CA/6566/2008 4/ 11 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION No. 6566 of 2008 In SPECIAL CIVIL APPLICATION No. 7942 of 2008 ========================================================= RAJNISH KUMAR RAI - Applicant(s) Versus GUJARAT UNIVERSITY & 1 - Opponent(s) ========================================================= Appearance : MR ND NANAVATI, SR.ADVOCATE with MR HARIN RAWAL with MR PS CHAMPANERI for the Applicant MR SN SHELAT, SR ADVOCATE with MRS VD NANAVATI for the Opponent ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 10/06/2008 ORAL ORDER
The
applicant has moved a draft amendment. The same is granted. The
applicant shall carry out the amendment on or before 12th
June, 2008.
By
way of this Application, the applicant has prayed for various reliefs
in paragraph 20(a) to paragraph 20(i) which, inter alia, contain
prayer for relief of staying the recommendations and/or decision of
the ‘Suddhi Samiti’ forwarded to the Executive Council and to suspend
the recommendations of ‘Suddhi Samiti’. The applicant has also prayed
for a direction to the Executive Council to supply the material
prayed for by the applicant and to direct the Executive Council to
provide opportunity of hearing to the petitioner before taking any
final decision in the matter. It is further prayed that the
respondents may be directed to declare the result of the applicant
for all subjects of Second Semester.
The
applicant earlier preferred petition being Special Civil Application
No.7942/2008, wherein the petitioner prayed for the below mentioned
prayers in paragraphs 26(A) to 26(H):
(A) That
this Hon’ble Court be pleased to direct the respondent authorities to
supply the aforesaid copies of the decision taken by the Suddhi
Samiti of Gujarat University qua the petitioner;
(B) This
Hon’ble Court be pleased to quash and set aside the decision dated
25.5.2008 taken by the Suddhi Samiti of Gujarat University;
(C) This
Hon’ble Court be pleased to quash and set aside the decision of the
Suddhi Samiti as being illegal, void and contrary to the principles
of natural justice and fair play;
(D) That
pending admission, hearing and final disposal of this petition, this
Hon’ble Court be pleased to stay operation, implementation, further
operation of the decision and stay further consequential order which
may be passed;
(E) That
pending admission, hearing and final disposal of this petition, this
Hon’ble Court be pleased to direct the University to supply the
various documents and materials asked by the petitioner in his
representation dated 23.5.2008;
(F) That
pending admission, hearing and final disposal of this petition, this
Hon’ble Court be pleased to direct the respondent authorities to
place before this Hon’ble Court and supply copy of the procedure
followed up by the Suddhi Samiti in arriving decision in respect of
the petitioner in connection with the charges leveled against the
petitioner;
(G) That
pending admission, hearing and final disposal of this petition, this
Hon’ble Court be pleased to direct the respondents to produce the
records of the inquiry against the petitioner by the Suddhi Samiti;
(H) That
any other and further relief that is deemed fit by this Hon’ble Court
be granted.
After
hearing the parties, an order dated 28th May, 2008 was
passed in the said Special Civil Application No.7942/2008 and
subsequently the time to submit the representation was extended until
7th June, 2008.
It
comes out from the application and submissions on behalf of the
applicant that after the said order dated 28th May, 2008,
the applicant submitted two representations i.e. one on 5th
June, 2008 and second on 7th June, 2008, which are at page
92 and at page 104.
It
also comes out from the submissions of the applicant that the
applicant also requested for opportunity of personal hearing and, for
that purpose, apart from relying upon the principles of natural
justice, he also relied upon the order dated 12th May,
2008 passed in Special Civil Application No.7292/2008. Besides making
the request for personal hearing, the applicant also prayed for
copies of several documents and other material which, the applicant
believes, are to be relied upon by the Executive Council while taking
the final decision pursuant to the Suddhi Samiti’s recommendations.
The
applicant has come out with a grievance that despite the request for
supplying the requested material and/or opportunity of personal
hearing, the requests have not been granted and such action of the
respondent is not only against the principles of natural justice but
also contrary to the order dated 12th May, 2008 passed in
Special Civil Application No.7292/2008. The applicant has, today,
submitted an amendment whereby communication dated 6th
June, 2008 is placed on record. From the said communication, it
transpires that the respondent University has conveyed to the
applicant that ýS…adverse material which has been relied are the
copies of 4 statements of University Observer, Senior Supervisor,
Junior Supervisor and Principal.ýý It is also mentioned in the said
communication that the show-cause notice contains sufficient material
and that the representation tendered by the applicant will be
considered by the Executive Council. The applicant has made a
grievance that the said letter and the arbitrary attitude of the
respondent University shows that the University is not inclined to
provide opportunity of hearing and/or the material required by the
applicant for his defense. In applicant’s submission, such action of
the respondent University has adversely affected his right of defense
and rendered him unable to effectively represent or defend his case
and would also vitiate the order which the Executive Council is to
pass.
