{"id":243654,"date":"2008-10-16T00:00:00","date_gmt":"2008-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajnish-vs-the-on-16-october-2008"},"modified":"2015-04-27T00:04:17","modified_gmt":"2015-04-26T18:34:17","slug":"rajnish-vs-the-on-16-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajnish-vs-the-on-16-october-2008","title":{"rendered":"Rajnish vs The on 16 October, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Rajnish vs The on 16 October, 2008<\/div>\n
Bench: Jayant Patel<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nSCA\/8693\/2008\t 64\/ 64\tJUDGMENT \n \n \n\n\t\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8693 of 2008\n \n\nwith\n \n\nCIVIL\nAPPLICATION No.11120 of 2008 \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nRAJNISH\nKUMAR RAI - Petitioner(s)\n \n\n \n\n\n \n\nVersus\n \n\n \n\n\n \n\nTHE\nGUJARAT UNIVERSITY & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n:\n \n\n \nMR\nHARIN P RAVAL for\nPetitioner(s) : 1, \nRULE SERVED BY DS for Respondent(s) : 1, 3, \nMR\nSN SHELAT, Ld. Sr. Counsel WITH MRS VD NANAVATI for Respondent(s) :\n1, \nMR KAMAL TRIVEDI, Ld. ADV. GENERAL WITH MS SK VISHEN for\nRespondent(s) : 2,\n \n\nMR UMANG\nOZA, AGP FOR RESPONDENT NO.3.\n \n\n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 16\/10\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
The
\n\tshort facts of the case appears to be that the petitioner, though an
\n\tIPS Officer, in capacity as a student of LL.B., appeared for the
\n\texaminations of the Second Semester of 1st LL.B.  On
\n\t25.4.2008, there was paper of Banking and Negotiable Instruments
\n\tAct.  The timings were from 10.30 a.m., to 1.30 p.m.  As per the
\n\tpetitioner, one lady observer had accosted another girl student in
\n\tthe class-room and started addressing to such girl student in loud
\n\tvoice.  At that stage, the petitioner requested the lady Supervisor
\n\tto speak softly as he was being disturbed.  The said lady Observer
\n\tcame to the desk of the petitioner after few minutes and started
\n\texamining the petitioner’s belongings.  She opened pencil box and
\n\ttook out 6 inch long foot-ruler (scale) from the said box.  As per
\n\tthe petitioner, the said foot-ruler belonged to his six-and-a-half
\n\tyear old son and the petitioner, with a view to make use of the
\n\tfoot-ruler at the time of preparing tables in the examination, had
\n\tcarried the same.  The lady Supervisor as per the petitioner raised
\n\tthe objection that something was inscribed on the foot-ruler, which
\n\tthe petitioner stated, might have been written by his 6 \u00bd old
\n\tson.  In spite of his explanation, the petitioner was prohibited for
\n\thalf-a-hour to write the answer-book.  It appears that there was no
\n\treporting of such incident before the University, but as the
\n\taforesaid incident was reported in press, the University called upon
\n\tthe Supervisor and the other officer to submit the report.  Based
\n\tthereon, on 26.4.2008 the Sr. Supervisor of the University, Shri
\n\tR.Y. Mankad gave a report to the Director of Examinations, copy
\n\twhereof is produced on page 163 and in the said report he has
\n\tnarrated the incident happened during the supervision on 25.4.2008
\n\tin the Examination Centre of Siddharth Law College at Gandhinagar.
\n\tThe other aspects may not be relevant, but in the said report he has
\n\treferred to the information provided to him by Prajapati and the
\n\tobserver, which has been reproduced in quotes, English meaning
\n\tthereof can be extracted as under:-\n<\/p>\n
 When
\n\tI was checking in the block, at that time, the said officer informed
\n\tme that I am being disturbed and the class is being disturbed.  At
\n\tthat time, the lady informed him that I am observer and I am
\n\tdischarging my duty.  The officer also informed her that I am a
\n\tresponsible officer and I am also IPS responsible officer.
\n\tTherefore, I undertook the checking of the compass box and the
\n\taforesaid literature of the examination was found .\n<\/p>\n
In
\n\tthe earlier portion of the report, there is reference that one
\n\tMr.Prajapati informed him (Shri Mankad) that the observer is calling
\n\thim and observer informed him that one student had brought
\n\tliterature of the examination in the examination hall and it was
\n\tfound during the checking and the said writing was over small
\n\tplastic foot-ruler and 5 to 6 points were there of the examination
\n\tpaper of the same day.  It further appears that the observer also
\n\tgave statement, in which she first referred to the checking of the
\n\tcompass box and thereafter referred to the talk by her with the
\n\tpetitioner about getting disturbance and the discharge of the duty.
\n\tShe also stated that as and when the University calls her for
\n\tfurther inquiry she shall remain present.  The pertinent aspect is
\n\tthat in the said statement of Rajeshree H. Mengar, random checking
\n\tand the talk for disturbance is referred to during the period of 3
\n\tO’clock to 6 O’clock in the evening and the random checking, which
\n\tshe had referred to is of 4.30 p.m., whereas for the inspection in
\n\tthe first session, the time shown is at 11.30 a.m., of the random
\n\tchecking.  It also appears that the report was submitted on
\n\t26.4.2008 by Incharge Principle, Ms.Meenakshi Darekhan, in which it
\n\thas been stated that the student was one of the two girls and there
\n\twas doubt that something was written and, therefore, the paper was
\n\ttaken away by him and it was instructed to give him after
\n\thalf-an-hour.  The foot-ruler was of a small size of 6 inch and a
\n\tthin chit, which can be removed was affixed on the same, over which
\n\tit was appearing that some points were written, which was seen by
\n\ther and observer.  Thereafter on the spot the same was torn off and
\n\tthe foot-ruler was broken and was thrown away in the dustbin.  She
\n\thas referred to the seat numbers of three students, which included
\n\tthe seat number of the petitioner.  It also appears that the
\n\tstatement of Mr.D.D.Prajapati, who was Jr. Supervisor was also
\n\trecorded in which there was reference to the foot-ruler with writing
\n\tfound from one student, who was permitted to write the answer paper
\n\tafter half-an-hour.\n<\/p>\n
It
\n\tappears that thereafter the University based on the aforesaid report
\n\tand the statement proceeded to initiate action against the
\n\tpetitioner by issuing notice and the petitioner had appeared in
\n\tresponse thereto and had asked for certain documents, which as per
\n\tthe petitioner, were not supplied and the petitioner apprehended
\n\tthat the inquiry may be hushed up. At that stage, the petitioner
\n\tpreferred Special Civil Application No.7292 of 2008.  This Court in
\n\tthe said proceedings passed the following order:-\n<\/p>\n
The
\n\tpetitioner has preferred the petition for appropriate writ to hold
\n\tand declare that the action of the respondents herein in proceeding
\n\tto inquiry into the allegations against the petitioner without
\n\tsupplying necessary documents be declared as unlawful and highhanded
\n\tor arbitrary.\n<\/p>\n
When
\n\tthe matter is taken up for hearing, Mr.Shelat, learned counsel for
\n\tMrs.Nanavati, learned counsel appearing for the University declared
\n\tbefore the Court as under:\n<\/p>\n
The
\n\tUniversity will issue an additional notice containing the details,
\n\tthe material which is to be used against the petitioner in the
\n\tinquiry in question.\n<\/p>\n
The
\n\tpunishment which is proposed to be imposed upon the petitioner shall
\n\talso be stated in the said notice.\n<\/p>\n
The
\n\tmaterial which may be referred to in the next notice and to be used
\n\tagainst the petitioner shall also be supplied to the petitioner.\n<\/p>\n
After
\n\tthe aforesaid details are supplied to the petitioner, opportunity of
\n\thearing shall be given and thereafter, appropriate decision shall be
\n\ttaken.\n<\/p>\n
In
\n\tthe above view of the matter, Mr.Raval, learned counsel for the
\n\tpetitioner does not press the petition at this stage. Permission
\n\tgranted. Disposed of as withdrawn.\n<\/p>\n
Thereafter,
\n\tthe show-cause notice has been issued and the petitioner submitted
\n\treply. There are various, inter se, disputes between the petitioner
\n\tand the University on the aspects as to whether all documents were
\n\tsupplied to the petitioner or not and as per the petitioner,
\n\topportunity for cross-examination of the witnesses was expressly
\n\tdemanded.  However, conduct committee, which is known as ‘Suddhi
\n\tSamithi’ called the petitioner for personal explanation and the
\n\thearing and ultimately the committee took the decision, whereby it
\n\tfound that the misconduct was committed and the punishment
\n\trecommended was for cancellation of the result and be declared
\n\tfailed.  The said declaration of Suddhi Samithi has been considered
\n\tby the body of the University on 10.6.2008 and after deliberations
\n\tamongst various members of the Executive Council, it was decided by
\n\tthe majority that there was no question of giving any
\n\tcross-examination, since such permission for cross-examination is
\n\tnever granted to any student in the history of the University and it
\n\twas also observed that if such permission was granted considering
\n\tthe status of the petitioner, contradictions may arise in the
\n\tstatements of the witnesses.  Thereafter the majority resolved for
\n\tgoing by the recommendations of the Suddhi Samithi for imposition of
\n\tthe punishment.  It is under these circumstances the present
\n\tpetition before this Court by the petitioner herein.\n<\/p>\n
As
\n\tper the petitioner, he is a very upright, honest, sincere and strict
\n\tIPS Officer and while on duty he has conducted large number of
\n\timportant and sensitive cases, wherein high dignitaries and high
\n\tofficials were arrested\/interrogated, whose details are given by him
\n\ton pages 6 and 7 of the memo of the petition.  It is the case of the
\n\tUniversity that all such things, even if they were, are irrelevant.
