                                                                   Reserved
     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
            Writ Petition (M/S) No. 1612 of 2023

Dipesh Phulera                                           .....Petitioner
                                  Versus

G.B. Pant University of Agriculture
and Technology, Pantnagar, District
Udham Singh Nagar, and Others ........ Respondents

Present:-
             Mr. Sandeep Kothari, Advocate for the petitioner.
             Mr. Rajendra Dobhal, Senior Advocate assisted by Mr.
             Shubhang Dobhal, Advocate for the respondents.

            Writ Petition (M/S) No. 1650 of 2023

Himanshu Raj                                             .....Petitioner
                                  Versus

G.B. Pant University and Others                  ........ Respondents

Present:-
             Mr. Prateek Tripathi, Advocate for the petitioner.
             Mr. S.S. Lingwal, Advocate for the respondents.


                               JUDGMENT

Per: Hon'ble Ravindra Maithani, J.

Since common questions of law and facts are

involved in both these petitions, they are being decided by

this common judgment.

FACTS

WPMS No.1612 of 2023

2. The challenge in this petition is made to

impugned order dated 18.05.2023, passed by the

respondent no.3, the Registrar, G.B. Pant University of

Agriculture and Technology, Pantnagar, District Udham

Singh Nagar ("the university"), by which the petitioner has

been debarred for two semesters, i.e. II semester 2022-23

and I semester 2022-23.

3. Facts necessary to appreciate the controversy,

briefly stated, are as follows; the petitioner is a student of Ist

year in the university. On 23.03.2023, he appeared for

internal examinations/pre final of II semester examination

of the academic year 2022-2023. The events, as per the

petitioner, are as follows:-

(i) A chit was wrongly left in the pocket of the

petitioner, but within five minutes from the

start of the examination, the Invigilator was

informed and the chit was handed over to

him.

(ii) The chit, as well as, the answer sheet was

taken by the Invigilator and a fresh answer

sheet was provided to the petitioner.

(iii) The Invigilator gave a dictation to the

petitioner, requiring the petitioner to admit

the guilt and to apologise the conduct.

(iv) Without any notice to the petitioner, the

university disciplinary committee held its

meeting on 03.05.2023. At 11:45 AM, the

petitioner was required to reach at the

venue at 12:00 Noon.

(v) The petitioner was never given a chance to

submit his case,

(vi) The opinion of the disciplinary committee

was never communicated to the petitioner.

(vii) By the impugned order, the petitioner has

been debarred from two semesters, as

stated hereinbefore.

4. It is the case of the petitioner that the

punishment awarded to him is contrary to the academic

regulations of the university, in as much as the Regulation

37of the Academic Regulations of the University provides for

punishment for using unfair means in the pre-final

examination and, according to it, for such act, debar may

be made for that semester alone.

5. The respondent/university has filed its

objections. According to the respondent/university, the

petitioner was studying under the external system of

examination. Therefore, according to the academic

regulations of the university, he has been debarred.

WPMS No.1650 of 2023

6. The challenge in this petition is made to

impugned order dated 23.05.2023, passed by the

respondent no.3, the Registrar, of the university, by which

the petitioner has been debarred for two semesters, i.e. I

semester 2022-23 and II semester 2022-23.

7. Facts necessary to appreciate the controversy,

briefly stated, are as follows:-

(i) The petitioner is a student of B.TECH

Agricultural Engineering in the university.

On 06.05.2023, the petitioner was

appearing for the pre final examinations,

when a complaint was lodged by the

Invigilator against the petitioner for use of

unfair means.

(ii) After completion of the examination, the

Invigilator called the petitioner and forced

him to write an apology admitting guilt.

(iii) The petitioner being scared and under the

undue influence of the Invigilator wrote the

apology.

(iv) The matter was referred to the disciplinary

committee of the university.

(v)     The disciplinary committee of the university

        met      on     11.05.2023,           and     found    the

        petitioner guilty.


(vi)    During        the       course   of    the    disciplinary

committee of the university proceedings,

the petitioner denied all the allegations; he

denied use of unfair means.

