ORDER
B.J. Shethna, J.
1. As per the present roster, this Court is assigned with admissions, orders and hearing of misc. writ petitions by or against local bodies. Revenue Board and Educational Institutions. Accordingly, writ petition No. 1546/97 was placed at serial No. 24 on today’s cause list. When the aforesaid writ petition was called out in the morning, learned counsel Shri Vyas for the respondent University pointed out that as per the earlier order of this Court (Dr. B.S. Chauhan, J.) dt. 18-5-1999, this petition was required to be heard along with three other revision petitions Nos. 823/96, 416/ 97 and 1029/97. Accordingly, all the three revision petitions were ordered to be listed at 2.00 p.m. along with the writ petition. And, accordingly, the writ petition and all the three revision petitions were heard at 2.00 p.m. and disposed of by this common order as the parties are same and result of main writ petition will decide the fate of three other revision petitions also.
2. David and Golia’s story is always repeated. The petitioner-student is fighting his battle against mighty respondent –Mohanlal Sukhadia University Udalpur. Few facts are to be stated in nutshell, which are as under :–
3. The petitioner was a student of 1st year LL.B. The University had issued the admission cards to the college, hut the petitioner was not given admission card by the college on the ground that he was short of 66% attendance. Thereby, he was prevented from appearing in LL.B. 1st year examination to be held on 18-7-1996. He approached the college authorities to issue admission card and allow him to appear in the examination, but he was not allowed. Therefore, he filed a suit before the competent authority on that very day i.e. 18-7-1996. On 19-7-1996, Civil Court by its interim order permitted him to appear only in one paper of LL.B. 1st year examination to be held on 25-
7-1996. Thereafter, by further interim order he was allowed to appear in one more paper. However, after by-parte hearing, the trial Court rejected the temporary injunction application filed in the suit. Aggrieved of that order the petitioner filed misc. appeal before the District Court which was transferred by learned District Judge to the Court of Civil Judge (Sr. Div.) Sirohi, which was allowed on 22-8-1996 and the petitioner was permitted to appear in remaining one paper on 23- 8-1996 of LL.B. 1st Year examination. At this stage, it can be stated that during the pendency of the appeal by an interim orders passed on 8-8-1996 and 16-8-1996, the appellate Court allowed the petitioner to appear in two more papers. Thus, on 23-8-1996 the petitioner appeared in all the papers of LL.B. 1st year examination except one paper of which examination was held on 18-7-1996 in which he could not appear because of the admission card.
4. At this stage, it may be stated that the University challenged the order passed by the Civil Judge (Sr. Div.) Sirohi on 22-8-1996 passed in appeal filed by the petitioner before this Court by way of revision petition being S.B, Civil Revision Petition No. 823/ 96. On 23-8-1996 when the petitioner was giving the examination of last paper of 1st year LL.B. Examination the Supervisor found a piece of paper (Annexure 1) from him. The said paper consists of authorities and some numbers only. When his explanation was asked for on the spot by the Supervisor, he clearly stated that the said paper had nothing to do with the paper of Legal and Constitutional History of India. He also stated that the said piece of paper remained with him by mistake. Annexure 2 is a report of vigilance Committee dated 23-8-1996, where, also the petitioner’s explanation is almost the same which is at running page 26 of the writ petition. At this stage, one. more fact is required to be stated namely that F.I.R. (Annexure 4) was filed for the said incident by the college against the petitioner with the Police, wherein, after thorough investigation the Police filed Final Report (F.R.) in favour of the petitioner. However, none else but the Principal of the College lodged protest petition before the criminal Court which was rejected on 6-2-1997 by C.J.M. Sirohi, against which revision petition was filed before this Court which was coincidentally heard and decided by me on 13-8-1997. After hearing learned counsel for the parties the said revision petition was rejected as per the order at Annexure 12.