\n\tHowever, as per the petitioner, he is having a bright educational
\n\tcareer and there is no reason for him to indulge into alleged
\n\tmisconduct.  As per the petitioner, as he is having reputed good
\n\tservice record, the finding of misconduct and\/or the punishment on
\n\tsuch ground would tarnish his image as IPS officer, whereas as per
\n\tthe University all such aspects are irrelevant since the capacity of
\n\tthe petitioner is as student of LL.B., only.\n<\/p>\n
Heard
\n\tMr.Raval, learned Counsel appearing for the petitioner, Mr.S.N.
\n\tShelat, learned Counsel with Mrs.Nanavati for the University,
\n\tMr.Kamal Trivedi, learned Advocate General for Vice Chancellor of
\n\tthe University and Mr.Umang Oza, learned AGP for the State
\n\tGovernment at length.\n<\/p>\n
In
\n\torder to examine the factual controversy, reference to certain legal
\n\tposition, which may have bearing to the scope of the judicial
\n\tscrutiny by this Court in a petition under Article 226 of the
\n\tConstitution of India may be relevant.  It can hardly be disputed
\n\tthat the proceedings of the action to be taken by the Suddhi Samithi
\n\tor the University, as the case may be, are at par with the domestic
\n\tTribunal and, therefore, the principles of natural justice  as it
\n\tmay require considering the facts and circumstances of each case
\n\twould, in any case, be required to be followed by such domestic
\n\tTribunal.  It is by now well settled that observance of principles
\n\tof natural justice cannot be applied like an absolute
\n\tstraight-jacket formula, but its scope and ambit may vary from case
\n\tto case.  But in all cases the crucial test for extending the scope
\n\tand ambit of the observance of principles of natural justice would
\n\tbe as to whether giving of such an opportunity would have enabled
\n\tthe Tribunal to have a fair and a detailed scrutiny of the matter or
\n\tnot.  It can hardly be disputed that imposition of the penalty  by
\n\tSuddhi Samithi or the University, as the case may be, is by way of
\n\tpenal action upon the student concerned.  Therefore, when the penal
\n\taction is to be taken by such domestic Tribunal like that of Suddhi
\n\tSamithi or the University, as the case may be, it would be required
\n\tfor such domestic Tribunal to follow the principles of natural
\n\tjustice against the person or the student, as the case may be, who
\n\tis to face the ultimate decision, may be of punishment or no
\n\tpunishment.  On the aspects of applicability of principles of
\n\tnatural justice to such proceedings as it exists in the present
\n\tcase, for consideration by this Court, there is no dispute,
\n\ttherefore, no more discussion may be required on the said aspect.
\n\tHowever, in cases where there is non-observance of principles of
\n\tnatural justice and a complaint is brought to this Court in a
\n\tpetition under Article 226 of the Constitution of India, law has
\n\tdeveloped further and the same is that unless the prejudice is
\n\tdemonstrated to the satisfaction of the Court, this Court may
\n\tdecline the entertainment of the complaint for non-observance of the
\n\tprinciples of natural justice.\n<\/p>\n
The
\n\tattempt on the part of the learned Counsel for the respondent
\n\tUniversity was to rely upon the decision of this Court in the case
\n\tof  Upadhyaya Sharad Pravinchandra v. The Gujarat University,
\n\tAhmedabad<\/a>  decided on 17.8.1978 (in Special Civil
\n\tApplication No.1097 of 1978 and allied matters) to contend that
\n\tthe cross-examination should not be permitted in the educational
\n\tmatter, where domestic Tribunal has to decide the question.  But the
\n\tpertinent aspect is that in the very decision, the Division Bench of
\n\tthis Court did observe as under:-\n<\/p>\n
 Now,
\n\tthere is no invariable rule of natural justice, which requires that
\n\tthe cross examination of the persons whose statements have been
\n\trecorded and relied upon  must be given.  The rules of natural
\n\tjustice require that a party against whom an allegation is made
\n\tshould be given a hearing.  Right of hearing does not include the
\n\tright to cross examine.   Whether to permit cross examination in
\n\teach case must depend upon the facts and circumstances of the case.\n<\/p>\n
Thereafter,
\n\tthe facts of those cases were examined by the Division Bench and it
\n\twas found that the cross-examination was not necessary.\n<\/p>\n
This
\n\tCourt in another unreported decision in Special Civil Application
\n\tNo.357 of 1975 decided on 10.4.1975 did observe that the
\n\tobservance of the principles of natural justice in their strict form
\n\tmay destroy the very purpose and may be more damage than their
\n\tnon-observance would do, but in that decision also, the Court
\n\treiterated that the principles of natural justice are flexible and
\n\ttheir applicability would differ in different circumstances.  This
\n\tCourt, having found the misconduct was committed, did not upset the
\n\tdecision on the ground of breach of the principles of natural
\n\tjustice.  In the decision of the High Court of Jammu and Kashmir in
\n\tthe case of Mohinder Singh Jamwal v. University of Jammu and
\n\tOrs., reported in 1984 (J.K.), 40, it was, inter alia, found at
\n\tpara 10 that the question of violation of natural justice  comes up
\n\twhen something is done against a person to his detriment, without
\n\thearing him and such was not the case found by the High Court of
\n\tJammu and Kashmir, but in the said decision also, no departure is
\n\tmade from the observance of the principles of natural justice and
\n\tconsidering the facts of that case, the High Court found that there
\n\twas observance of principles of natural justice and, therefore,
\n\tfurther opportunity was not required.\n<\/p>\n
This
\n\tCourt in the case of Hindustan Finstock Limited v. Securities and
\n\tExchange Board of India,<\/a> reported in 2002(3) GLR, 2565,
\n\tdid observe, inter alia, at para 12 as under:-\n<\/p>\n
         12. If the credibility of a person who has testified or
\n\t given some information is in  doubt,  or  if
\n       the  version  or  the  statement  of  the  person who has
\n       testified is in dispute, right of  crossexamination  must
\n       inevitably form part of play in action but where there is
\n       no lis regarding the facts but certain explanation of the
\n       circumstances,     there    is    no    requirement    of
\n       crossexamination to be fulfilled to justify fair play  in
\n       action.   When  on  the  question  of  facts there was no
\n      dispute, that no real prejudice  has  been  caused  to  a
\n      party  aggrieved  by  an  order, by absence of any formal
\n      opportunity  of  crossexamination   per   se   does   not
\n      invalidate  or  vitiate  the  decision  aggrieved at fair
\n      play.  (Emphasis supplied)<\/p>\n
\tAfter
\n\tobserving above, this Court further found, in the facts of that
\n\tcase, that it was not required for SEBI to permit cross-examination
\n\twhile observing the principles of natural justice.  In the very
\n\tdecision, on the aspects of entertaining the complaint of breach of
\n\tprinciples of natural justice, it was, inter alia, observed at para
\n\t13 as under:-\n<\/p>\n
        13.\t… Therefore, ultimate analysis  of  various  case
\n\tlaws comes to conclusion that the court may strike down the \taction of the authority  if taken  in breach of principles of \tnatural justice only if the prejudice is shown or proved and  \tthe  action  is  in breach of principles of natural justice.\n<\/p>\n
\tThereafter,
\n\tthe Court in the facts of that case, observed that no prejudice was
\n\tcaused and, therefore, mere denial of cross-examination could not be
\n\tsaid as prejudice caused in the facts of that case.\n<\/p>\n
\tThis
\n\tCourt in the case of Rajesh Chandulal Purohit v. Saurashtra
\n\tUniversity and Anr.,<\/a> reported in 1997(1) GLR, 317 did observe
\n\tthat if there is no notice\/no hearing or no  opportunity whatsoever,
\n\tit would be a void action for non-observance of principles of
\n\tnatural justice, but in a case where the hearing has been given, but
\n\talleged as not adequate, the question of prejudice may be required
