BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01/10/2007 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU W.P (MD) No.2330 of 2006 and W.P.M.P. (MD) Nos.2554 and 2555 of 2006 J.Chelladurai Correspondent Jeyaraj Chelladurai College Periyakulam, Theni District ... Petitioner vs. Madurai Kamaraj University Rep. by its Registrar Madurai Palgalai Nagar Madurai ... Respondent Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned order of the respondent in ref. No.EDP/Examination/2005 dated 07.02.2006 and quash the same and consequently direct the respondent to permit the petitioner to admit the students in their college for the academic year 2006-2007. !For petitioner ... Mr.M.Vaidyalingam ^For Respondent ... Mr.R.Janakiramulu :ORDER
The petitioner is the Correspondent of Jeyaraj Chelladurai College,
Periyakulam and in this writ petition, the challenge is to the order dated
07.02.2006 passed by the Registrar of the respondent Madurai Kamaraj University
demanding a sum of Rs.1,02,099/- towards the expenses incurred for conduct of
examinations held in the petitioner College during November 2004 and
particularly April 2005. They were also warned by the same order that if the
amounts are not paid, the Management will not be permitted to admit students for
the academic year 2006-07.
2. In that writ petition, notice was ordered on 10.3.2006 and was
formally admitted on 10.4.2006. Even though an interim stay was sought for in
W.P.M.P. (MD) No.2555 of 2006 to stay the proceedings and direction was sought
for in W.P.M.P. (MD) No.2555 of 2006 to conduct examination, only notice was
ordered initially and when the matter was admitted on 10.4.2006 this Court
directed the petitioner to pay a sum of Rs.50,000/- towards the claim made by
the respondent University and on that condition, interim stay was granted. It
is now stated that the amount has been paid already.
3. I have heard the arguments of Mr.M.Vaidyalingam, learned counsel
appearing for the petitioner and Mr.R.Janakiramulu, learned counsel for the
respondent and have perused the records.
4. The petitioner College is a private College within the meaning of
Section 2(7) the Tamil Nadu Private Colleges (Regulation) Act 1976 [for short,
‘Private Colleges Act’]. It is also affiliated to the respondent University.
With reference to the admission of students and any disciplinary action and the
internal administration of the college including the conduct of examinations,
the power vest with the Principal of the College by virtue of Rule 8 of the
Tamil Nadu Private Colleges (Regulation) Rules 1976.
5. During April 2004, the University fixed examination schedule to
start from 19.4.2004. The Principal of the petitioner College was appointed as
Chief Superintendent. But on the morning of 19.4.2004, the University
received reliable information that two question papers relating to “Income Tax
Law and Practice paper – II” for B.Com degree examination were leaked out by the
staff of the petitioner College. Therefore, the two examinations were
cancelled with immediate effect.
6. The University constituted a committee comprising of three Syndicate
members to visit the College and enquire about the leakage of question papers in
respect of the Colleges in Madurai City. The Committee constituted for the said
purpose, visited a number of Colleges and gathered information. The Committee
submitted its report along with relevant documents to the conveners’ committee,
managing the administration of the University (since the Vice-Chancellor’s post
was vacant). appointed). On the basis of the report, a criminal complaint was
lodged with the Nagamalai Pudukkottai Police on 22.4.2004 and a case was
registered in Crime No.180 of 2004 for an offence under Section 380 IPC. On
investigation, two non-teaching staff members of the College, by name, Ramesh
and Senthil, were identified as culprits and they had stealthily removed the
cover of the question paper bundle and circulated the same. The overall
responsibility was fixed on the Chief Superintendent, who is also the Principal
of the College. Because of the leakage of the question papers news reports
appeared in the newspapers, it created an embarrassment to the University.
7. The report of the three member committee was approved by the conveners’
committee and it was placed before the Syndicate for further action. The
University was forced to re-schedule the examinations of B.Com Degree and B.Sc.