5. Meanwhile, the petitioner was served with a show cause notice dated 28-1-1997 from the respondent University calling upon him to show cause as to why his present examination (LL.B. 1st Year) be cancelled and he should not be further debarred from one subsequent examination. It is interesting to note that in the said notice it has been only mentioned that one hand written paper was found from him during the examination by the Supervisor. Nowhere in the show cause notice it has been mentioned that the said paper was either used or it was to be used by the petitioner for unfair means or it has any relevance with the paper of that subject. The petitioner gave his detailed reply (Annex. 8) dated 8-2-1997 along with the affidavit of the advocate Shri Amrit Lal Shah. In reply also he has contended that the piece of paper which was found from him has no relevance to the examination or Legal and Constitutional History of India. He also demanded the copies of statements of Flying Squad members, report of the Superintendent and also report of invigilator made against him. However, the same were not supplied to him and straightway by a common order dated 3-3-1997 the petitioner is punished with cancellation of present examination (LL.B. 1st year) and further debarred him from one subsequent examination, with other students, were also punished. Aggrieved by that order at Annexure 10 the petitioner has filed this writ petition on 9-4-1997 before this Court:
6. At this stage, it is required to be stated that the petitioner moved the learned Civil Judge (Jr. Div.) Sirohi in a suit with an application to permit him to appear in IInd Year LL.B. examination along with one paper of LL.B. 1st Year examination which was left out because of admission card not given to him by the college. The learned trial Judge by his order dated 7-4-1997 permitted the petitioner to appear in IInd year LL.B. Examination along with one paper of LL.B. 1st Year examination. That order has also been challenged by the University in S.B. Civil Revision Petition No. 416/97.
7. At this stage, one more fact is required to be stated that the Civil Court modified its earlier order on 27-2-1997 declaring the result of the petitioner of LL.B. 1st year examination. The said order has also been challenged by the University in a S.B. Civil Revision Petition No. 1029/97.
8. Initially, the petitioner was prevented from appearing in LL.B. 1st year examination commencing from 18-7-1996 by the college on the ground that the petitioner was short of 66% attendance, therefore, the petitioner was compelled to file a suit before the Civil Court, wherein, he obtained interim order as stated earlier. Coincidentally. the Supervisor found a piece of paper from the petitioner in the last paper of LL.B. 1st Year Examination on 23-8-1996. The University proceeded against the petitioner by way of departmental action and after issuing the show cause notice to him cancelled his result of LL.B. 1st Year examination and also debarred him from one subsequent examination. Thus, the question of not permitting the petitioner to appear in LL.B. 1st year examination by the college on the ground of short of 66% attendance loses all its significance and the suit filed by the petitioner has become infructuous .
9. Now, the controversy is about the impugned show cause notice at Annexure 7 and the subsequent punishment order at Annexure 10 passed by the University.
10. Learned counsel Shri Lodha for to petitioner raised the following submissions, (i) that the respondent University miserably failed to prove that the petitioner was guilty of unfair means during the examination, (ii) the show cause notice Annexure 7 does not show that any unfair means was used by the petitioner during the examination on 23-8-1996, (iii) the impugned punishment order at Annexure 10 passed against the petitioner is without application of mind in the sense that there is no reference in the order to the reply to the show cause notice submitted by the petitioner, (iv) the impugned order is a non-speaking order, and (v) that the petitioner has been denied reasonable opportunity to defend him in the enquiry as copies of the statement of flying squad members, report of Superintendent and report of Invigilator, used against the petitioner, were not supplied to him though demanded. Similarly, finding arrived at by the examination committee was not supplied to the petitioner. Lastly, it was submitted that before passing the impugned order no personal hearing was given to the petitioner, therefore, the impugned order at Annexure 10 is in clear violation of principles of natural justice.
11. However, learned counsel Shri Yyas for the respondent University vehemently submitted that once the University has come to the conclusion that the petitioner student has indulged in the use of unfair means during the examination and if the University has passed the punishment order of debarring him from the present examination as well as one subsequent examination then this Court should not interfere with such decision in its extraordinary Jurisdiction under Article 226 of the Constitution of India. According to Mr. Yvas this Court cannot sit in appeal over the decision arrived at by the University in such domestic inquiry. Mr. Vyas further submitted that finding of paper during the examination from the student is sufficient to punish him because several authorities were noted on it. Lastly, it was submitted by Mr. Yvas that in educational field this Court should be, slow in interfering particularly when the student is caught while using unfair means in Exams.