\n\tto be examined and the action, pre se, would not be bad on the
\n\tground of breach of principles of natural justice.\n<\/p>\n
\tThe
\n\tApex Court, in case of Karnataka Public Service Commission and
\n\tOthers v. B.M. Vijaya Shankar and Ors,<\/a> reported in AIR 1992 SC, 952
\n\tdid observe, inter alia, at para 4 as under:-\n<\/p>\n
\t 4.\t…\n<\/p>\n
\t Natural justice is a concept which has succeeded in keeping the
\n\tarbitrary action within limits and preserving the rule of law. But
\n\twith all the religious rigidity with which it should be observed,
\n\tsince it is ultimately weighed in balance of fairness, the Courts
\n\thave been circumspect in extending it to situations where it would
\n\tcause more injustice than justice. Even though the procedure of
\n\taffording hearing is as important as decisions on merits yet urgency
\n\tof the matter, or public interest at times require flexibility in
\n\tapplication of the rule as the circumstances of the case and the
\n\tnature of the matter required to be dealt may serve interest of
\n\tjustice better by denying opportunity of hearing and permitting the
\n\tperson concerned to challenge the order itself on merits not for
\n\tlack of hearing to establish bona fide or innocence but for being
\n\totherwise arbitrary or against rules.  (Emphasis supplied)<\/p>\n
\tThereafter
\n\tin the facts of that case, it was also observed by the Apex Court in
\n\tthe said decision, inter alia, at para 5 as under:-\n<\/p>\n
\t 5.\t…\n<\/p>\n
\tThe Tribunal appears to have been swayed by principles applied by
\n\tthis Court where an examinee is found copying or using unfair means
\n\tin the examination. But in doing so the Tribunal ignored a vital
\n\tdistinction that there may be cases where the right of hearing may
\n\tbe excluded by the very nature of the power or absence of any
\n\texpectation that the hearing shall be afforded.   Rule of hearing
\n\thas been construed strictly in academic disciplines. It should be
\n\tconstrued more strictly in such cases where an examinee is competing
\n\tfor Civil Service post. The very nature of the competition requires
\n\tthat it should be fair, above board and must infuse confidence. If
\n\tthis is ignored then, as stated earlier, it is not only against
\n\tpublic interest but it also erodes the social sense of equality.
\n\t(Emphasis supplied) <\/p>\n
\tUltimately,
\n\tin the facts of that case, the Apex Court found that the Tribunal
\n\thad misdirected itself and, therefore, the order of the Tribunal
\n\tcould not be maintained.\n<\/p>\n
\tThe
\n\taforesaid goes to show that the observance of principles of natural
\n\tjustice before imposition of the penalty is a must by any domestic
\n\tTribunal like that of the University or the Suddhi Samithi, as the
\n\tcase may be. What shall be the scope and ambit of the observance of
\n\tthe principles of natural justice may vary from facts to facts.  If
\n\tit is found that there is variations in the statements of the
\n\twitnesses upon which the reliance is placed for initiating action or
\n\ta reasonable case based on probability may be on circumstantial
\n\tevidence or otherwise, cannot be gathered, it may require total
\n\tobservance of principles of natural justice, which may include
\n\tpermitting cross-examination of the witnesses, who made statement
\n\tor, who stated for explaining the circumstances or the material, as
\n\tthe case may be.  All such, in any case, may be required, if this
\n\tCourt, while entertaining the complaints of non-observance of
\n\tprinciples of natural justice, finds that prejudice is caused to the
\n\tperson concerned on account of no opportunity of cross-examination
\n\tof the witnesses and thereby to explore the truth.\n<\/p>\n
\tOn
\n\tthe aspects of attracting the power of the University for imposition
\n\tof the punishment, much grievance has been raised on behalf of the
\n\tpetitioner as well as by the University.  The attempt on the part of
\n\tthe learned Counsel for the petitioner was to contend that the
\n\tmaterial has to be relevant to the examination and the material
\n\twhich is not at all relevant to the subject of the examination
\n\tcannot be made as the basis for imposition of the punishment,
\n\twhereas on the behalf of the University, it was contended that once
\n\tany material is found, the punishment can be imposed.  In support of
\n\tthe said contention, the Counsel for the University relied upon the
\n\tinstructions in the question paper.  It was stated that instruction
\n\tNo.10 as under:-\n<\/p>\n
\t 10.\tExchange
\n\tof written materials, pencil or other instructions\/article is
\n\tprohibited.\n<\/p>\n
\tFurther
\n\tat item No.13, it was provided as under:-\n<\/p>\n
\t 13.
\n\tIf you are found in possession of written material in any form of
\n\tmobile phone of programmed calculator or found talking with other
\n\tcandidates or found in regular or caught absconding with written or
\n\tblank answer book, you will be immediately expelled and penal action
\n\twill be initiated after the matter is reported to the authorities.\n<\/p>\n
\tIt
\n\twas also submitted by the learned Counsel for the university that as
\n\tper the instructions being guidelines to the Suddhi Samithi, for
\n\timposition of penalty of cancellation of the result as failed plus
\n\tonly (A + O only) the same has been permitted if any of the
\n\tconditions from (a) to (d) are satisfied.  Condition No.(d) of such
\n\tguidelines was pressed in service, whose English translation can be
\n\tstated as under :-\n<\/p>\n
\t Small
\n\tchit, small writing on foot-ruler, writing on rubber, indication or
\n\tnumbers are found.\n<\/p>\n
\tIt
\n\twas, therefore, submitted that irrespective of the contents of the
\n\tmaterial once such materials are found, whether it has any relevance
\n\tto the subject of the examination or not, the punishment can be
\n\timposed.\n<\/p>\n
\tIt
\n\tis true that what shall be the discipline at the time of examination
\n\tare essentially to be left to the academicians for maintaining the
\n\tstandards at the examination.  However, as per the settled
\n\tprinciples of interpretation of statutes, it must be meaningful and
\n\tit must have nexus to the object to be achieved for maintaining the
\n\tstandard at the examination and any clause cannot be interpreted,
\n\twhich may result into creating absurdity.  If the condition is
\n\ttested either as prudence or as an academicians, such material must
\n\thave the relevance to the subject or the examination.  It is not
\n\tnecessary that the material must be relevant to the questions asked
\n\tin the examination, nor it is necessary to see that whether copied
\n\tor not but it must have direct or indirect nexus with the subject or
\n\tthe examination.  If the condition is read in absolute irrespective
\n\tof the contents of the material, it would result into creating an
\n\tabsurdity while enforcing the condition.  Suppose a blank chit is
\n\tfound or a writing of name is found on foot-ruler or writing of name
\n\tis found on rubber, such can by no stretch of imagination be the
\n\tbasis for imposing punishment on the ground of breach of the
\n\tdiscipline.  If the condition is to be interpreted with reasonable
\n\tprudence, keeping in view the object to be achieved, there cannot be
\n\tany inevitable conclusion that it must be related directly or
\n\tindirectly to the examination or its subject.  The condition as it
\n\tis not providing for the express language of ‘irrespective of any
\n\tcontents thereof’, nor does it provide expressly  that its contents
\n\t‘must relate to the subject or the examination’.  Therefore, it is
\n\tmore required for giving correct interpretation of the condition for
\n\tthe real effect, keeping in view the object to be achieved and to
\n\tavoid the creation of absurd situation on a non-germane
\n\tcircumstance.  Therefore, the only inevitable conclusion can be
\n\trecorded is that the material which is found in the examination must
\n\tdirectly or indirectly relate to the examination or the subject of
\n\tthe examination, then only it can be termed as an incriminating
\n\tmaterial or undesired material.\n<\/p>\n
\tIn
\n\tthe decision of this Court in case of Sardar Patel University v.
