Abhay Mishra vs Union of India (UOI) and Others

Rakesh Tiwari, J.—Heard learned Counsel for the petitioner and the learned standing counsel for the respondents who has produced the original paper book of the petitioner before the Court.

The contention of learned Counsel for the petitioner is that the petitioner was falsely implicated on charge of being in possession of printed copying material which might have been used for cheating. The petitioner was appearing in the subject of Ancient History B.A. IIIrd examination as a regular candidate on 21.4.2007. He is alleged to have been caught by Flying Squad with four reproduced photostat pages from his pocket said to be pertaining to IIIrd paper of the subject of Ancient History. Notice dated 24.4.2007 was issued to him on charge of "caught by Flying Squad with four reproduced Photostat pages from his pocket."

On issuance of notice the petitioner submitted his explanation on 24.4.2007 that when he appeared in the examination on 20.4.2007 the Flying Squad had abused him and when nothing was found in his possession he was threatened to see dire consequences as the examination has not ended. This harassment according to him was meted to him as he was actively and genuinely involved in welfare of the students being a student leader. He further claims that on 21.4.2007 he was again searched and the aforesaid four reproduced pages are said to have been found in his possession though he claims innocence about the same. He also claims that he had only made oral complaint to the Incharge precent in the class room but had not made any written complaint to any of the authorities about this action of the Flying Squad but only to the class Invigilator who was not examined by the University in the enquiry. In his explanation the petitioner also averred that the class Invigilator had on his oral complaint assured that he will give evidence on his behalf in this regard in the enquiry.

The explanation of the petitioner is as under:

lsok esa] ijh{kk fu;a=d bykgkckn fo''ofo|ky; bykgkckn A lUnHkZ& vkids i=kad la[;k 248 fnukad 24-4-2007 ds izR;qRrj esa A

egksn;] vkidk i=kad la[;k 248 fnukad 24-4-2007 dks iathd`r Mkd }kjk izkIr gqvk] ftlesa esjs �ij fnukad 21-4-2007 dks izk0 bfr0 r`rh; iz''u&i= dh ijh{kk ds nkSjku vuqfpr lk/ku ds iz;ksx dk vkjksi gS A eSa vkids le{k mDr i= ds vkjksi es dguk pkgrk gaw fd&

eS fo''ofo|ky; Nk=la?k dh jktuhfr esa dbZ o"kksZ ls lfdz; gaw ftlds pyrs dqN yksxks dk vkjksi jgrk gS fd eS lhfu;jks ls reht ls is''k ugh vkrk rFkk vius vkidks cgqr cM+k usrk le>us yxk gwa A bUgh ckrks dh otg ls tc eS fnukad 20-4-2007 dks izk0 bfr0 f}rh; iz''u dh ijh{k ns jgk Fkk rks mM+u nLrs ds lnL;ks us eq>s dbZ ckj ijs''kku fd;k vkSj tc esjs ikl dksbZ vuqfpr lkexzh ugh feyh rks cksys csVk dksbZ ckr ugh vHkh ijh{kk lekIr ugh gqbZ gS] tc ,d gh Dykl esa 5 lky jxM+ksxs rks vdy fBdkus vk tk,xh A ,slk dgdj pys x;s A blds ckn tc eS vxys fnukad 21-4-2007 dks izk0 bfr0 r`rh; iz''u&i= dh ijh{kk ns jgk Fkk rks yxHkx 8-45 ij tc eS vk/kh ls vf/kd iz''uks dks gy dj pqdk Fkk rks mM+u nLrs ds lnL; ikl vkdj ryk''kh fy, vkSj dqN u feyus ij rFkkdfFkr iUuks dks fn[kkdj cksys& vius vki dks rhl ekj [kkWa le>rs gks] vc irk pysxk vkSj tcjnLrh eq>ls vkjksi i= ncko cukdj Hkjok fy;k A tc eSus d{k fujh{kd ls f''kdk;r dh rks mUgksus dgk fd fpark u djks eS lPpkbZ ls lfefr dks voxr djk nwaxk] rqe dsoy nwljh dkih esa NwVs iz''uks dks gy djks A lfefr mfpr fu.kZ; gh djsxh A

eS vkils fuosnu djuk pkgrk gwWa fd mDr udy lkexzh ls esjk dksbZ lEcU/k ugh gS ;fn lfefr pkgs rks mDr lkexzh dk feyku esjh mRrj iqfLrdk ls dj ldrh gS A

vr% vkils djc) izkFkZuk gS fd izkFkhZ ds fo|kFkhZ o jktuSfrd Hkfo"; dks /;ku esa j[kdj mfpr dk;Zokgh dk d"V djsa A

izkFkhZ vHk; dqekj feJk iq= ts- ,u- feJk ch0,0 r`rh; jksy ua0 200807 irk 137@11 pkaniqj lyksjh] bykgkcknA