(vii) The order of the disciplinary committee of

the university was never communicated to

the petitioner, and the petitioner was never

given an opportunity to defend himself and

refute the finding of the disciplinary

committee of the university.

(viii) The       Vice-Chancellor          of    the    university

        approved        the       recommendation          of   the

disciplinary committee of the university

without applying his mind, but it does not

reveal as to how and what approval was

granted.

8. It is the case of the petitioner that the

punishment awarded to him is contrary to the Academic

Regulations of the University, in as much as the Regulation

37 provides the punishment for debarment from that

semester alone.

9. The respondent/university filed its counter

affidavit. According to the respondent/university, the

petitioner was using unfair means and he was provided

punishment as per Academic Regulations of the University.

10. Heard learned counsel for the parties and

perused the record.

11. Learned counsel for the petitioners would submit

that the punishment is not as per Academic Regulations of

the university. The petitioners were appearing in the pre

final examination, for which the punishment could be only

for one semester, as per Regulation 37(8) of the Academic

Regulations of the University.

12. Learned counsel for the petitioners also relied

upon the principle of law, as laid down by this Court in the

case of Mr. Udit Singh Vs. Vice Chancellor Govind Ballabh

Pant University Pantnagar and Another, 2017 SCC OnLine

Utt 383,to argue that under similar circumstances, the

Court had set aside the punishment order and directed the

Vice-Chancellor to afford an opportunity of hearing to the

petitioner, and, thereafter, pass an order.

13. Learned Counsel appearing for the

respondent/university would submit that the petitioners

were appearing in the external system of examination, for

which Regulation 37(8) of the Academic Regulations of the

University is not applicable, instead, separate regulations

are applicable, which have been noted after regulation

37(10) of the Academic Regulations.

14. It is also argued that it is a matter pertaining to

university discipline, and in such matters, the Court should

be slow to make any interference.

15. In support of his arguments, learned Senior

counsel for the respondent/university (in the case of

petitioner-Dipesh Phulera), placed reliance on the principles

of law, as laid down by the Hon'ble Supreme Court in the

case of Director, Dr. Ambedkar Institute of Hotel

Management, Nutrition & Catering Technology, Chandigarh

and Others, Vs. Vaibhav Singh Chauhan, (2009) 1 SCC 59.

In the case of Vaibhav Singh Chauhan (supra) , the Hon'ble

Supreme Court observed that, "we would like to refer to

the decisions of this Court which has repeatedly held

that the High Court should not ordinarily interfere with

the orders passed in educational matters by domestic

tribunals set up by educational institutions".

16. Regulation 37 of the Academic Regulations of the

University is as follows:-

"Use of unfair Means

37. (1) The term 'use of unfair means in the examinations' or 'attempt to use unfair means in the examination' shall denote the items prescribed by the Academic Council, through its resolutions, from time to time. The following items are included in the category:

(i) Possession of any books, notes, chits, programmable calculator or such other material and also any note(s) or signs written on any part of the body, furniture or any other material pertaining to the subject matter of the examination in the examination hall during the examination hours.

(ii) Copying or allowing to copy or impersonation.

(iii) Talking, whispering or signalling in any form in the examination hall or outside the examination hall during the examination hours.

(iv) Any other activity which may give undue advantage in the examination to any student.

(v) Refusal of a student to occupy the seat allotted to him/her in the seating plan.

(vi) Any attempt to use any other means, which in the opinion of the Vice- Chancellor may be construed to be unfair.

(2) Every student shall be required to bring his/her own examination material, such as set squares, scales and the like, himself/herself, as he/she shall not be permitted to borrow any of these material from fellow student in the examination hall.

(3) If any student is found to have used or attempted to use 'Unfair means' in any examination, his/her answer-book shall be seized by the Invigilator Incharge forthwith. The student may, however, be permitted to answer the remaining part of the question paper but on a separate answer-book.

(4) The Invigilator Incharge shall submit a detailed report alongwith the answer books of the student and other related material, if any, to the examination superintendent (Dean of the College) concerned immediately after examination is over, with a copy to the Registrar and the Dean of the college concerned.