\n\tMinal R. Jogi and Anr.,<\/a> reported 2000(2) GLH, 199,  the
\n\tDivision Bench of this Court did record that
\n\tthe writing on the  ruler  pertain  to  the question  of  Impact of
\n\tsubsidies on fiscal management of economics and its relevance from
\n\tthe view point of global effectiveness.  At para 4, it was,
\n\tinter alia, observed as under:-\n<\/p>\n
\t 4.\t…So
\n\tfar as  the  departmental  inquiries  are concerned, there is no
\n\tquestion of strict burden of proof and  the  matter  is  to  be
\n\tdecided on the yard stick of preponderance of probability.  So far
\n\tas  the  misconduct committed  at the examination is concerned,
\n\tsometimes the burden would be not even to the extent of yard  stick
\n\tof preponderance of  probability  but  less than that.  Mere finding
\n\tof incriminating material is sufficient  to  hold the examinee
\n\tguilty of misconduct.  Whether incriminating material was intended
\n\tfor copying or was actually used or was  innocently  possessed  may
\n\tbe relevant for imposing punishment.  The body conducting the
\n\texamination  has  to point out  the  misconduct.  It is irrelevant
\n\twhether the student  has  used  the  material  for  the  purpose
\n\tof answering the  question or not.  It is not necessary that the
\n\tmaterial which was found from the student  must  have been  utilised
\n\tfor the purpose of answering the question. To hold the student
\n\tguilty of misconduct it is sufficient if the material is found from
\n\tthe student  pertaining to the subjects.\n<\/p>\n
\tThereafter,
\n\tit was found by the Court that the material was pertaining to the
\n\tsubject and, therefore, the misconduct was committed.  The pertinent
\n\taspect is that the principles of relevancy of the material to the
\n\tsubject of the examination is not departed from even the said
\n\tdecision.\n<\/p>\n
\tThe
\n\tApex Court in case of  Board of High School and Intermediate
\n\tEducation, U.P., Allahabadand Anr. v. Bagleshwar Prasad and Anr.<\/a> ,
\n\treported in AIR 1966 SC, 875, did inter alia observe at para 12
\n\tas under:-\n<\/p>\n
\t 12.\t…\n<\/p>\n
\tit is necessary to bear in mind that educational institutions like
\n\tthe Universities or appellant No.1 set up Enquiry Committees to deal
\n\twith the problem posed by the adoption of unfair means by
\n\tcandidates, and normally it is within the jurisdiction of such
\n\tdomestic Tribunals to decide all relevant questions in the light of
\n\tthe evidence adduced before them.  In the matter of adoption of
\n\tunfair means, direct evidence may sometimes be available, but cases
\n\tmay arise where direct evidence is not available and the question
\n\twill have to be considered in the light of probabilities and
\n\tcircumstantial evidence.  This problem which education institutions
\n\thave to face from time to time is a serious problem and unless there
\n\tis justification to do so, Courts should be slow to interfere with
\n\tthe decisions of domestic Tribunal appointed by educational bodies
\n\tlike the Universities.   In dealing with the validity of the
\n\timpugned orders passed by Universities under Art. 226, the High
\n\tCourt is not sitting in appeal over the decision in question; its
\n\tjurisdiction is limited and though it is true that if the impugned
\n\torder is not supported by any evidence at all, the High Court would
\n\tbe justified to quash that order.  But the conclusion that the
\n\timpugned order is not supported by any evidence must be reached
\n\tafter considering the question as to whether probabilities and
\n\tcircumstantial evidence do not justify the said conclusion.
\n\tEnquiries held by domestic Tribunals in such cases must, no doubt,
\n\tbe fair and students against whom charges are framed must be given
\n\tadequate opportunities to defend themselves, and in holding such
\n\tenquiries, the Tribunals must scrupulously follow rules of natural
\n\tjustice; but it would, we think, not be reasonable to import into
\n\tthese enquiries all considerations which govern criminal trials in
\n\tordinary Courts of law.\n<\/p>\n
\tThereafter,
\n\tthe Apex Court found in the facts of that case that the inquiry had
\n\tbeen fair and respondent was given opportunity of making his defence
\n\tand, therefore, the decision of the High Court for quashing the
\n\tdecision of the University was interfered with.\n<\/p>\n
\tThe
\n\tApex Court in case of Maharashtra State Board of Secondary and
\n\tHigher Secondary Education v. IRS Gandhi,<\/a> reported in AIR 1991(2)
\n\tSC, 716, has taken the same view of the Apex Court in its
\n\tearlier decision in the case of  Board of High School and
\n\tIntermediate Education, U.P., Allahabadand Anr.  (supra).\n<\/p>\n
\tIt
\n\twas further, inter alia, observed by the Apex Court at para 37 as
\n\tunder:-\n<\/p>\n
\t 37.\t…It
\n\tis open to the authorities to receive and place on record all the
\n\tnecessary, relevant, cogent and acceptable material facts though not
\n\tproved strictly in conformity with the Evidence Act.  The material
\n\tmust be germane and relevant to the facts in issue.  In grave cases
\n\tlike forgery, fraud, conspiracy, misappropriation, etc., seldom
\n\tdirect evidence would be available. Only the circumstantial evidence
\n\twould furnish the proof.   In our considered view inference from
\n\tthe evidence and circumstances must be carefully distinguished from
\n\tconjectures or speculation.  The mind is prone to take pleasure to
\n\tadapt circumstances to one another and even in straining them a
\n\tlittle to force them to form parts of one connected whole.  There
\n\tmust be evidence direct or circumstantial to deduce necessary
\n\tinferences in proof of the facts in issue.  There can be no
\n\tinferences unless there are objective facts, direct or
\n\tcircumstantial from which to infer the other fact which it is sought
\n\tto establish. In some cases the other facts can be inferred, as much
\n\tas is practical, as if they had been actually observed.  In other
\n\tcases the inferences do not go beyond reasonable probability.  If
\n\tthere are no positive proved facts, oral, documentary or
\n\tcircumstantial from which the inferences can be made the method of
\n\tinference fails and what is left is mere speculation  or conjecture.
\n\t Therefore, when an inference of proof that a fact in dispute has
\n\tbeen held established there must be some material facts or
\n\tcircumstances on record from which such an inference could be drawn.