Degree (Computer Science) to be conducted afresh on 03.5.2004 and 30.4.2004
respectively. Likewise, the examinations of other subjects were also re-
scheduled. Because of the leakage of question papers, another Professor was
appointed to re-set the question papers and the Principal of CPA College, Bodi,
was appointed to act as the Chief Superintendent to conduct the examinations of
April 2004 in the petitioner’s College. In view of the appointment of an
outsider as the Chief Superintendent, further Invigilators were also required
for keeping surveillance over the conduct of the examination. The University
incurred considerable expenditure on this account.
8. The matter was placed before the University. The Syndicate, by a
Resolution dated 19.6.2004, resolved that no further affiliation for new courses
/ additional strength for the existing courses will be given to the petitioner
College for three years and the examinations for the academic years 2004-05,
2005-06 and 2006-07 in the petitioner College will be conducted by the
University and that the entire expenditure will have to be met by the college.
Further, the expenses incurred on the leakage of question papers will also be
recovered from the college.
9. Apart from all these, a show cause notice was issued to the
petitioner College as to why it should not be disaffiliated. After the said
notice was communicated, the petitioner College paid a sum of Rs.35,928/-
towards the expenditure for re-scheduling the examinations. The University
also issued another letter to the petitioner College to pay a sum of Rs.50,099/-
and Rs.52,000/- thereby demanding a total sum of Rs.1,02,099/- towards the
expenditure incurred by the University for the conduct of examination already
held at the petitioner’s College during November 2004 and April 2005. It is
this order, which is under challenge in this writ petition as noted above.
10. Learned counsel for the petitioner submitted that the College
Management was totally at dark as to what transpired in the college during
examination and the Management should not be penalised for the activities of its
servants which was obviously done without the approval or knowledge of the
Management. It was also stated that no opportunity was granted to the College
before the amount was sought to be recovered. Since the College is run by a
Trust, it will be impossible for them to pay the amount as demanded by the
University. Further, since the criminal case is subjudice, they should not be
asked to pay any amount without fixing the responsibility on the persons
concerned.
11. Learned counsel for the petitioner filed a written submission
raising the contention that no notice was given to the Management and hence no
liability can be fixed on the Management. In this context, learned counsel
relied upon the judgment of this Court reported in 1996 (1) M.L.J. 17 [Arumugam
Pillai Seethai Ammal College v. The Registrar, Madurai Kamaraj University].
The said judgment arose out of the context where the University has powers to
appoint an enquiry committee to go into the collection of capitation fee
received by a private Management. In that context, the Court held that the
Tmail Nadu Educational Institutions (Prohibition of Collection of Capitation
Fee) Act is a separate code in which University has not been given any role to
appoint an Enquiry Committee. Therefore, that case has no relevance to the
facts of the present case. The present case relates to the petitioner
Management violating the conditions of affiliation as its staff were responsible
for leaking out the question papers and the credibility of the University was in
question.
12. The other argument that no notice was given to the Management does
not merit any appeal because the Principal, being the Chief Superintendent
appointed by the College, was fully heard and his written statement was also
accepted and therefore, there was no question of giving a separate notice to the
Management. In fact, thanks to the orders of this Court, the petitioner
College continues to be a recognised examination centre of the University.
13. The respondent University has filed a typed set of papers containing
the report of the three Members Committee, which visited the College, as well as
the decision of the Conveners Committee. It also enclosed the statement of
the Principal of petitioner’s College dated 23.6.2004 blaming the non-teaching
staff for the leakage. It was on the basis of these materials, the Syndicate
of the University arrived at this decision and the due communication was sent to
the Management.
14. So far as the petitioner Management is concerned, it has got no
explanation to offer with reference to the leakage of question papers, which had
seriously undermined the prestige of the University in conducting the
examinations and it had demoralized thousands of examinees, who were to take the
examinations.