(5) A written statement of the student, found to use or attempting to use unfair means in the examination hall will be obtained by the Invigilator Incharge and be forwarded with his/her report along with any other materials found with the student which should be signed by the student concerned in token of the same having been recovered from his/her possession.

(6) In case the student refuses to give a statement, he/she shall not be forced to do so but the fact of his/her refusal be recorded by the Invigilator Incharge in his/her report.

(7) The Examination Superintendent shall forward the report of the Invigilator Incharge to the Student Discipline Committee for detailed investigation, which shall send its report to the Vice-Chancellor with specific recommendations within a week from the date of report.

(8) Student found using or attempting to use unfair means or copying during a pre-final examination shall be debarred from the Semester.

(9) Student found using or attempting to use unfair means or copying during a semester final examination shall be debarred the current and the next semester.

(10) Debarring a student would be treated as having been dropped from the University.

For the students under external system of examination Student found using or attempting to use unfair means or copying during an internal theory and/or practical examination in the first semester shall be debarred from the semester as well as for second semester of that academic session. A student found using or attempting to use unfair means or copying during an internal examination and/or practical examination in the second semester should be debarred from that semester as well as from first semester of that academic session.

Student found using or attempting to use unfair-means or copying during a Semester Final Examination shall be debarred from the current and the next Semester.

Student found using or attempting to use unfair means or copying during annual/board theory or practical examination shall be debarred from that academic session."

17. It is being argued on behalf of the

respondent/university that in the case of the petitioners,

Regulation 37(8) of the Academic Regulations of the

University shall not be applicable because the petitioners

are governed by the external system of examination.

18. In fact, on 19.10.2023, Mr. Ravelkar, The

Registrar of the University, assisted the Court. What

transpired the Court on that date has been noted in the

notesheet dated 19.10.2023, which is as follows:-

"Today, Mr. Ravelkar, The Registrar of the University assisted the Court. He would submit that there are two types of examination in the University. One is external examination, which has a component of written examination also, but there are some examination, which are internal alone, which are applicable for post graduation courses and Ph.D programmes.

The Court wanted to know from the Mr. Ravelkar, Registrar of the University as to which regulations provide for these types of examination?

He would refer to page 46 of the Academic Regulations published in the year 2013 by the G.B. Pant, University of Agriculture & Technology, Pantnagar indicating that this is scheme for external system of examination.

The Court further request Dr. Ravelkar to tell as to which regulation provides for internal system of examination alone?

He would submit that it is implied and there is no regulation for it.

The Court wanted to know as to which regulation provides for internal system of examination alone?

He could not indicate any such regulation. He would also submit that for B Tech. Students by virtue of Item No.13 of the Academic Council Resolution dated 13.08.2015, the external system of examination as applicable to the College of Agriculture, Home Science is to be followed, for which there will be internal examination of 50 percent and at the end of semester there will be external examination.

Arguments heard.

Judgment reserved."

19. Undoubtedly, a similar matter has been decided

by this Court in the case of Mr. Udit Singh (supra). In the

case of Udit Singh (supra) also, a student of the university

appearing in the B.Tech. I year examination was found

using unfair means. He was debarred. That order was

challenged. This Court noted that the punishment is harsh

and before such punishment is imposed, there should be

clinching evidence.

20. This Court has also observed in the case of Udit

Singh (supra), that admission of guilt made by the students,

in such matters, may be done under the peculiar

circumstances, in which the students find at the relevant

time. The Court has also observed that the disciplinary

committee of the university only makes recommendation,

but the Vice-Chancellor has to take a decision by applying

his mind. In Paragraphs 8, 9, 11, 13, 15 and 16, in the

case of Udit Singh (supra), this Court observed as follows:-

"8. After hearing the learned counsel for the petitioner Mr. Ashish Joshi and learned Senior Counsel for the respondents Mr. Rajendra Dobhal assisted by Mr.

Devang Dobhal, Advocate, there is absolutely no doubt in the mind of this Court that once the use of unfair means is established, neither the Committee nor the Vice-Chancellor has any discretion to award any other punishment but which is prescribed under the Rules, which is to debar the students for two semesters. All the same, it is an extremely harsh punishment.

Nevertheless, this particular Regulation, which is evidently harsh, is not under challenge before this Court."