\n\t  The standard of proof is not proof beyond reasonable doubt  but
\n\tthe preponderance of probabilities tending to draw an inference that
\n\tthe fact must be more probable.  Standard of proof cannot be put
\n\tin a strait-jacket formula.  No mathematical formula could be laid
\n\ton degree of proof.  The probative value could be gauged from facts
\n\tand circumstances in a given case.  The standard of proof is the
\n\tsame both in civil cases and domestic enquiries.  (Emphasis
\n\tsupplied)<\/p>\n
\tThereafter,
\n\tin the facts of that case, it was found by the Apex Court that the
\n\tevidence deduced by the Education Standing Committee to record the
\n\tfindings that at the best of either the examinee or the parent or
\n\tguardian is based on the evidence on record were part of fabrication
\n\tand, therefore, the order of  the High Court for quashing and
\n\tsetting aside the decision was interfered with.\n<\/p>\n
The
\n\tApex Court, in the case of  Central Board of Secondary
\n\tEducation v. Vineeta Mahajan<\/a> , reported in 1994 SC, 733,
\n\tinter alia, observed at para 5 as under:-\n<\/p>\n
\t  5.\t…The
\n\tRule clearly defines “the use of unfair means at the
\n\texamination” and lays down in simple language that a
\n\tcandidate having in possession, papers relevant to the examination
\n\tin the paper concerned, shall be deemed to have used unfair means at
\n\tthe examination.  The sine qua non, for the misconduct under the
\n\trule, is the recovery of the incriminating material from the
\n\tpossession of the candidate. Once the candidate is found to be
\n\tin possession of papers relevant to the examination, the requirement
\n\tof the Rule is satisfied and there is no escape from the conclusion
\n\tthat the candidate has used unfair means at the examination. The
\n\tRule does not make any distinction between bona fide or mala fide
\n\tpossession of the incriminating material.  (Emphasis supplied)<\/p>\n
\tThereafter,
\n\tthe Apex Court interfered with the decision of the High Court, which
\n\twas on the basis that the material was not used by the student, as
\n\twas an irrelevant consideration for examining the question of
\n\timposition of the penalty.\n<\/p>\n
In
\n\tlight of the aforesaid decisions, the legal position can be
\n\tsummarized as under:-\n<\/p>\n
(A)\tThe
\n\tpower for imposition of the penalty on account of the misconduct
\n\twith the domestic Tribunal like that of Suddhi Samiti or the
\n\tUniversity, as the case may be, are to be exercised after following
\n\tthe principles of natural justice.  However, the scope and ambit of
\n\tobservance of principles of natural justice may vary from facts to
\n\tfacts, depending upon each case.\n<\/p>\n
(B)\tIf
\n\tno notice has been given to the student concerned, the decision of
\n\tsuch Tribunal can be said as void.\n<\/p>\n
(C)\tIf
\n\tthe notice has been given to the student concerned to show cause and
\n\tthereafter reply is submitted and the action is taken, while
\n\texamining the question of the scope and ambit of the application of
\n\tthe principles of natural justice, this Court may consider the
\n\tquestion of prejudice caused to the student concerned, in case there
\n\tis any breach of such principles by the domestic Tribunal before
\n\ttaking any final decision.\n<\/p>\n
(D)\tThe
\n\tobservance of principles of natural justice and its scope and ambit,
\n\tthough may vary from facts to facts, but has to be on the basis of
\n\tfair play action and would depend upon the particular subject matter
\n\tof the case to be examined by the domestic Tribunal.\n<\/p>\n
(E)\tPermitting
\n\tcross-examination is not sine qua non
\n\tto the concept of fair play action in every case, but can be made
\n\tavailable if the facts and circumstances so demands of a particular
\n\tcase.\n<\/p>\n
\t(F)\tIf
\n\tthe credibility of any person, who has testified or given some
\n\tinformation, is in doubt or if the version or the statement of the
\n\tperson, who has testified is in dispute, the right of
\n\tcross-examination would inevitably form part of fair play inaction,
\n\tbut where there is  no lis  regarding the facts, but certain
\n\texplanation of the circumstances only, there is no requirement of
\n\tcross-examination to be fulfilled to justify fair play action.\n<\/p>\n
\t(G)\tWhere
\n\ton the facts there is no dispute that no real prejudice has been
\n\tcaused to any party by an order in absence of any formal opportunity
\n\tto cross-examination, per se, would not invalidate or vitiate the
\n\tdecision arrived at fair play.\n<\/p>\n
(H)\tThis
\n\tCourt may interfere in a petition under Article 226 of the
\n\tConstitution of India, if there is breach of the observance of the
\n\tprinciples of natural justice and thereby breach of fair play action
\n\ton the part of the authority while imposing punishment.\n<\/p>\n
(I)\tThis
\n\tCourt may quash the action of imposition of the punishment if such
\n\tan order is not supported by any evidence and while considering the
\n\tquestion of sufficiency of evidence, this Court may also consider as
\n\tto whether the probabilities and the circumstantial evidence do or
\n\tdo not justify the conclusion arrived at by such domestic Tribunal
\n\tor not.\n<\/p>\n
(J)\tIf
\n\tthe material relevant to the examination is found from the student
\n\tconcerned and there is an admission of the student for such purpose,
\n\tthe scope of the applicability of the principles of natural justice
\n\twould be narrow, but in a case where the existence of the material
\n\tor its relevancy is at serious doubt, the applicability of the
\n\tprinciples of natural justice and the fair play action may be wide,
\n\tbut of course subject to the facts and circumstances of each case.\n<\/p>\n
(K)\tThe
\n\tstandard of proof as envisaged in domestic Tribunal would be the
\n\tsame as that of civil case in domestic inquiries and not like the
\n\tstrict rules of Evidence Act to be observed at the time of trial in
\n\tthe criminal case.\n<\/p>\n
(L)\tThe
\n\tinference from the evidence and the circumstances must be carefully
\n\tdistinguished from conjectures and speculations.  The mind is prone
\n\tto take pleasure to adopt circumstances to one another and even in
\n\tstraining them a little to force them to form part of one connected
\n\tto all.  Therefore, there must be evidence direct or circumstantial
\n\tto deduce necessary inference in proof of the facts in issue.  There
\n\tcan be no inference unless there are objective facts direct or
\n\tcircumstantial form, which to infer the other facts, which it is
\n\tsought to establish.  In some cases, the other facts can be inferred
\n\tinasmuch as practical, as if they had been actually observed.  In
\n\tother cases, the inference do not go beyond reasonable probability.
\n\tIf there are no positive proved facts, oral, documentary or
\n\tcircumstantial, from which the inference can be made, the method of
\n\tinference fails and what is left is mere speculation or conjectures.
\n\t Therefore, when an inference of proof that a fact in dispute has
\n\tbeen established, there must be some material facts or circumstances
\n\ton record from which such inference can be drawn.\n<\/p>\n
(M)\tThe
\n\tmaterial found must have relevancy to the subject or the examination
\n\tirrespective of the fact that whether the material has been actually
\n\tused or not for attracting the power for imposition of punishment.
\n\tHowever, the actual use of such material at the examination would be
\n\trelevant at the time of proportionalities or quantum or gravity of
\n\tthe punishment\/s.\n<\/p>\n
(N)\tIf
\n\tcircumstantial evidences do not permit a conclusion on reasonable
\n\tprudence, more elaborate examination of facts may be required, but
\n\tthe gap cannot be filled up on speculation or conjectures.  However,
\n\tif the reasonable prudence permits drawing of inference, such
\n\telaborate examination may not be required.\n<\/p>\n
If
\n\tthe facts of the present case are examined in light of the aforesaid
\n\tlegal position, the factual situation appears to be as under:-\n<\/p>\n
(1)\tThe
\n\tpetitioner has appeared in the examination of LL.B.  At the time
\n\twhen the petitioner appeared at the examination, there was some
\n\taltercation of words between the petitioner and the observer, since
\n\the was being disturbed on account of the inquiry was being made by
\n\tthe observer with the other student.  The same tempted the observer
\n\tto examine the compass box of the petitioner.\n<\/p>\n
(2)\tAs
\n\tper the statement of the observer of the University, foot-ruler was
\n\tfound from the petitioner, over which there was writing of banking
\n\tsubjects.  The timing for inspection is shown as ‘at 11.30 a.m., and
\n\tthe observer had instructed to hand-over the foot-ruler to the
\n\tPrincipal.  In the same statement there is a reference to the random
\n\tchecking at 4.30 p.m., and at that time the talk for disturbance
\n\twith one student in one block with the observer.\n<\/p>\n
(3)\tThe
\n\tstatement of the Principal Smt. Meenakshi Darekhan refers to some
\n\twriting on foot-ruler, but does not speak for the contents of the
\n\twriting and further states that a removable chit was sticked\/affixed
\n\ton six-inch long foot-ruler and she stated that it was appearing
\n\tthat some points were written, which was seen by her and the
\n\tobserver.  There also, there is no reference to the contents of the
\n\twriting as to whether for the subject of banking or any other
\n\tsubject.  In the statement, it has been further stated that the chit
\n\twas torn off by her and the foot-ruler was broken by her and was
\n\tthrown in the waste box by her.\n<\/p>\n
(4)\tThe
\n\texistence of the material of foot-ruler or the chit on the
