SCA/8693/2008 64/ 64 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8693 of 2008 with CIVIL APPLICATION No.11120 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAJNISH KUMAR RAI - Petitioner(s) Versus THE GUJARAT UNIVERSITY & 2 - Respondent(s) ========================================================= Appearance : MR HARIN P RAVAL for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1, 3, MR SN SHELAT, Ld. Sr. Counsel WITH MRS VD NANAVATI for Respondent(s) : 1, MR KAMAL TRIVEDI, Ld. ADV. GENERAL WITH MS SK VISHEN for Respondent(s) : 2, MR UMANG OZA, AGP FOR RESPONDENT NO.3. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 16/10/2008 ORAL JUDGMENT
The
short facts of the case appears to be that the petitioner, though an
IPS Officer, in capacity as a student of LL.B., appeared for the
examinations of the Second Semester of 1st LL.B. On
25.4.2008, there was paper of Banking and Negotiable Instruments
Act. The timings were from 10.30 a.m., to 1.30 p.m. As per the
petitioner, one lady observer had accosted another girl student in
the class-room and started addressing to such girl student in loud
voice. At that stage, the petitioner requested the lady Supervisor
to speak softly as he was being disturbed. The said lady Observer
came to the desk of the petitioner after few minutes and started
examining the petitioner’s belongings. She opened pencil box and
took out 6 inch long foot-ruler (scale) from the said box. As per
the petitioner, the said foot-ruler belonged to his six-and-a-half
year old son and the petitioner, with a view to make use of the
foot-ruler at the time of preparing tables in the examination, had
carried the same. The lady Supervisor as per the petitioner raised
the objection that something was inscribed on the foot-ruler, which
the petitioner stated, might have been written by his 6 ½ old
son. In spite of his explanation, the petitioner was prohibited for
half-a-hour to write the answer-book. It appears that there was no
reporting of such incident before the University, but as the
aforesaid incident was reported in press, the University called upon
the Supervisor and the other officer to submit the report. Based
thereon, on 26.4.2008 the Sr. Supervisor of the University, Shri
R.Y. Mankad gave a report to the Director of Examinations, copy
whereof is produced on page 163 and in the said report he has
narrated the incident happened during the supervision on 25.4.2008
in the Examination Centre of Siddharth Law College at Gandhinagar.
The other aspects may not be relevant, but in the said report he has
referred to the information provided to him by Prajapati and the
observer, which has been reproduced in quotes, English meaning
thereof can be extracted as under:-
When
I was checking in the block, at that time, the said officer informed
me that I am being disturbed and the class is being disturbed. At
that time, the lady informed him that I am observer and I am
discharging my duty. The officer also informed her that I am a
responsible officer and I am also IPS responsible officer.
Therefore, I undertook the checking of the compass box and the
aforesaid literature of the examination was found .
In
the earlier portion of the report, there is reference that one
Mr.Prajapati informed him (Shri Mankad) that the observer is calling
him and observer informed him that one student had brought
literature of the examination in the examination hall and it was
found during the checking and the said writing was over small
plastic foot-ruler and 5 to 6 points were there of the examination
paper of the same day. It further appears that the observer also
gave statement, in which she first referred to the checking of the
compass box and thereafter referred to the talk by her with the
petitioner about getting disturbance and the discharge of the duty.
She also stated that as and when the University calls her for
further inquiry she shall remain present. The pertinent aspect is
that in the said statement of Rajeshree H. Mengar, random checking
and the talk for disturbance is referred to during the period of 3
O’clock to 6 O’clock in the evening and the random checking, which
she had referred to is of 4.30 p.m., whereas for the inspection in
the first session, the time shown is at 11.30 a.m., of the random
checking. It also appears that the report was submitted on
26.4.2008 by Incharge Principle, Ms.Meenakshi Darekhan, in which it
has been stated that the student was one of the two girls and there
was doubt that something was written and, therefore, the paper was
taken away by him and it was instructed to give him after
half-an-hour. The foot-ruler was of a small size of 6 inch and a
thin chit, which can be removed was affixed on the same, over which
it was appearing that some points were written, which was seen by
her and observer. Thereafter on the spot the same was torn off and
the foot-ruler was broken and was thrown away in the dustbin. She
has referred to the seat numbers of three students, which included
the seat number of the petitioner. It also appears that the
statement of Mr.D.D.Prajapati, who was Jr. Supervisor was also
recorded in which there was reference to the foot-ruler with writing
found from one student, who was permitted to write the answer paper
after half-an-hour.
It
appears that thereafter the University based on the aforesaid report
and the statement proceeded to initiate action against the
petitioner by issuing notice and the petitioner had appeared in
response thereto and had asked for certain documents, which as per
the petitioner, were not supplied and the petitioner apprehended
that the inquiry may be hushed up. At that stage, the petitioner
preferred Special Civil Application No.7292 of 2008. This Court in
the said proceedings passed the following order:-
The
petitioner has preferred the petition for appropriate writ to hold
and declare that the action of the respondents herein in proceeding
to inquiry into the allegations against the petitioner without
supplying necessary documents be declared as unlawful and highhanded
or arbitrary.
When
the matter is taken up for hearing, Mr.Shelat, learned counsel for
Mrs.Nanavati, learned counsel appearing for the University declared
before the Court as under:
The
University will issue an additional notice containing the details,
the material which is to be used against the petitioner in the
inquiry in question.
The
punishment which is proposed to be imposed upon the petitioner shall
also be stated in the said notice.
The
material which may be referred to in the next notice and to be used
against the petitioner shall also be supplied to the petitioner.
After
the aforesaid details are supplied to the petitioner, opportunity of
hearing shall be given and thereafter, appropriate decision shall be
taken.
In
the above view of the matter, Mr.Raval, learned counsel for the
petitioner does not press the petition at this stage. Permission
granted. Disposed of as withdrawn.