"9. Under these circumstances, what has to be seen by this Court is that when a student is charged of using unfair means in the final examination, then the evidence against the student must be clinching and unrebuttable. In other words, from the evidence on record, there could be no other conclusion possible but the fact that under these circumstances the student has done nothing but having indulged in unfair means. The Discipline Committee, all the same, has not examined any evidence available before it in order to give its finding with regard to the conclusion that the petitioner has used unfair means in the examination. The conclusion drawn by the Discipline Committee is based on the fact that the petitioner himself has admitted to the use of unfair means."

"11. A submission has also been made by the learned counsel for the petitioner that the petitioner is a young student of 1st year B.Tech. and was presumably overwhelmed by the situation in which he was placed and, therefore, gave a statement in writing as he was directed. Since this statement was given in the examination hall itself, there can atleast be a presumption as to this contention of the petitioner."

"13. All the same, there is nothing to show on record that when the petitioner appeared before the Discipline Committee he had actually made any admission in writing. In writ petition though he has admitted to the act that a piece of paper was found with him but he has denied using any unfair means. Therefore, under these circumstances, the findings of the Committee is based entirely on the admission of the petitioner that the piece of paper was with him and for this reason the Committee has drawn a conclusion that the petitioner has used unfair means."

"15. All the same, the findings of the Discipline Committee are only in the nature of a recommendation. Whether a student has to be debarred for the Semesters

or not is a decision which ultimately has to be taken by the Vice-Chancellor. Considering the fact and, as it has already been observed by this Court, that the punishment prescribed by law is an extremely harsh punishment, it is expected that the Vice-Chancellor under these circumstances would apply his mind to the nature of the case and thereafter pass an order. No order seems to have been passed by the Vice- Chancellor. From records, which have been presented before this Court, on recommendation of the Committee there are just bare signatures of the Vice-Chancellor- nothing more!"

"16. In view thereof, the order dated 02.03.2017 is hereby quashed and set aside. Writ petition is allowed."

21. In both the instant petitions, the petitioners have

stated that they were made to write the admission of their

guilt. They were not afforded an opportunity of hearing

before the proceedings of the disciplinary committee of the

university. In fact, no order was, as such, passed by the

Vice-Chancellor of the university. Therefore, this Court is of

the view that the instant controversy is squarely covered by

the judgment of this Court rendered in the case of Udit

Singh (supra). This Court does not see any reason to take a

different view than what has been taken in the case of Udit

Singh (supra).

22. Accordingly, this Court is of the view that both

these petitions may be decided in terms of the judgment

dated 23.03.2017, passed in the case of Udit Singh (supra).

23. Both these petitions are decided in terms of the

judgment in the case of Mr. Udit Singh Vs. Vice Chancellor

Govind Ballabh Pant University Pantnagar and Another,

passed in WPMS No.499 of 2017.

24. Accordingly, the writ petitions are allowed. Both

the impugned orders dated 18.05.2023 and 23.05.2023 are

set aside.

25. Now, the Vice-Chancellor of the university shall

afford an opportunity of hearing to the petitioners and

proceed in the matter, as per the directions contained in

Para 17 of the judgment in the case of Udit Singh (supra),

which reads as follows:-

17. Having passed the abovesaid order, this Court not only would give an opportunity to the Vice-Chancellor but, on the other hand, would request the Vice- Chancellor to appreciate the entire case including the report of the University Discipline Committee and other evidence on record as well as the statement of the petitioner preferably after giving a personal hearing to the student and thereafter take a decision in the matter preferable within two weeks from the date of production of certified copy of this order. A personal hearing, however, would not mean that the petitioner would be represented by any other person, including a lawyer. For abundant precaution, the petitioner would be permitted to appear in the 2nd semester classes till the decision is finally taken by the Vice-Chancellor. It is made clear that this permission to the petitioner to appear in the second semester classes should not be taken as any comment on the merit of his case. The Vice-Chancellor must take a decision on the merit of the case, keeping all aspects into consideration, including the discipline of the institute.

(Ravindra Maithani, J.) 02.11.2023 Ravi Bisht