\n\tfoot-ruler as alleged were neither made available to the Shuddi
\n\tSamiti, nor any statement was recorded of the student concerned and
\n\tthe material was destroyed by the Principal of the College herself
\n\tin presence of the observer.\n<\/p>\n
(5)\tIn
\n\tthe statement of Jr. Supervisor, Shri D.D. Prajapti, there is a
\n\treference to the writing on foot-ruler found from one student, who
\n\twas permitted to right the answer paper after half-an-hour.\n<\/p>\n
(6)\tIn
\n\tthe statement of Sr. Supervisor, Shri R.Y. Mankad he refers to the
\n\treporting by the observer for imposing punishment for prohibition to
\n\tright answer-book for half-an-hour, but the pertinent aspect is that
\n\tthe information provided to him by the observer are reproduced in
\n\tquotes (   ) in exact words.  If the same is considered, it
\n\tsupports to the extent that on account of the altercation of the
\n\twords for being disturbed  between the petitioner and the observer,
\n\tthe checking was made of the compass box of the petitioner and the
\n\tmaterial was found for the examination.\n<\/p>\n
(7)\tIf
\n\tthe statement of Shri R.Y. Mankad, Sr. Supervisor, Mrs.Rajeshreeben
\n\tManger, Observer, Incharge Principal and Sr. Supervisor,
\n\tMs.Meenakshi Darekhan and the Jr. Supervisor, Shri D.D. Prajapati,
\n\tare considered, the following appears to be undisputed position:-\n<\/p>\n
(1)\tThe
\n\tpetitioner has appeared at the examination of LL.B.\n<\/p>\n
(2)\tThere
\n\twas altercation of words for disturbance being created by the
\n\tobserver and the petitioner.\n<\/p>\n
(3)\tThe
\n\tinspection of compass box of the petitioner was made by the
\n\tobserver.\n<\/p>\n
(4)\tThe
\n\tfoot-ruler was taken away.\n<\/p>\n
(5)\tIt
\n\twas appearing that there was writing on foot-ruler.\n<\/p>\n
The
\n\tapparent basic discrepancies in the statements are on the following
\n\tpoints:-\n<\/p>\n
(1)\tWhether
\n\twriting on foot-ruler was there or a chit was affixed with the
\n\twriting on the foot-ruler.\n<\/p>\n
(2)\tThe
\n\tcontents of the writing on the aspects as to whether pertaining to
\n\tthe subject or the examination or other writing.\n<\/p>\n
(3)\tAs
\n\tper the observer and the examiner such foot-ruler did not attract
\n\tthe punishment exceeding prohibition for half-an-hour in writing
\n\tanswer paper and, therefore, the foot-ruler  or the alleged chit,
\n\tboth, were destroyed after imposition of the punishment by the
\n\tobserver and the Sr. Supervisor and the Principal.\n<\/p>\n
(4)\tThere
\n\tis basic discrepancies in the reporting by the Sr. Supervisor, Shri
\n\tMankad and there is no unanimity on the aspects of contents of the
\n\twriting of the foot-ruler and also as to whether such writing was
\n\tover the foot ruler or over the chit.\n<\/p>\n
(5)\tAs
\n\tper the petitioner, the foot-ruler was taken by him in the
\n\texamination since tabular statement may be required to be prepared
\n\tand since the compass box and the foot-ruler were of his child aged
\n\t6 \u00bd years, he might have written, but such writing, in any
\n\tcase, was not having any relevancy to the subject or the
\n\texamination.\n<\/p>\n
If
\n\tthe material itself is available before the domestic Tribunal or the
\n\tSuddhi Samithi or the University, as the case may be, it stands on a
\n\tdifferent footing or if statement was recorded of the petitioner by
\n\tthe Supervisor or the observer, as the case may be, on the spot,
\n\twhen such material was found, including the contents thereof, it may
\n\talso stand on a different footing.  But it appears that the observer
\n\tand the supervisor were satisfied with the punishment for
\n\tprohibition of half-an-hour at the examination and, therefore,
\n\tdestroyed the foot-ruler.  The University initiated the proceedings
\n\tat the later stage when it came to its notice.  As against the same,
\n\tthe defence of the petitioner was that the foot-ruler did not
\n\tcontain any material relevant to the subject or the examination.
\n\tSuch defence would essentially require the testification of the
\n\tfacts on the aspects of contents of the writing on foot-ruler.  The
\n\tsame would be more required, because of ex-facie basic discrepancies
\n\tin the statements of the observer, principal, and its reporting to
\n\tthe Sr. Supervisor, Shri Mankad and his statement.  Whether writing
\n\twas there on the foot-ruler or a chit was affixed itself is at
\n\tserious doubt.  Further no statements were recorded before Suddhi
\n\tSamithi or in presence of the petitioner.\n<\/p>\n
Therefore,
\n\tunder these circumstances, it appears  that the information which
\n\thas been given by way of a statement itself are in serious doubt and
\n\tthere is no chain of inference traceable on the basis of reasonable
\n\tprudence.\n<\/p>\n
Therefore,
\n\tif the test of fair play action by observance of the principles of
\n\tnatural justice was to be satisfied, it was essentially a case for
\n\tgiving opportunity of cross-examination of the witnesses, whose
\n\tstatements were recorded namely that of Shri R.Y. Mankad, Sr.
\n\tSupervisor, Ms. Rajeshree H. Mengar, Observer,  Ms.Meenakshi
\n\tDarekhan, Principal and Sr. Supervisor and Mr.Prajapati, Jr.
\n\tSupervisor to explore the truth by testing the statement made.
\n\tHence, it appears that considering the facts and circumstances and
\n\tthe basic doubts apparent from the statements recorded, the
\n\tcross-examination was if permitted, would have revealed the truth if
\n\tany really existed.\n<\/p>\n
It
\n\tis an admitted position that the petitioner did demand for
\n\tpermitting cross-examination and he had been repeatedly demanding,
\n\twhereas Suddhi Samithi has not permitted the same.  Not only that
\n\tbut it appears from the proceedings of the Executive Council of the
\n\tUniversity that while considering the recommendations of the Suddhi
\n\tSamithi, some of the members did express the view that the
\n\topportunity of cross-examination has not been given and, therefore,
\n\tthe punishment may not be imposed. However, it appears that in the
\n\tproceedings of the Executive Council of the University, it has been
\n\trecorded that after considering the report of Suddhi Samithi, one of
\n\tthe members, Shri D.G. Patel in support of the
\n\topinion\/recommendation of the Suddhi Samithi, expressed his view
\n\twhose English meaning can be extracted as under:-\n<\/p>\n
(1)\tThere
\n\tis no question of giving any cross-examination, because in the
\n\thistory of the University whenever any misconduct is committed, such
\n\topportunity is not given to any student. If such permission is
\n\tgranted, keeping in view the post held by Shri Rajnish Kumar Rai, it
\n\tmay raise contradictions in the statements of the witnesses.
\n\tFurther, after considering the representation made by one of the
\n\tMembers, Shri Pankaj shukla, it was inter alia recorded, the English
\n\tmeaning thereof can be extracted as under:-\n<\/p>\n
 The
\n\tobserver, Jr. Supervisor, Sr. Supervisor, Principal, etc., are
\n\tresponsible persons sent by the University and they have discharged
\n\ttheir duties in a proper manner.  Therefore, no doubt can be raised
\n\ton their statements.  Under these circumstances, the proceedings
\n\tadopted by Suddhi Samithi, is proper.   Ultimately, by majority
\n\tthe decision was taken to accept the recommendation of the Suddhi
\n\tSamithi.\n<\/p>\n
If
\n\tthe decision to deny cross-examination is based on the impression or
\n\ttradition of the University in past that no such permission has not
\n\tbeen granted, the same can hardly be said as a valid reason for
\n\tdenying cross-examination, so as to meet with the observance of
\n\tprinciples of natural justice in fair play action.  Had Suddhi
\n\tSamithi, or the University examined and weighed each evidence on a
\n\treasonable prudence, but with the discrepancies and basic
\n\tinfirmities and distinctions in the statements of the officers of
\n\tthe University and thereafter denied the cross-examination, possibly
\n\tthe matter could have been differently considered.  But if the
\n\tSuddhi Samithi, or the University has proceeded on a premise that
\n\tthere is no question of giving opportunity of cross-examination
\n\tsince in past in the history of the University such permission has
\n\tnot been granted, the same can neither be countenanced in the fair
\n\tplay action, nor such can be said as germane to the exercise of the
\n\tpower in observance of the principles of natural justice and thereby
\n\tthe fair play action.\n<\/p>\n
Further,
\n\tif the denial of cross-examination is on the ground that it may give
\n\trise to the contradictions of the statements of the witnesses, such
\n\ta ground can be said as to hush up the inquiry, instead of
\n\tcompleting the same in fair play manner.  It is hardly expected for
\n\tthe Suddhi Samithi, or the University, as the case may be, who is to
\n\texercise the power as a domestic Tribunal to hush up the inquiry and
\n\tthereby to foreclose the opportunity of cross-examination on
\n\tsurmises and conjectures that it may give rise to the contradictions
\n\tof the statements of the witnesses.  Had the Suddhi Samithi, or the
\n\tUniversity, as the case may be, examined the statements of the
\n\tObserver, Jr. and Sr. Supervisors and the Principal by applying the
\n\ttest of reasonable prudence, it would have been recorded that there
\n\twere basic contradictions in the statements of the witnesses, inter
\n\tse and not only that but if such contractions were excluded, there
\n\twas huge gap to draw inference even on probabilities, including the
\n\tprinciples that the mind is prone to infer that the writing was
\n\tthere on the foot-ruler or chit was fixed on the foot-ruler and as
\n\tthe relevancy of the writing was to the subject or the examination.