15. In the present case, the demand is neither a fine amount nor a
penalty but only the recovery charges for the service rendered by the
University. If the University had not taken the responsibility of conducting
the examination in the petitioner College, then the examination centre would
have been shifted, and that would have resulted in further hardship to the
innocent students. Therefore, the University acted wisely in changing the
Chief Superintendent, which is a prerogative power of the University. The
University had also took the responsibility of conducting the examination in
the very same Centre in the interest of the student community at large. If
on that count, the University had incurred expenditure, logically, the liability
of the same had to be met by the petitioner College.
16. The contention of the Management that they were not responsible for
the happenings in the College and, therefore, they should not be mulcted with a
liability, cannot be accepted. By the advent of the Private Colleges Act
(Tamil Nadu Act 19 of 1976), the Management of the College alone is entitled to
maintain the property of the College and with reference to the administration of
a minority College the appointment of teachers and taking disciplinary action,
the power vests with the College management. Apart from the overall
administration of the College, being vested with the College management, the
Principal of the College has been made solely responsible for the internal
administration of the College including conducting of classes, admission of
students and taking disciplinary action against students as well as the conduct
of examinations. It has been further provided that the
Secretary/Correspondent of the College can not interfered with the internal
administration of the College which is the sole prerogative is of the Principal.
The petitioner College though a minority College and they are bound by the
provisions of the Private Colleges Act and the Rules made thereunder except
where the Act itself exempts them from certain provision.
17. With reference to the concept of vicarious liability, the learned
counsel relied upon the judgment of the Supreme Court reported in AIR 1978 SC
1263 [State Bank of India v. Smt.Shyama Devi]. There, it was held that
misappropriation of the Bank employee without depositing the cheque given by a
customer thereby resulting in a loss to the respondent cannot be said to have
been committed in the course of employment with the Bank. In fact, in
paragraph 41 of the said Judgment, the Supreme Court noted that the fact of the
person being an employee of the Bank and a friend of one Bhagwati Prasad, gave
him the opportunity of committing the fraud. It is not known as to how this
judgment is helpful to the case of the petitioner.
18. On the contrary, in the present case, it is not a claim for damages
by the University but it is only an additional fee collected by them on account
of the unnecessary expenditure involved by continuing to maintain the
Examination Centre in the College. The petitioner, though a minority
institution,
does not clothe them with the right to mismanage. Article 30(1) of the
Constitution of India protects right to establish and administer an institution
of its own choice. But this right to administer does not carry with the right
to maladminister. In the conduct of a public examination, a private College has
no role and it is the function of the University. In that context, the staff of
the College including the Principal become agents of the University and are
subjected to act under the directives of the University. It is wrong on the
part of the petitioner to invoke the protection under Article 30(1) of the
Constitution and to contend that the minority right has been violated.
19. In the light of the aforesaid provisions, if the Principal was held
to be either irresponsible or lacked in capacity to supervise the staff-in-
charge of the conduct of University Examination, undoubtedly, the liability
vests on all concerned including the College Management. The Correspondent /
Secretary of the College cannot plead either
helplessness or lack of liability for any damage or loss caused by its own
servants. The petitioner was not able to advance any proposition of law to
disown their liability and making good the loss sustained due to the conduct of
the staff employed by the College. The Secretary of the College cannot feign
ignorance over the happenings inside the College as the incident had been widely
published in the news paper. The college should have taken appropriate
disciplinary action against the staff concerned including the Principal if any
lapse on his part. But for the timely action of the University, the students
would have been put into a greater peril of writing examinations from other
centres.
20.Under these circumstances, this Court finds no illegality or infirmity
in the order passed by the University and the writ petition deserves to be
dismissed. Accordingly, the same is dismissed. Since the petitioner
College, by the interim order of this Court, paid only Rs.50,000/-, they are
irected to pay the balance amount within a period of three weeks from the date
of receipt of a copy of this order. However, there will be no order as to
costs. Consequently, connected Miscellaneous Petitions are closed.
gri
To
Registrar
Madurai Kamaraj University
Madurai Palgalai Nagar
Madurai