The Expert Examiner reported using of unfair material by the candidate. The examination of 2007 of the petitioner of B.A. III has been cancelled as a consequence thereof also debarring the petitioner from appearing in 2008 examination.

The report/note of the Expert Examiner and the Dean of the University on it is as under:

Hkkx&2

5& ijh{kd dh vk[;k%

�1� D;k ijh{kkFkhZ us vfofgr lkexzh esa vuqfpr lk/ku iz;ksx fd;k gS \\

;fn gkW rkls--- gkWa

iz''u la[;k ---- iz''u la[;k&1

vfofgr lkexzh fdl va''k rd\\ fpfUgr fd;k x;k gS A

mRrj iqfLrdk dh i`"B ds fdl i`"B rd\\ do fpfUgr fd;k x;k A

�2�; fn ugha rks D;k ijh{kkFkhZ ds ikl ls izkIr vfofgr lkexzh ds lEcfU/kr iz''u ds ikB~;dze ls lEcfU/kr gS\\&

fnukad 23-8-2007

gLrk{kj ijh{kd g0 vLi"V

fVIi.kh& vfofgr lkexzh dk og va''k ftlls ijh{kkFkhZ us vuqfpr lk/ku iz;ksx fd;k gks vFkok djrk gks rFkk mRrj iqfLrdkvks dk og va''k ftlls mudk iz;ksx fd;k x;k gks] d`i;k fpfUgr djsa A

6- lfefr dk fu.kZ;----

Expert examiner reports U.P.M. material used by candidate. Exam of 2007 cancelled and debarred from 2008 exam.

Sd. Illegible. 26.6.2007.

I have perused the original copy of the petitioner and the printed material. The printed materials which are said to have been found in possession of the petitioner are as under:

;wukuh dykdkjksa dks izfrHkk dk okLrfod Lo:i mudh ewfrZdyk esa fn[kkbZ iM+rk gS izkjEHk esa ewfrZ;ksa ,oa vn~Hkqr fp=ksa dk mi;ksx nsokyk;ksa ds vyadj.k ds fy, fd;k x;k A bUgs vkd"kZd cukus ds fy, jaxk Hkh tkrk Fkk A bl izdkj ;wukuh oLrqdyk] ewfrZdyk] mr~Hkodyk rFkk fp= dyk vi`Fkd~ :i ls ,d nwljs tqM+h Fkh A

Copied portion which is said to have been reproduced by the petitioner in the answer book in the opinion of the subject expert and inserted by him is as under:

;wukuh ewfrZdyk dk izkjEHk nsoky;ksa ds vyadj.k ds fy, gqvk gS A

From perusal of the above It is clear that the printed material which is said to have been used by the candidate has not in fact been used and the marked portion by the Expert Examiner in the answer given by the candidates does not tally with it at all. The petitioner has stated that he has been falsely implicated in this matter by the University on account of his student Union activities. The Court is not making any comments upon this observation that the petitioner was not charged for copying of the printed material.

One year of the petitioner has already been wasted. He has undergone adequate and sufficient punishment for charge of possession of material. As regards charge of copying from the printed material is concerned It has neither been levelled against him nor any charge has been proved or made out from the original copy of the petitioner produced by the University. The report of the expert subject examiner is not correct and is without basis.

If a student is not particularly charged for copying from the printed material he cannot be held to be guilty of the said charge and punished for it, for this would be in violation of principles of natural justice. He cannot be expected to defend himself against an imaginary or non-existing charge nor levelled against him.

For the reasons stated above, me impugned order is quashed to the extent it debars the petitioner for one year and the writ petition is accordingly allowed. As a consequence, the petitioner will be permitted to appear in the Examination 2007-2008 by the University after allowing him to complete all formalities for the examination.