\n\tIf there was no evidence even on probabilities that the writing did
\n\texist relevant to the subject or the examination, neither the power
\n\tfor punishment could be attracted, nor the punishment itself could
\n\tbe maintained.  Therefore, denial of cross-examination to the
\n\tpetitioner on surmises that it may create contradictions in the
\n\tstatements of the witnesses can be said as failure to give
\n\treasonable opportunity in a domestic Tribunal not meeting with the
\n\ttest of fair play, more particularly when it is not even the case of
\n\tthe respondent University that any of the statements was recorded in
\n\tthe presence of the petitioner or before Suddhi Samithi.  The
\n\tessential purpose of the cross-examination is not only to explore
\n\tthe truth, but is also to observe the principles of fair play
\n\taction.  If the inquiry is hushed up, there would not be any
\n\tfairness as expected for the domestic Tribunal. Merely because the
\n\tpetitioner is holding the post of IPS Officer could also not be said
\n\tas a valid ground to deny the cross-examination, when he was being
\n\ttreated in capacity as the student and he had to defend the case as
\n\tthe student. It is true that holding the post by any persons
\n\tconcerned may not confer any additional right under the law, but at
\n\tthe same time, it can hardly be disputed that holding the post by
\n\tany person would result into disadvantageous position for enjoying
\n\tthe rights if otherwise available in law. There was no material on
\n\trecord to show that the petitioner in capacity as IPS Officer did
\n\ttry to prevail over any of the witnesses or there was any attempt
\n\tdirectly or indirectly or even remotely to tamper the evidence by
\n\tthe petitioner.\n<\/p>\n
Under
\n\tthese circumstances, if the denial of cross-examination is on the
\n\tbasis that the petitioner is holding the post and, therefore, it may
\n\tgive rise to the contradictions in the statements of the witnesses,
\n\tthe same can only be read as not only unfair action, but taking away
\n\tthe right for cross-examination, which otherwise exists under the
\n\tlaw, keeping in view the facts and circumstances of the case.  If
\n\tthe University has full faith upon its Observer, Jr. and Sr.
\n\tsupervisors, or the Principal, as referred to in the proceedings of
\n\tthe Executive Council, denial of the cross-examination to the
\n\tpetitioner on the ground that such may create contradictions in the
\n\tstatements in view of the post held by the petitioner, can be termed
\n\tas only an attempt to hush up the inquiry in an unfair manner and to
\n\tavoid the exploration of the truth at the cross-examination.  If the
\n\tconduct of the inquiry is examined in light of the past back-ground,
\n\tit appears that on the one hand, just on the statements, without
\n\tissuing any show-cause notice, the petitioner was called upon to
\n\tsubmit explanation as to why the punishment should not be imposed
\n\tand at that stage, Special Civil Application No.7292 of 2008 was
\n\tpreferred and the University agreed for giving additional notice
\n\tcontaining details and the proposed punishment to be imposed.
\n\tThereafter, at the inquiry, except supplying statements and to give
\n\topportunity of submitting reply in spite of the specific demand made
\n\tfor cross-examination after denial of the allegation, the same has
\n\tnot been given.  Under these circumstances, the proceedings as
\n\tconducted before the domestic Tribunal and its consideration thereof
\n\tby the Executive Council of the University could be said as in
\n\tbreach of the principles of natural justice and not meeting with the
\n\ttest of fair play action as was required in the present case.\n<\/p>\n
The
\n\tattempt by the learned Counsel for the respondent University was to
\n\tcontend that in certain cases this Court has found that the
\n\twitnesses may be won-over is one of the valid consideration for
\n\tdenial of cross-examination and it was submitted that such was in
\n\tthe present case and, therefore, the action on the part of the
\n\tSuddhi Samithi, to deny cross-examination or, in any case, by the
\n\tUniversity could said as valid.\n<\/p>\n
I
\n\tam afraid such contention can be accepted on the face of basic
\n\tdiscrepancies in the statements of the Observer, Jr. and Sr.
\n\tSupervisors and the Principal of the University. If statements are
\n\tnot recorded in the presence of the student concerned and there are
\n\tbasic infirmities in the statements and if the material is
\n\tnon-existent before Suddhi Samithi, had the Suddhi Samithi, desired
\n\tto conduct inquiry in a fair manner, it was required for Suddhi
\n\tSamithi, to permit cross-examination, keeping in view the peculiar
\n\tcircumstances.  The fact situation of the case upon which the
\n\treliance has been placed by the learned Counsel for the University
\n\twherein observations were made by this Court that the witnesses may
\n\tbe won-over cannot be equated with the facts of the present case as
\n\tnarrated hereinabove, in earlier paragraphs.\n<\/p>\n
It
\n\twas also attempted to submit by the learned Counsel for the
\n\tUniversity that if the statements are read based on the
\n\tprobabilities and a reasonable prudence, it goes to show that the
\n\tpetitioner committed misconduct and, therefore, this Court may not
\n\tre-appreciate the evidence as if the Court of the appeal by
\n\trecording a different conclusion based on the facts.\n<\/p>\n
It
\n\tis true that this Court would not sit in appeal, but ensuring the
\n\tobservance of principles of natural justice and fair play action is
\n\ta basic element to be observed by any domestic Tribunal like that of
\n\tSuddhi Samithi, or the University, as the case may be.  If this
\n\tCourt has found that the statements recorded are at basic variance
\n\tand there is basic proof lacking in an un-controverted manner for
\n\tthe material\/writing having nexus to the subject or the examination,
\n\tthe cross-examination was required to be permitted, more
\n\tparticularly when writing or the material were non-existent at the
\n\ttime when the inquiry was conducted, such consideration would not be
\n\tas that of the Court of appeal.  But would be to scan and to
\n\tundertake the judicial scrutiny of the procedure undertaken by the
\n\tSuddhi Samithi, where by observance of the principles of natural
\n\tjustice, which is the basic requirement and thereby a fair play
\n\taction has resulted or not.  This Court may not re-appreciate the
\n\tevidence as that of the Court of appeal, but if the basic infirmity
\n\texists upon the evidence available on record as that of the
\n\tstatements, which, in any case, are not recorded in presence of the
\n\tpetitioner and, in any case, there is no direct evidence available
\n\ton record to show that the writing did exist  having relevancy to
\n\tthe subject or the examination, complaint of not giving
\n\tcross-examination and thereby breach of principles of justice cannot
\n\tbe thrown away on the so-called findings recorded by the Suddhi
\n\tSamithi, or the University, as the case may be on surmises and
\n\tconjectures, which are titled as on probabilities by the University.