Thereafter,
the show-cause notice has been issued and the petitioner submitted
reply. There are various, inter se, disputes between the petitioner
and the University on the aspects as to whether all documents were
supplied to the petitioner or not and as per the petitioner,
opportunity for cross-examination of the witnesses was expressly
demanded. However, conduct committee, which is known as ‘Suddhi
Samithi’ called the petitioner for personal explanation and the
hearing and ultimately the committee took the decision, whereby it
found that the misconduct was committed and the punishment
recommended was for cancellation of the result and be declared
failed. The said declaration of Suddhi Samithi has been considered
by the body of the University on 10.6.2008 and after deliberations
amongst various members of the Executive Council, it was decided by
the majority that there was no question of giving any
cross-examination, since such permission for cross-examination is
never granted to any student in the history of the University and it
was also observed that if such permission was granted considering
the status of the petitioner, contradictions may arise in the
statements of the witnesses. Thereafter the majority resolved for
going by the recommendations of the Suddhi Samithi for imposition of
the punishment. It is under these circumstances the present
petition before this Court by the petitioner herein.
As
per the petitioner, he is a very upright, honest, sincere and strict
IPS Officer and while on duty he has conducted large number of
important and sensitive cases, wherein high dignitaries and high
officials were arrested/interrogated, whose details are given by him
on pages 6 and 7 of the memo of the petition. It is the case of the
University that all such things, even if they were, are irrelevant.
However, as per the petitioner, he is having a bright educational
career and there is no reason for him to indulge into alleged
misconduct. As per the petitioner, as he is having reputed good
service record, the finding of misconduct and/or the punishment on
such ground would tarnish his image as IPS officer, whereas as per
the University all such aspects are irrelevant since the capacity of
the petitioner is as student of LL.B., only.
Heard
Mr.Raval, learned Counsel appearing for the petitioner, Mr.S.N.
Shelat, learned Counsel with Mrs.Nanavati for the University,
Mr.Kamal Trivedi, learned Advocate General for Vice Chancellor of
the University and Mr.Umang Oza, learned AGP for the State
Government at length.
In
order to examine the factual controversy, reference to certain legal
position, which may have bearing to the scope of the judicial
scrutiny by this Court in a petition under Article 226 of the
Constitution of India may be relevant. It can hardly be disputed
that the proceedings of the action to be taken by the Suddhi Samithi
or the University, as the case may be, are at par with the domestic
Tribunal and, therefore, the principles of natural justice as it
may require considering the facts and circumstances of each case
would, in any case, be required to be followed by such domestic
Tribunal. It is by now well settled that observance of principles
of natural justice cannot be applied like an absolute
straight-jacket formula, but its scope and ambit may vary from case
to case. But in all cases the crucial test for extending the scope
and ambit of the observance of principles of natural justice would
be as to whether giving of such an opportunity would have enabled
the Tribunal to have a fair and a detailed scrutiny of the matter or
not. It can hardly be disputed that imposition of the penalty by
Suddhi Samithi or the University, as the case may be, is by way of
penal action upon the student concerned. Therefore, when the penal
action is to be taken by such domestic Tribunal like that of Suddhi
Samithi or the University, as the case may be, it would be required
for such domestic Tribunal to follow the principles of natural
justice against the person or the student, as the case may be, who
is to face the ultimate decision, may be of punishment or no
punishment. On the aspects of applicability of principles of
natural justice to such proceedings as it exists in the present
case, for consideration by this Court, there is no dispute,
therefore, no more discussion may be required on the said aspect.
However, in cases where there is non-observance of principles of
natural justice and a complaint is brought to this Court in a
petition under Article 226 of the Constitution of India, law has
developed further and the same is that unless the prejudice is
demonstrated to the satisfaction of the Court, this Court may
decline the entertainment of the complaint for non-observance of the
principles of natural justice.
The
attempt on the part of the learned Counsel for the respondent
University was to rely upon the decision of this Court in the case
of Upadhyaya Sharad Pravinchandra v. The Gujarat University,
Ahmedabad decided on 17.8.1978 (in Special Civil
Application No.1097 of 1978 and allied matters) to contend that
the cross-examination should not be permitted in the educational
matter, where domestic Tribunal has to decide the question. But the
pertinent aspect is that in the very decision, the Division Bench of
this Court did observe as under:-
Now,
there is no invariable rule of natural justice, which requires that
the cross examination of the persons whose statements have been
recorded and relied upon must be given. The rules of natural
justice require that a party against whom an allegation is made
should be given a hearing. Right of hearing does not include the
right to cross examine. Whether to permit cross examination in
each case must depend upon the facts and circumstances of the case.
Thereafter,
the facts of those cases were examined by the Division Bench and it
was found that the cross-examination was not necessary.
This
Court in another unreported decision in Special Civil Application
No.357 of 1975 decided on 10.4.1975 did observe that the
observance of the principles of natural justice in their strict form
may destroy the very purpose and may be more damage than their
non-observance would do, but in that decision also, the Court
reiterated that the principles of natural justice are flexible and
their applicability would differ in different circumstances. This
Court, having found the misconduct was committed, did not upset the
decision on the ground of breach of the principles of natural
justice. In the decision of the High Court of Jammu and Kashmir in
the case of Mohinder Singh Jamwal v. University of Jammu and
Ors., reported in 1984 (J.K.), 40, it was, inter alia, found at
para 10 that the question of violation of natural justice comes up
when something is done against a person to his detriment, without
hearing him and such was not the case found by the High Court of
Jammu and Kashmir, but in the said decision also, no departure is
made from the observance of the principles of natural justice and
considering the facts of that case, the High Court found that there
was observance of principles of natural justice and, therefore,
further opportunity was not required.
This
Court in the case of Hindustan Finstock Limited v. Securities and
Exchange Board of India, reported in 2002(3) GLR, 2565,
did observe, inter alia, at para 12 as under:-
12. If the credibility of a person who has testified or
given some information is in doubt, or if
the version or the statement of the person who has
testified is in dispute, right of crossexamination must
inevitably form part of play in action but where there is
no lis regarding the facts but certain explanation of the
circumstances, there is no requirement of
crossexamination to be fulfilled to justify fair play in
action. When on the question of facts there was no
dispute, that no real prejudice has been caused to a
party aggrieved by an order, by absence of any formal
opportunity of crossexamination per se does not
invalidate or vitiate the decision aggrieved at fair
play. (Emphasis supplied)
After
observing above, this Court further found, in the facts of that
case, that it was not required for SEBI to permit cross-examination
while observing the principles of natural justice. In the very
decision, on the aspects of entertaining the complaint of breach of
principles of natural justice, it was, inter alia, observed at para
13 as under:-
13. … Therefore, ultimate analysis of various case
laws comes to conclusion that the court may strike down the action of the authority if taken in breach of principles of natural justice only if the prejudice is shown or proved and the action is in breach of principles of natural justice.