12. The submission of Mr. Vyas for the respondent University that this Court cannot sit in appeal over the decision of the University in its extraordinary jurisdiction under Article 226 of the Constitution has no substance. There was no material on record to show that the piece of paper found from the student had any relevance with examination’s paper. The instant case is a case of “no evidence”. As stated earlier, the University has miserably failed to prove any use of unfair means by the petitioner during the examination.
13. The entire controversy centres around the piece of paper which was found from the petitioner at the time of examination on 23-8-1996 which is at Annexure 1. It is pertinent to note that when the University issued the show cause notice (Annexure 7) nowhere it has been mentioned in it that the petitioner used unfair means. Mere finding of a hand written paper from the student having some authorities noted on it in the examination cannot be said to be unfair means. Firstly, the University has to establish the nexus or any relevance between the piece of paper and the paper in which the petitioner was giving examination.
14. The impugned order at Annexure 10 is complete a non-speaking order. It has not dealt with any contentions raised by the petitioner in his reply to the show cause notice. It nowhere stated that the petitioner was found using the unfair means at the time of examination. When called upon, even Mr. Vyas was unable to point out that what was the nexus. Except, submitting that several authorities have been written on the piece of paper he could not submit anything more. From Annexure 1 it appears that several authorities are written and some figures are also there. However, the burden is heavily upcn the University to prove the misconduct or the unfair means of the student during examination. If the burden is not discharged by the University and if it does not arrive at a positive finding that student had in fact used unfair means in the examination then the University cannot punish a student.
15. Under the circumstances, there is no option for this Court but to interfere with the impugned order at Annexure 10 passed qua the petitioner of debarring him from the present examination (LL.B. 1st Year Examination) and from one subsequent examination.
16. I may say that this petition was required to be allowed also on the ground that before passing the impugned order at Annexure 10 the petitioner was not given sufficient opportunity to defend himself in the departmental proceedings. The University cannot unilaterally use the statements of flying squad members, report of Superintendent and report of Invigilator against the petitioner. One must be given a fair opportunity to meet with the same, therefore, on the ground of violation of principle of natural justice also the impugned penalty order at Annexure is required to be quashed and set aside.
17. Before parting, I must state that the petitioner had moved an amendment application praying that not only the impugned order dated 3-3-1997 (Annexure 10) be quashed but respondents be directed to declare the result of the petitioner for LL.B. 1st Year Examination held in 1996. IInd Year LL.B. examination held in 1997 and IIIrd year LL.B. Examination held in 1998 and to issue the degree if the petitioner is successful in the examination. Detailed reply affidavit is also filed to the amendment application and amended writ petition is also there on the record. Thus, the amendment application to amend main writ petition stood already granted by this Court (Dr. B.S. Chauhan. J.) on 6-5-1999.
18. In view of the above discussion, this writ petition is allowed. The impugned order at Annexure 3-3-1997 (Annexure 10) qua the petitioner is hereby quashed and set aside. Under the interim orders of civil Court the petitioner was allowed to appear in the IInd year LL.B. Examination as well as IIIrd Year LL.B. Examination, therefore, the respondent University is directed to declare the result of the petitioner Avinash Shanna of 1st year LL.B. Examination held in 1996. IInd year LL.B. Examination held in 1997 and IIIrd year LL.B. Examination held in 1998, forthwith. If he has passed the examinations then the degree be issued to him forthwith.
19. Once the writ petition No. 1546/97 stands allowed then all the revision petitions Nos. 823/96, 416/97 and 1029/97 filed by the University before this Court will have to be dismissed and accordingly the same are dismissed. There shall be no order as to costs in any of the matters.