\n\t The test to be applied to such probabilities would be reasonable
\n\tprudence with impartiality and not as that of the presumption of the
\n\tguilt on the part of the student.  If such basic things are lacking
\n\tand the attempt is to hush up the inquiry by foreclosing a valuable
\n\tright of fair play action, it can hardly be said that the conclusion
\n\trecorded for finding guilt are on a valid inference on
\n\tprobabilities, but it appears to the Court, on surmises and
\n\tconjectures, therefore, can also be said as no sufficient evidence
\n\tto prove the guilt or the vitiation of the proceedings before the
\n\tdomestic Tribunal ultimately culminated into  imposition of
\n\tpunishment.\n<\/p>\n
In
\n\tview of the aforesaid observations, the impugned decision on the
\n\tpart of the Suddhi Samithi, or the University, as the case may be
\n\tfor imposition of the punishment upon the petitioner for declaring
\n\thim as failed (F + O) cannot be sustained and deserves to be quashed
\n\tand set aside.  Hence, quashed and set aside. Consequently, the
\n\tUniversity shall be required to declare the result of the petitioner
\n\tof the concerned examinations forthwith.\n<\/p>\n
ORDER
\nBELOW CIVIL APPLICATION NO.11120 OF 2008:\n<\/p>\n
The
\n\tapplication No.11120 of 2008 is preferred by the petitioner, which
\n\tis simultaneously heard with the main Special Civil Application, to
\n\tdirect the University to declare the result of the applicant
\n\tpetitioner and to direct the University to take admission of the
\n\tapplicant in any of its affiliated Law Colleges in First Semester,
\n\tSecond Year LL.B., in the year 2008-09.\n<\/p>\n
In
\n\tview of the judgement\/order passed by this Court in the main Special
\n\tCivil Application, whereby the decision of the University is quashed
\n\tand set aside for imposition of the punishment upon the applicant
\n\tpetitioner and the University is directed to declare the result of
\n\tthe petitioner.  As a consequence thereof, the prayer to that extent
\n\twould not survive, except observing that the University shall
\n\tdeclare the result of the examinations of Second Semester of First
\n\tLL.B.\n<\/p>\n
Concerning
\n\tto the prayer to direct the University to grant admission in any of
\n\tthe affiliated Colleges in First Semester, Second LL.B. Academic
\n\tYear is concerned, as such the same was not the subject matter of
\n\tthe petition. However, the attempt on the part of the learned
\n\tCounsel for the applicant-petitioner was that it is on account of
\n\tthe impugned decision of the University, the result of the
\n\tpetitioner could not be declared and as a consequence thereof the
\n\tpetitioner could not take admission in the First Semester of Second
\n\tYear LL.B., and it was submitted that if this Court has allowed the
\n\tmain Special Civil Application, the prejudice caused to the
\n\tpetitioner-applicant may be undone.  It was also submitted that if
\n\tdelay had taken place during the pendency of the main Special Civil
\n\tApplication, it may also not operate adverse to the petitioner.\n<\/p>\n
Whereas
\n\ton behalf of the University, it was submitted by the learned Counsel
\n\tfor the University and the Vice Chancellor that the
\n\tapplicant-petitioner has actually not applied or taken admission in
\n\tany of the affiliated colleges and, therefore, such direction may
\n\tnot be given.  It was also submitted that the examination of the
\n\tFirst Semester of Second LL.B., is to commence on 5.11.2008, but in
\n\tabsence of the admission taken by the petitioner in any of the
\n\taffiliated colleges or in absence of the required attendance or
\n\tfilling up of the examination form, this Court may not direct for
\n\tpermitting the appearance of the petitioner   applicant at the
\n\tsaid examination as prayed for by the learned Counsel for the
\n\tapplicant-petitioner.\n<\/p>\n
As
\n\tsuch it is true that on account of the impugned decision of the
\n\tUniversity, prejudice, if any, caused to the applicant-petitioner
\n\tmay be undone and had the result been declared well in time, the
\n\tapplicant-petitioner could have got admission in First Semester of
\n\tSecond LL.B., provided he was declared as passed.  There is no
\n\tmaterial produced on record for declaration of such result as passed
\n\tand the mark-sheet for such purpose.  Therefore, this Court cannot
\n\tproceed on the basis that after the quashing of the order of the
\n\tUniversity for imposition of the punishment, the
\n\tapplicant-petitioner is declared as passed by the University and he
\n\twas entitled to apply for admission in First Semester of Second Year
\n\tLL.B., as if passed. The fact also remains that the
\n\tapplicant-petitioner was prevented from applying for admission in
\n\tthe First Semester of Second Year LL.B., on account of the impugned
\n\tdecision of the University, which is ultimately set aside by this
\n\tCourt.  It is also an admitted position that the examinations are to
\n\tstart of First Semester of Second on 5th November, 2008.
\n\tIf the matter is strictly viewed, in absence of the admission taken
\n\tby the applicant-petitioner in First Semester of Second LL.B., and
\n\thaving not filled up the forms for such examination, the University
\n\tcannot be directed to permit the petitioner-applicant’s appearance
\n\tat the examination of First Semester of Second LL.B, which is to
\n\tcommence on 5.11.2008.  However, had the result of the
\n\tpetitioner-applicant been declared by the University well in time
\n\tand if the petitioner was declared as passed, in normal course, he
\n\twould have been entitled for admission in First Semester of Second
\n\tLL.B., and he could have undergone the studies and also could have
\n\tfilled up the examination form for examination to be held on
\n\t5.11.2008.  Since the time was consumed in the present litigation,
\n\tsuch complication has arisen and irreversible situation has been
\n\tcreated.\n<\/p>\n
It
\n\thas also been submitted by the University that if the present
\n\tpunishment is quashed and the applicant-petitioner is desirous to
\n\tappear in both the semesters’ examinations of Second LL.B., in the
\n\tnext academic session, which will be held in April, 2009, the same
\n\tcan be considered and there are instances in past for such purpose.
\n\tIt was also submitted that if the result of the petitioner-applicant
\n\tis ultimately declared and if he is declared passed in the Second
\n\tSemester of First LL.B., which is the subject matter in the main
\n\tpetition and he takes admission in the affiliated college, the
\n\tpresence aspects can be considered for condonation or otherwise and
\n\tsuch, in any case, would not result into wastage of academic period
\n\tof the petitioner-applicant.\n<\/p>\n
It
\n\tappears that the irreversible situation has arisen on account of the
\n\ttime consumed in the litigation, but at the same time it would be
\n\trequired for the University to take consequential effect upon the
\n\tcareer of the student.  If the decision of the University of
\n\timposition is ultimately set aside and on account of the time
\n\tconsumed in the present litigation and the decision rendered by this
\n\tCourt, the result of the petitioner was not declared and the
\n\tpetitioner was prevented from applying for admission in First
\n\tSemester of Second LL.B., or Second Year of LL.B., such situation
\n\tcan be salvaged if the result of the applicant   petitioner is
\n\tdeclared and the petitioner takes admission in the Second Year of
\n\tLL.B., for both the semesters and as and when the examinations of
\n\tthe Second Year LL.B., for both the Semesters are held in April
\n\tMay, 2009, in view of the peculiar circumstances, requisite period
\n\tmay be regularized or condoned so as to make the
\n\tapplicant-petitioner eligible to appear in the examinations of First
\n\tSemester of Second LL.B., together with the examinations of Second
\n\tSemester of Second LL.B.  Such observations deserve to be made to
\n\tsalvage the situation from the damage caused on account of the
\n\timpugned decision of the University, which is ultimately quashed by
\n\tthis Court.\n<\/p>\n
Hence,
\n\tit is further directed that the University shall declare the result
\n\tof the applicant   petitioner on or before 14.11.2008. After the
\n\tdeclaration of the result, if the petitioner   applicant is
\n\tdeclared passed, he shall be at liberty to take admission in Second
\n\tYear LL.B., of First Semester as well as of Second Semester
\n\tsimultaneously and shall also be at liberty to prosecute studies in
\n\taccordance with law.  It is also observed that in case of any
\n\tshortage of requisite number of days of attendance or studies for
\n\tcomplying the eligibility to appear in the next examinations of
\n\tFirst Semester as well as Second Semester of Second LL.B., it would
\n\tbe open to the petitioner to apply the College or the University, as
\n\tthe case may be, for regularizing the period or for condoning the
\n\tperiod on account of the aforesaid  unavoidable circumstances and
\n\tthe delay caused in litigation as well as on account of the decision
\n\tof the University, which is ultimately quashed by this Court.\n<\/p>\n
Hence,
\n\tordered accordingly.  Special Civil Application as well as the Civil
\n\tApplication shall stand allowed to the aforesaid extent. Rule made
\n\tabsolute accordingly.  No order as to costs.\n<\/p>\n
24.10.2008\t\t\t\t\t(Jayant\nPatel, J.)\n \n\n\nvinod\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Rajnish vs The on 16 October, 2008 Bench: Jayant Patel 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-243654","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRajnish vs The on 16 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajnish-vs-the-on-16-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajnish vs The on 16 October, 2008 - 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