Thereafter,
the Court in the facts of that case, observed that no prejudice was
caused and, therefore, mere denial of cross-examination could not be
said as prejudice caused in the facts of that case.
This
Court in the case of Rajesh Chandulal Purohit v. Saurashtra
University and Anr., reported in 1997(1) GLR, 317 did observe
that if there is no notice/no hearing or no opportunity whatsoever,
it would be a void action for non-observance of principles of
natural justice, but in a case where the hearing has been given, but
alleged as not adequate, the question of prejudice may be required
to be examined and the action, pre se, would not be bad on the
ground of breach of principles of natural justice.
The
Apex Court, in case of Karnataka Public Service Commission and
Others v. B.M. Vijaya Shankar and Ors, reported in AIR 1992 SC, 952
did observe, inter alia, at para 4 as under:-
4. …
Natural justice is a concept which has succeeded in keeping the
arbitrary action within limits and preserving the rule of law. But
with all the religious rigidity with which it should be observed,
since it is ultimately weighed in balance of fairness, the Courts
have been circumspect in extending it to situations where it would
cause more injustice than justice. Even though the procedure of
affording hearing is as important as decisions on merits yet urgency
of the matter, or public interest at times require flexibility in
application of the rule as the circumstances of the case and the
nature of the matter required to be dealt may serve interest of
justice better by denying opportunity of hearing and permitting the
person concerned to challenge the order itself on merits not for
lack of hearing to establish bona fide or innocence but for being
otherwise arbitrary or against rules. (Emphasis supplied)
Thereafter
in the facts of that case, it was also observed by the Apex Court in
the said decision, inter alia, at para 5 as under:-
5. …
The Tribunal appears to have been swayed by principles applied by
this Court where an examinee is found copying or using unfair means
in the examination. But in doing so the Tribunal ignored a vital
distinction that there may be cases where the right of hearing may
be excluded by the very nature of the power or absence of any
expectation that the hearing shall be afforded. Rule of hearing
has been construed strictly in academic disciplines. It should be
construed more strictly in such cases where an examinee is competing
for Civil Service post. The very nature of the competition requires
that it should be fair, above board and must infuse confidence. If
this is ignored then, as stated earlier, it is not only against
public interest but it also erodes the social sense of equality.
(Emphasis supplied)
Ultimately,
in the facts of that case, the Apex Court found that the Tribunal
had misdirected itself and, therefore, the order of the Tribunal
could not be maintained.
The
aforesaid goes to show that the observance of principles of natural
justice before imposition of the penalty is a must by any domestic
Tribunal like that of the University or the Suddhi Samithi, as the
case may be. What shall be the scope and ambit of the observance of
the principles of natural justice may vary from facts to facts. If
it is found that there is variations in the statements of the
witnesses upon which the reliance is placed for initiating action or
a reasonable case based on probability may be on circumstantial
evidence or otherwise, cannot be gathered, it may require total
observance of principles of natural justice, which may include
permitting cross-examination of the witnesses, who made statement
or, who stated for explaining the circumstances or the material, as
the case may be. All such, in any case, may be required, if this
Court, while entertaining the complaints of non-observance of
principles of natural justice, finds that prejudice is caused to the
person concerned on account of no opportunity of cross-examination
of the witnesses and thereby to explore the truth.
On
the aspects of attracting the power of the University for imposition
of the punishment, much grievance has been raised on behalf of the
petitioner as well as by the University. The attempt on the part of
the learned Counsel for the petitioner was to contend that the
material has to be relevant to the examination and the material
which is not at all relevant to the subject of the examination
cannot be made as the basis for imposition of the punishment,
whereas on the behalf of the University, it was contended that once
any material is found, the punishment can be imposed. In support of
the said contention, the Counsel for the University relied upon the
instructions in the question paper. It was stated that instruction
No.10 as under:-
10. Exchange
of written materials, pencil or other instructions/article is
prohibited.
Further
at item No.13, it was provided as under:-
13.
If you are found in possession of written material in any form of
mobile phone of programmed calculator or found talking with other
candidates or found in regular or caught absconding with written or
blank answer book, you will be immediately expelled and penal action
will be initiated after the matter is reported to the authorities.
It
was also submitted by the learned Counsel for the university that as
per the instructions being guidelines to the Suddhi Samithi, for
imposition of penalty of cancellation of the result as failed plus
only (A + O only) the same has been permitted if any of the
conditions from (a) to (d) are satisfied. Condition No.(d) of such
guidelines was pressed in service, whose English translation can be
stated as under :-
Small
chit, small writing on foot-ruler, writing on rubber, indication or
numbers are found.
It
was, therefore, submitted that irrespective of the contents of the
material once such materials are found, whether it has any relevance
to the subject of the examination or not, the punishment can be
imposed.
It
is true that what shall be the discipline at the time of examination
are essentially to be left to the academicians for maintaining the
standards at the examination. However, as per the settled
principles of interpretation of statutes, it must be meaningful and
it must have nexus to the object to be achieved for maintaining the
standard at the examination and any clause cannot be interpreted,
which may result into creating absurdity. If the condition is
tested either as prudence or as an academicians, such material must
have the relevance to the subject or the examination. It is not
necessary that the material must be relevant to the questions asked
in the examination, nor it is necessary to see that whether copied
or not but it must have direct or indirect nexus with the subject or
the examination. If the condition is read in absolute irrespective
of the contents of the material, it would result into creating an
absurdity while enforcing the condition. Suppose a blank chit is
found or a writing of name is found on foot-ruler or writing of name
is found on rubber, such can by no stretch of imagination be the
basis for imposing punishment on the ground of breach of the
discipline. If the condition is to be interpreted with reasonable
prudence, keeping in view the object to be achieved, there cannot be
any inevitable conclusion that it must be related directly or
indirectly to the examination or its subject. The condition as it
is not providing for the express language of ‘irrespective of any
contents thereof’, nor does it provide expressly that its contents
‘must relate to the subject or the examination’. Therefore, it is
more required for giving correct interpretation of the condition for
the real effect, keeping in view the object to be achieved and to
avoid the creation of absurd situation on a non-germane
circumstance. Therefore, the only inevitable conclusion can be
recorded is that the material which is found in the examination must
directly or indirectly relate to the examination or the subject of
the examination, then only it can be termed as an incriminating
material or undesired material.