Mr.Shelat,
senior counsel with Mrs.Nanavati has appeared for the respondent
University and stated that the hearing as provided in the order dated
12th May, 2008 was afforded to the applicant before the
Achar Samiti/Suddhi Samiti, and that is what was stipulated on behalf
of the University when the order dated 12th May, 2008 was
passed. Mr.Shelat submitted that the said order was passed before the
Suddhi Samiti forwarded its recommendations to the Executive Council
and that, therefore, it implies that the hearing contemplated and
mentioned in the order dated 12th May, 2008 was to be
afforded to the applicant before the Suddhi Samiti and neither the
statement made on behalf of the respondent University nor the said
direction would apply to the proceedings before the Executive
Council. He also submitted that as a matter of long standing policy
and practise, personal hearing before the Executive Council is not
afforded to any student before the Executive Council takes a
decision. He also submitted that there is no provision or requirement
for second show-cause notice and that, therefore also, such a
question does not arise.
It
is stated by both the sides that the meeting of the Executive Council
was to take place from 9:30 a.m. today. It was in view of the said
fact that Mr.Nanavati, senior advocate appearing with Mr.Champaneri,
submitted that the least the applicant can, in the background of such
facts and circumstances, pray for is that if at all any decision by
the Executive Council is rendered against the applicant, the same may
not be implemented for a period of one week.
Mr.Shelat,
senior advocate on the other hand, opposed the said submission and
contended that earlier when the order dated 28th May, 2008
was passed, such a relief was not granted and that the present
application, which is virtually repetition of the reliefs prayed for
in the petition, is not maintainable. He, in this view of the matter,
submitted that the relief prayed for by the applicant may not be
granted. He also reiterated that the petition as well as the
Application are premature, and if and when the decision is taken by
the Executive Council then, if it is against the applicant, the same
can be challenged by him on all available grounds.
From
the material presently available on record of Special Civil
Application No.7948/2008 and present Civil Application No.6566/2008,
it transpires that the applicant has repeatedly requested for certain
material which he considers necessary and relevant for his defense.
He has also repeatedly requested for opportunity of hearing. On the
other hand, it is the case of the respondent University that the
material which is to be taken into consideration and relied upon, has
been supplied to the applicant and the opportunity of hearing before
the Achar Samiti was also afforded to the applicant and that,
therefore, opportunity of hearing as prayed for is not provided for
in the rules nor warranted.
As
of now, the Executive Council does not appear to have passed any
order and, in any case, the same is not on record. It is, therefore,
not possible to presume, in the first instance, that it would be
against the petitioner, and secondly it is also not possible to
examine the same and/or to ascertain what facts and details have been
taken into account by the Executive Council. Under the circumstances,
it would not be, in my view, just to make interim order as prayed for
more so when the hearing of the Special Civil Application
No.7942/2008 has been scheduled for 24th June, 2008 by
order dated 28th May, 2008 which was passed after hearing
the parties. On overall view of the matter it would not be proper, at
this stage, to pass any order staying the implementation and
operation of an order which is yet to be passed and on presumption
that it would be against the applicant. Further, if it is against the
applicant, he would have the opportunity to challenge the same on all
available grounds including the grounds and grievance ventilated in
this application. If and when the order by the Executive Council is
passed, the same shall be immediately placed on the record of the
petition by the respondent University and that would be subject to
further orders that may be passed in the petition after the Court
peruses the order passed by the Executive Council.
It
is clarified that merely because the implementation and operation of
the order is not stayed at this stage, it would not preclude the
applicant from requesting the Court to consider the prayer for
staying its implementation and operation after the same is passed and
is placed on record, as directed hereinabove, by the University.
On
the facts of the present case and the averments made in the
Application and considering the fact that the Executive Council
committee is being convened today and decision might have been taken
today and considering the submissions made by Mr.Shelat, learned
senior advocate to the effect that the respondent University will not
have any objection if the hearing of the petition is preponed, the
request of Mr.Rawal for preponing the hearing is granted.
Accordingly, the next date of hearing of Special Civil Application
No.7942/2008 would be 16th June, 2008, instead of 24th
June, 2008 as originally ordered.
Though
it would be a repetition, it is clarified and stated that if, in the
meanwhile, the order is passed, the respondent University will
immediately place it on record.
It
is also clarified that it would be open to the applicant to approach
the Court even before 16th June, 2008 if further action on
the basis of the decision of the Executive Council is taken against
the applicant.
Civil
Application to be heard with Special Civil Application No.7942/2008.
(K.M.Thaker,
J.)
/moin