In
the decision of this Court in case of Sardar Patel University v.
Minal R. Jogi and Anr., reported 2000(2) GLH, 199, the
Division Bench of this Court did record that
the writing on the ruler pertain to the question of Impact of
subsidies on fiscal management of economics and its relevance from
the view point of global effectiveness. At para 4, it was,
inter alia, observed as under:-
4. …So
far as the departmental inquiries are concerned, there is no
question of strict burden of proof and the matter is to be
decided on the yard stick of preponderance of probability. So far
as the misconduct committed at the examination is concerned,
sometimes the burden would be not even to the extent of yard stick
of preponderance of probability but less than that. Mere finding
of incriminating material is sufficient to hold the examinee
guilty of misconduct. Whether incriminating material was intended
for copying or was actually used or was innocently possessed may
be relevant for imposing punishment. The body conducting the
examination has to point out the misconduct. It is irrelevant
whether the student has used the material for the purpose
of answering the question or not. It is not necessary that the
material which was found from the student must have been utilised
for the purpose of answering the question. To hold the student
guilty of misconduct it is sufficient if the material is found from
the student pertaining to the subjects.
Thereafter,
it was found by the Court that the material was pertaining to the
subject and, therefore, the misconduct was committed. The pertinent
aspect is that the principles of relevancy of the material to the
subject of the examination is not departed from even the said
decision.
The
Apex Court in case of Board of High School and Intermediate
Education, U.P., Allahabadand Anr. v. Bagleshwar Prasad and Anr. ,
reported in AIR 1966 SC, 875, did inter alia observe at para 12
as under:-
12. …
it is necessary to bear in mind that educational institutions like
the Universities or appellant No.1 set up Enquiry Committees to deal
with the problem posed by the adoption of unfair means by
candidates, and normally it is within the jurisdiction of such
domestic Tribunals to decide all relevant questions in the light of
the evidence adduced before them. In the matter of adoption of
unfair means, direct evidence may sometimes be available, but cases
may arise where direct evidence is not available and the question
will have to be considered in the light of probabilities and
circumstantial evidence. This problem which education institutions
have to face from time to time is a serious problem and unless there
is justification to do so, Courts should be slow to interfere with
the decisions of domestic Tribunal appointed by educational bodies
like the Universities. In dealing with the validity of the
impugned orders passed by Universities under Art. 226, the High
Court is not sitting in appeal over the decision in question; its
jurisdiction is limited and though it is true that if the impugned
order is not supported by any evidence at all, the High Court would
be justified to quash that order. But the conclusion that the
impugned order is not supported by any evidence must be reached
after considering the question as to whether probabilities and
circumstantial evidence do not justify the said conclusion.
Enquiries held by domestic Tribunals in such cases must, no doubt,
be fair and students against whom charges are framed must be given
adequate opportunities to defend themselves, and in holding such
enquiries, the Tribunals must scrupulously follow rules of natural
justice; but it would, we think, not be reasonable to import into
these enquiries all considerations which govern criminal trials in
ordinary Courts of law.
Thereafter,
the Apex Court found in the facts of that case that the inquiry had
been fair and respondent was given opportunity of making his defence
and, therefore, the decision of the High Court for quashing the
decision of the University was interfered with.
The
Apex Court in case of Maharashtra State Board of Secondary and
Higher Secondary Education v. IRS Gandhi, reported in AIR 1991(2)
SC, 716, has taken the same view of the Apex Court in its
earlier decision in the case of Board of High School and
Intermediate Education, U.P., Allahabadand Anr. (supra).
It
was further, inter alia, observed by the Apex Court at para 37 as
under:-
37. …It
is open to the authorities to receive and place on record all the
necessary, relevant, cogent and acceptable material facts though not
proved strictly in conformity with the Evidence Act. The material
must be germane and relevant to the facts in issue. In grave cases
like forgery, fraud, conspiracy, misappropriation, etc., seldom
direct evidence would be available. Only the circumstantial evidence
would furnish the proof. In our considered view inference from
the evidence and circumstances must be carefully distinguished from
conjectures or speculation. The mind is prone to take pleasure to
adapt circumstances to one another and even in straining them a
little to force them to form parts of one connected whole. There
must be evidence direct or circumstantial to deduce necessary
inferences in proof of the facts in issue. There can be no
inferences unless there are objective facts, direct or
circumstantial from which to infer the other fact which it is sought
to establish. In some cases the other facts can be inferred, as much
as is practical, as if they had been actually observed. In other
cases the inferences do not go beyond reasonable probability. If
there are no positive proved facts, oral, documentary or
circumstantial from which the inferences can be made the method of
inference fails and what is left is mere speculation or conjecture.
Therefore, when an inference of proof that a fact in dispute has
been held established there must be some material facts or
circumstances on record from which such an inference could be drawn.
The standard of proof is not proof beyond reasonable doubt but
the preponderance of probabilities tending to draw an inference that
the fact must be more probable. Standard of proof cannot be put
in a strait-jacket formula. No mathematical formula could be laid
on degree of proof. The probative value could be gauged from facts
and circumstances in a given case. The standard of proof is the
same both in civil cases and domestic enquiries. (Emphasis
supplied)
Thereafter,
in the facts of that case, it was found by the Apex Court that the
evidence deduced by the Education Standing Committee to record the
findings that at the best of either the examinee or the parent or
guardian is based on the evidence on record were part of fabrication
and, therefore, the order of the High Court for quashing and
setting aside the decision was interfered with.
The
Apex Court, in the case of Central Board of Secondary
Education v. Vineeta Mahajan , reported in 1994 SC, 733,
inter alia, observed at para 5 as under:-
5. …The
Rule clearly defines “the use of unfair means at the
examination” and lays down in simple language that a
candidate having in possession, papers relevant to the examination
in the paper concerned, shall be deemed to have used unfair means at
the examination. The sine qua non, for the misconduct under the
rule, is the recovery of the incriminating material from the
possession of the candidate. Once the candidate is found to be
in possession of papers relevant to the examination, the requirement
of the Rule is satisfied and there is no escape from the conclusion
that the candidate has used unfair means at the examination. The
Rule does not make any distinction between bona fide or mala fide
possession of the incriminating material. (Emphasis supplied)
Thereafter,
the Apex Court interfered with the decision of the High Court, which
was on the basis that the material was not used by the student, as
was an irrelevant consideration for examining the question of
imposition of the penalty.
In
light of the aforesaid decisions, the legal position can be
summarized as under:-
(A) The
power for imposition of the penalty on account of the misconduct
with the domestic Tribunal like that of Suddhi Samiti or the
University, as the case may be, are to be exercised after following
the principles of natural justice. However, the scope and ambit of
observance of principles of natural justice may vary from facts to
facts, depending upon each case.
(B) If
no notice has been given to the student concerned, the decision of
such Tribunal can be said as void.
(C) If
the notice has been given to the student concerned to show cause and
thereafter reply is submitted and the action is taken, while
examining the question of the scope and ambit of the application of
the principles of natural justice, this Court may consider the
question of prejudice caused to the student concerned, in case there
is any breach of such principles by the domestic Tribunal before
taking any final decision.
(D) The
observance of principles of natural justice and its scope and ambit,
though may vary from facts to facts, but has to be on the basis of
fair play action and would depend upon the particular subject matter
of the case to be examined by the domestic Tribunal.
(E) Permitting
cross-examination is not sine qua non
to the concept of fair play action in every case, but can be made
available if the facts and circumstances so demands of a particular
case.
(F) If
the credibility of any person, who has testified or given some
information, is in doubt or if the version or the statement of the
person, who has testified is in dispute, the right of
cross-examination would inevitably form part of fair play inaction,
but where there is no lis regarding the facts, but certain
explanation of the circumstances only, there is no requirement of
cross-examination to be fulfilled to justify fair play action.
(G) Where
on the facts there is no dispute that no real prejudice has been
caused to any party by an order in absence of any formal opportunity
to cross-examination, per se, would not invalidate or vitiate the
decision arrived at fair play.
(H) This
Court may interfere in a petition under Article 226 of the
Constitution of India, if there is breach of the observance of the
principles of natural justice and thereby breach of fair play action
on the part of the authority while imposing punishment.
(I) This
Court may quash the action of imposition of the punishment if such
an order is not supported by any evidence and while considering the
question of sufficiency of evidence, this Court may also consider as
to whether the probabilities and the circumstantial evidence do or
do not justify the conclusion arrived at by such domestic Tribunal
or not.
(J) If
the material relevant to the examination is found from the student
concerned and there is an admission of the student for such purpose,
the scope of the applicability of the principles of natural justice
would be narrow, but in a case where the existence of the material
or its relevancy is at serious doubt, the applicability of the
principles of natural justice and the fair play action may be wide,
but of course subject to the facts and circumstances of each case.
(K) The
standard of proof as envisaged in domestic Tribunal would be the
same as that of civil case in domestic inquiries and not like the
strict rules of Evidence Act to be observed at the time of trial in
the criminal case.
(L) The
inference from the evidence and the circumstances must be carefully
distinguished from conjectures and speculations. The mind is prone
to take pleasure to adopt circumstances to one another and even in
straining them a little to force them to form part of one connected
to all. Therefore, there must be evidence direct or circumstantial
to deduce necessary inference in proof of the facts in issue. There
can be no inference unless there are objective facts direct or
circumstantial form, which to infer the other facts, which it is
sought to establish. In some cases, the other facts can be inferred
inasmuch as practical, as if they had been actually observed. In
other cases, the inference do not go beyond reasonable probability.
If there are no positive proved facts, oral, documentary or
circumstantial, from which the inference can be made, the method of
inference fails and what is left is mere speculation or conjectures.
Therefore, when an inference of proof that a fact in dispute has
been established, there must be some material facts or circumstances
on record from which such inference can be drawn.
(M) The
material found must have relevancy to the subject or the examination
irrespective of the fact that whether the material has been actually
used or not for attracting the power for imposition of punishment.
However, the actual use of such material at the examination would be
relevant at the time of proportionalities or quantum or gravity of
the punishment/s.
(N) If
circumstantial evidences do not permit a conclusion on reasonable
prudence, more elaborate examination of facts may be required, but
the gap cannot be filled up on speculation or conjectures. However,
if the reasonable prudence permits drawing of inference, such
elaborate examination may not be required.
If
the facts of the present case are examined in light of the aforesaid
legal position, the factual situation appears to be as under:-
(1) The
petitioner has appeared in the examination of LL.B. At the time
when the petitioner appeared at the examination, there was some
altercation of words between the petitioner and the observer, since
he was being disturbed on account of the inquiry was being made by
the observer with the other student. The same tempted the observer
to examine the compass box of the petitioner.
(2) As
per the statement of the observer of the University, foot-ruler was
found from the petitioner, over which there was writing of banking
subjects. The timing for inspection is shown as ‘at 11.30 a.m., and
the observer had instructed to hand-over the foot-ruler to the
Principal. In the same statement there is a reference to the random
checking at 4.30 p.m., and at that time the talk for disturbance
with one student in one block with the observer.
(3) The
statement of the Principal Smt. Meenakshi Darekhan refers to some
writing on foot-ruler, but does not speak for the contents of the
writing and further states that a removable chit was sticked/affixed
on six-inch long foot-ruler and she stated that it was appearing
that some points were written, which was seen by her and the
observer. There also, there is no reference to the contents of the
writing as to whether for the subject of banking or any other
subject. In the statement, it has been further stated that the chit
was torn off by her and the foot-ruler was broken by her and was
thrown in the waste box by her.
(4) The
existence of the material of foot-ruler or the chit on the
foot-ruler as alleged were neither made available to the Shuddi
Samiti, nor any statement was recorded of the student concerned and
the material was destroyed by the Principal of the College herself
in presence of the observer.
(5) In
the statement of Jr. Supervisor, Shri D.D. Prajapti, there is a
reference to the writing on foot-ruler found from one student, who
was permitted to right the answer paper after half-an-hour.
(6) In
the statement of Sr. Supervisor, Shri R.Y. Mankad he refers to the
reporting by the observer for imposing punishment for prohibition to
right answer-book for half-an-hour, but the pertinent aspect is that
the information provided to him by the observer are reproduced in
quotes ( ) in exact words. If the same is considered, it
supports to the extent that on account of the altercation of the
words for being disturbed between the petitioner and the observer,
the checking was made of the compass box of the petitioner and the
material was found for the examination.
(7) If
the statement of Shri R.Y. Mankad, Sr. Supervisor, Mrs.Rajeshreeben
Manger, Observer, Incharge Principal and Sr. Supervisor,
Ms.Meenakshi Darekhan and the Jr. Supervisor, Shri D.D. Prajapati,
are considered, the following appears to be undisputed position:-
(1) The
petitioner has appeared at the examination of LL.B.
(2) There
was altercation of words for disturbance being created by the
observer and the petitioner.
(3) The
inspection of compass box of the petitioner was made by the
observer.
(4) The
foot-ruler was taken away.
(5) It
was appearing that there was writing on foot-ruler.
The
apparent basic discrepancies in the statements are on the following
points:-
(1) Whether
writing on foot-ruler was there or a chit was affixed with the
writing on the foot-ruler.
(2) The
contents of the writing on the aspects as to whether pertaining to
the subject or the examination or other writing.
(3) As
per the observer and the examiner such foot-ruler did not attract
the punishment exceeding prohibition for half-an-hour in writing
answer paper and, therefore, the foot-ruler or the alleged chit,
both, were destroyed after imposition of the punishment by the
observer and the Sr. Supervisor and the Principal.
(4) There
is basic discrepancies in the reporting by the Sr. Supervisor, Shri
Mankad and there is no unanimity on the aspects of contents of the
writing of the foot-ruler and also as to whether such writing was
over the foot ruler or over the chit.
(5) As
per the petitioner, the foot-ruler was taken by him in the
examination since tabular statement may be required to be prepared
and since the compass box and the foot-ruler were of his child aged
6 ½ years, he might have written, but such writing, in any
case, was not having any relevancy to the subject or the
examination.
If
the material itself is available before the domestic Tribunal or the
Suddhi Samithi or the University, as the case may be, it stands on a
different footing or if statement was recorded of the petitioner by
the Supervisor or the observer, as the case may be, on the spot,
when such material was found, including the contents thereof, it may
also stand on a different footing. But it appears that the observer
and the supervisor were satisfied with the punishment for
prohibition of half-an-hour at the examination and, therefore,
destroyed the foot-ruler. The University initiated the proceedings
at the later stage when it came to its notice. As against the same,
the defence of the petitioner was that the foot-ruler did not
contain any material relevant to the subject or the examination.
Such defence would essentially require the testification of the
facts on the aspects of contents of the writing on foot-ruler. The
same would be more required, because of ex-facie basic discrepancies
in the statements of the observer, principal, and its reporting to
the Sr. Supervisor, Shri Mankad and his statement. Whether writing
was there on the foot-ruler or a chit was affixed itself is at
serious doubt. Further no statements were recorded before Suddhi
Samithi or in presence of the petitioner.
Therefore,
under these circumstances, it appears that the information which
has been given by way of a statement itself are in serious doubt and
there is no chain of inference traceable on the basis of reasonable
prudence.
Therefore,
if the test of fair play action by observance of the principles of
natural justice was to be satisfied, it was essentially a case for
giving opportunity of cross-examination of the witnesses, whose
statements were recorded namely that of Shri R.Y. Mankad, Sr.
Supervisor, Ms. Rajeshree H. Mengar, Observer, Ms.Meenakshi
Darekhan, Principal and Sr. Supervisor and Mr.Prajapati, Jr.
Supervisor to explore the truth by testing the statement made.
Hence, it appears that considering the facts and circumstances and
the basic doubts apparent from the statements recorded, the
cross-examination was if permitted, would have revealed the truth if
any really existed.
It
is an admitted position that the petitioner did demand for
permitting cross-examination and he had been repeatedly demanding,
whereas Suddhi Samithi has not permitted the same. Not only that
but it appears from the proceedings of the Executive Council of the
University that while considering the recommendations of the Suddhi
Samithi, some of the members did express the view that the
opportunity of cross-examination has not been given and, therefore,
the punishment may not be imposed. However, it appears that in the
proceedings of the Executive Council of the University, it has been
recorded that after considering the report of Suddhi Samithi, one of
the members, Shri D.G. Patel in support of the
opinion/recommendation of the Suddhi Samithi, expressed his view
whose English meaning can be extracted as under:-
(1) There
is no question of giving any cross-examination, because in the
history of the University whenever any misconduct is committed, such
opportunity is not given to any student. If such permission is
granted, keeping in view the post held by Shri Rajnish Kumar Rai, it
may raise contradictions in the statements of the witnesses.
Further, after considering the representation made by one of the
Members, Shri Pankaj shukla, it was inter alia recorded, the English
meaning thereof can be extracted as under:-
The
observer, Jr. Supervisor, Sr. Supervisor, Principal, etc., are
responsible persons sent by the University and they have discharged
their duties in a proper manner. Therefore, no doubt can be raised
on their statements. Under these circumstances, the proceedings
adopted by Suddhi Samithi, is proper. Ultimately, by majority
the decision was taken to accept the recommendation of the Suddhi
Samithi.
If
the decision to deny cross-examination is based on the impression or
tradition of the University in past that no such permission has not
been granted, the same can hardly be said as a valid reason for
denying cross-examination, so as to meet with the observance of
principles of natural justice in fair play action. Had Suddhi
Samithi, or the University examined and weighed each evidence on a
reasonable prudence, but with the discrepancies and basic
infirmities and distinctions in the statements of the officers of
the University and thereafter denied the cross-examination, possibly
the matter could have been differently considered. But if the
Suddhi Samithi, or the University has proceeded on a premise that
there is no question of giving opportunity of cross-examination
since in past in the history of the University such permission has
not been granted, the same can neither be countenanced in the fair
play action, nor such can be said as germane to the exercise of the
power in observance of the principles of natural justice and thereby
the fair play action.
Further,
if the denial of cross-examination is on the ground that it may give
rise to the contradictions of the statements of the witnesses, such
a ground can be said as to hush up the inquiry, instead of
completing the same in fair play manner. It is hardly expected for
the Suddhi Samithi, or the University, as the case may be, who is to
exercise the power as a domestic Tribunal to hush up the inquiry and
thereby to foreclose the opportunity of cross-examination on
surmises and conjectures that it may give rise to the contradictions
of the statements of the witnesses. Had the Suddhi Samithi, or the
University, as the case may be, examined the statements of the
Observer, Jr. and Sr. Supervisors and the Principal by applying the
test of reasonable prudence, it would have been recorded that there
were basic contradictions in the statements of the witnesses, inter
se and not only that but if such contractions were excluded, there
was huge gap to draw inference even on probabilities, including the
principles that the mind is prone to infer that the writing was
there on the foot-ruler or chit was fixed on the foot-ruler and as
the relevancy of the writing was to the subject or the examination.
If there was no evidence even on probabilities that the writing did
exist relevant to the subject or the examination, neither the power
for punishment could be attracted, nor the punishment itself could
be maintained. Therefore, denial of cross-examination to the
petitioner on surmises that it may create contradictions in the
statements of the witnesses can be said as failure to give
reasonable opportunity in a domestic Tribunal not meeting with the
test of fair play, more particularly when it is not even the case of
the respondent University that any of the statements was recorded in
the presence of the petitioner or before Suddhi Samithi. The
essential purpose of the cross-examination is not only to explore
the truth, but is also to observe the principles of fair play
action. If the inquiry is hushed up, there would not be any
fairness as expected for the domestic Tribunal. Merely because the
petitioner is holding the post of IPS Officer could also not be said
as a valid ground to deny the cross-examination, when he was being
treated in capacity as the student and he had to defend the case as
the student. It is true that holding the post by any persons
concerned may not confer any additional right under the law, but at
the same time, it can hardly be disputed that holding the post by
any person would result into disadvantageous position for enjoying
the rights if otherwise available in law. There was no material on
record to show that the petitioner in capacity as IPS Officer did
try to prevail over any of the witnesses or there was any attempt
directly or indirectly or even remotely to tamper the evidence by
the petitioner.
Under
these circumstances, if the denial of cross-examination is on the
basis that the petitioner is holding the post and, therefore, it may
give rise to the contradictions in the statements of the witnesses,
the same can only be read as not only unfair action, but taking away
the right for cross-examination, which otherwise exists under the
law, keeping in view the facts and circumstances of the case. If
the University has full faith upon its Observer, Jr. and Sr.
supervisors, or the Principal, as referred to in the proceedings of
the Executive Council, denial of the cross-examination to the
petitioner on the ground that such may create contradictions in the
statements in view of the post held by the petitioner, can be termed
as only an attempt to hush up the inquiry in an unfair manner and to
avoid the exploration of the truth at the cross-examination. If the
conduct of the inquiry is examined in light of the past back-ground,
it appears that on the one hand, just on the statements, without
issuing any show-cause notice, the petitioner was called upon to
submit explanation as to why the punishment should not be imposed
and at that stage, Special Civil Application No.7292 of 2008 was
preferred and the University agreed for giving additional notice
containing details and the proposed punishment to be imposed.
Thereafter, at the inquiry, except supplying statements and to give
opportunity of submitting reply in spite of the specific demand made
for cross-examination after denial of the allegation, the same has
not been given. Under these circumstances, the proceedings as
conducted before the domestic Tribunal and its consideration thereof
by the Executive Council of the University could be said as in
breach of the principles of natural justice and not meeting with the
test of fair play action as was required in the present case.
The
attempt by the learned Counsel for the respondent University was to
contend that in certain cases this Court has found that the
witnesses may be won-over is one of the valid consideration for
denial of cross-examination and it was submitted that such was in
the present case and, therefore, the action on the part of the
Suddhi Samithi, to deny cross-examination or, in any case, by the
University could said as valid.
I
am afraid such contention can be accepted on the face of basic
discrepancies in the statements of the Observer, Jr. and Sr.
Supervisors and the Principal of the University. If statements are
not recorded in the presence of the student concerned and there are
basic infirmities in the statements and if the material is
non-existent before Suddhi Samithi, had the Suddhi Samithi, desired
to conduct inquiry in a fair manner, it was required for Suddhi
Samithi, to permit cross-examination, keeping in view the peculiar
circumstances. The fact situation of the case upon which the
reliance has been placed by the learned Counsel for the University
wherein observations were made by this Court that the witnesses may
be won-over cannot be equated with the facts of the present case as
narrated hereinabove, in earlier paragraphs.
It
was also attempted to submit by the learned Counsel for the
University that if the statements are read based on the
probabilities and a reasonable prudence, it goes to show that the
petitioner committed misconduct and, therefore, this Court may not
re-appreciate the evidence as if the Court of the appeal by
recording a different conclusion based on the facts.
It
is true that this Court would not sit in appeal, but ensuring the
observance of principles of natural justice and fair play action is
a basic element to be observed by any domestic Tribunal like that of
Suddhi Samithi, or the University, as the case may be. If this
Court has found that the statements recorded are at basic variance
and there is basic proof lacking in an un-controverted manner for
the material/writing having nexus to the subject or the examination,
the cross-examination was required to be permitted, more
particularly when writing or the material were non-existent at the
time when the inquiry was conducted, such consideration would not be
as that of the Court of appeal. But would be to scan and to
undertake the judicial scrutiny of the procedure undertaken by the
Suddhi Samithi, where by observance of the principles of natural
justice, which is the basic requirement and thereby a fair play
action has resulted or not. This Court may not re-appreciate the
evidence as that of the Court of appeal, but if the basic infirmity
exists upon the evidence available on record as that of the
statements, which, in any case, are not recorded in presence of the
petitioner and, in any case, there is no direct evidence available
on record to show that the writing did exist having relevancy to
the subject or the examination, complaint of not giving
cross-examination and thereby breach of principles of justice cannot
be thrown away on the so-called findings recorded by the Suddhi
Samithi, or the University, as the case may be on surmises and
conjectures, which are titled as on probabilities by the University.
The test to be applied to such probabilities would be reasonable
prudence with impartiality and not as that of the presumption of the
guilt on the part of the student. If such basic things are lacking
and the attempt is to hush up the inquiry by foreclosing a valuable
right of fair play action, it can hardly be said that the conclusion
recorded for finding guilt are on a valid inference on
probabilities, but it appears to the Court, on surmises and
conjectures, therefore, can also be said as no sufficient evidence
to prove the guilt or the vitiation of the proceedings before the
domestic Tribunal ultimately culminated into imposition of
punishment.
In
view of the aforesaid observations, the impugned decision on the
part of the Suddhi Samithi, or the University, as the case may be
for imposition of the punishment upon the petitioner for declaring
him as failed (F + O) cannot be sustained and deserves to be quashed
and set aside. Hence, quashed and set aside. Consequently, the
University shall be required to declare the result of the petitioner
of the concerned examinations forthwith.
ORDER
BELOW CIVIL APPLICATION NO.11120 OF 2008:
The
application No.11120 of 2008 is preferred by the petitioner, which
is simultaneously heard with the main Special Civil Application, to
direct the University to declare the result of the applicant
petitioner and to direct the University to take admission of the
applicant in any of its affiliated Law Colleges in First Semester,
Second Year LL.B., in the year 2008-09.
In
view of the judgement/order passed by this Court in the main Special
Civil Application, whereby the decision of the University is quashed
and set aside for imposition of the punishment upon the applicant
petitioner and the University is directed to declare the result of
the petitioner. As a consequence thereof, the prayer to that extent
would not survive, except observing that the University shall
declare the result of the examinations of Second Semester of First
LL.B.
Concerning
to the prayer to direct the University to grant admission in any of
the affiliated Colleges in First Semester, Second LL.B. Academic
Year is concerned, as such the same was not the subject matter of
the petition. However, the attempt on the part of the learned
Counsel for the applicant-petitioner was that it is on account of
the impugned decision of the University, the result of the
petitioner could not be declared and as a consequence thereof the
petitioner could not take admission in the First Semester of Second
Year LL.B., and it was submitted that if this Court has allowed the
main Special Civil Application, the prejudice caused to the
petitioner-applicant may be undone. It was also submitted that if
delay had taken place during the pendency of the main Special Civil
Application, it may also not operate adverse to the petitioner.
Whereas
on behalf of the University, it was submitted by the learned Counsel
for the University and the Vice Chancellor that the
applicant-petitioner has actually not applied or taken admission in
any of the affiliated colleges and, therefore, such direction may
not be given. It was also submitted that the examination of the
First Semester of Second LL.B., is to commence on 5.11.2008, but in
absence of the admission taken by the petitioner in any of the
affiliated colleges or in absence of the required attendance or
filling up of the examination form, this Court may not direct for
permitting the appearance of the petitioner applicant at the
said examination as prayed for by the learned Counsel for the
applicant-petitioner.
As
such it is true that on account of the impugned decision of the
University, prejudice, if any, caused to the applicant-petitioner
may be undone and had the result been declared well in time, the
applicant-petitioner could have got admission in First Semester of
Second LL.B., provided he was declared as passed. There is no
material produced on record for declaration of such result as passed
and the mark-sheet for such purpose. Therefore, this Court cannot
proceed on the basis that after the quashing of the order of the
University for imposition of the punishment, the
applicant-petitioner is declared as passed by the University and he
was entitled to apply for admission in First Semester of Second Year
LL.B., as if passed. The fact also remains that the
applicant-petitioner was prevented from applying for admission in
the First Semester of Second Year LL.B., on account of the impugned
decision of the University, which is ultimately set aside by this
Court. It is also an admitted position that the examinations are to
start of First Semester of Second on 5th November, 2008.
If the matter is strictly viewed, in absence of the admission taken
by the applicant-petitioner in First Semester of Second LL.B., and
having not filled up the forms for such examination, the University
cannot be directed to permit the petitioner-applicant’s appearance
at the examination of First Semester of Second LL.B, which is to
commence on 5.11.2008. However, had the result of the
petitioner-applicant been declared by the University well in time
and if the petitioner was declared as passed, in normal course, he
would have been entitled for admission in First Semester of Second
LL.B., and he could have undergone the studies and also could have
filled up the examination form for examination to be held on
5.11.2008. Since the time was consumed in the present litigation,
such complication has arisen and irreversible situation has been
created.
It
has also been submitted by the University that if the present
punishment is quashed and the applicant-petitioner is desirous to
appear in both the semesters’ examinations of Second LL.B., in the
next academic session, which will be held in April, 2009, the same
can be considered and there are instances in past for such purpose.
It was also submitted that if the result of the petitioner-applicant
is ultimately declared and if he is declared passed in the Second
Semester of First LL.B., which is the subject matter in the main
petition and he takes admission in the affiliated college, the
presence aspects can be considered for condonation or otherwise and
such, in any case, would not result into wastage of academic period
of the petitioner-applicant.
It
appears that the irreversible situation has arisen on account of the
time consumed in the litigation, but at the same time it would be
required for the University to take consequential effect upon the
career of the student. If the decision of the University of
imposition is ultimately set aside and on account of the time
consumed in the present litigation and the decision rendered by this
Court, the result of the petitioner was not declared and the
petitioner was prevented from applying for admission in First
Semester of Second LL.B., or Second Year of LL.B., such situation
can be salvaged if the result of the applicant petitioner is
declared and the petitioner takes admission in the Second Year of
LL.B., for both the semesters and as and when the examinations of
the Second Year LL.B., for both the Semesters are held in April
May, 2009, in view of the peculiar circumstances, requisite period
may be regularized or condoned so as to make the
applicant-petitioner eligible to appear in the examinations of First
Semester of Second LL.B., together with the examinations of Second
Semester of Second LL.B. Such observations deserve to be made to
salvage the situation from the damage caused on account of the
impugned decision of the University, which is ultimately quashed by
this Court.
Hence,
it is further directed that the University shall declare the result
of the applicant petitioner on or before 14.11.2008. After the
declaration of the result, if the petitioner applicant is
declared passed, he shall be at liberty to take admission in Second
Year LL.B., of First Semester as well as of Second Semester
simultaneously and shall also be at liberty to prosecute studies in
accordance with law. It is also observed that in case of any
shortage of requisite number of days of attendance or studies for
complying the eligibility to appear in the next examinations of
First Semester as well as Second Semester of Second LL.B., it would
be open to the petitioner to apply the College or the University, as
the case may be, for regularizing the period or for condoning the
period on account of the aforesaid unavoidable circumstances and
the delay caused in litigation as well as on account of the decision
of the University, which is ultimately quashed by this Court.
Hence,
ordered accordingly. Special Civil Application as well as the Civil
Application shall stand allowed to the aforesaid extent. Rule made
absolute accordingly. No order as to costs.
24.10.2008 (Jayant Patel, J.) vinod