Aswathi A Nair vs Jawaharlal Nehru University

V. Kameswar Rao, J

The present petition has been filed with the following prayers:-

“In view of the facts & circumstances stated above, it is prayed that this Honâ€​ble Court in public interest may be pleased to:

issue a writ of certiorari or any other writ, order or direction thereby quashing and setting aside the report of the High Level Enquiry

Committee set up by the respondent vide Office Order No. 202/CP/2016 dated 22.8.2016 of the Vice Chancellor punishing the petitioner,

and all other proceedings consequential to and arising out of the report of the High Level Enquiry Committee of the respondent University;

award the petitioner the costs of these proceedings;

Pass such further order or orders as this Honâ€​ble Court may deem fit.â€​

FACTS:-

The facts as averred in the writ petition are, on February 09, 2016 a poetry reading event was organized. The poster said “A Country Without a

Post Officeâ€. As per Statute 32(2), the University has a proctorial system where administration of students related matters pertaining to acts of

indiscipline are delegated to the Chief Proctor. He/she is assisted by two additional proctors; one of the proctors is a woman. On February 11, 2016, a

proctorial inquiry was set up and an appeal was made to all concerned, especially students to submit all audio/video evidences regarding the incident

by February 26, 2016. On February 11, 2016, the Vice Chancellor set up a High Level Enquiry Committee superseding the Proctorial Enquiry

Committee. The HLEC was given the deadline of February 22, 2016 for submitting the report. The HLEC submitted a preliminary report, which was

accepted by the Vice Chancellor and the Chief Proctor was asked to implement the recommendations. On February 12, 2016, HLEC sent a letter

directing the petitioner to appear before the HLEC on February 15, 2016. On February 16, 2016, the HLEC sent second notice to the petitioner

directing her to appear before the HLEC on February 18, 2016. On February 18, 2016, the HLEC sent third notice to the petitioner directing her to

appear before the HLEC on February 26, 2016. On February 23, 2016 the Vice Chancellor had approved appointment of two more Members in

HLEC. On March 11, 2016, the HLEC submitted its report. On March 15, 2016, a show cause notice was issued to the students wherein they were

directed to file reply by 4 pm on March 16, 2016. Deadline to file reply was increased by few days till March 18, 2016. On March 18, 2016, reply was

filed by the students, wherein they had sought that the copy of the complaint, details of the witnesses and their depositions, list of documents,

proof/evidence/findings, if any relied on and all documents, statements, and material, if any, relied upon by, during the course of the enquiry, be

provided, in order to enable them to file a detailed written response. Thereafter, sufficient time may be granted to make an effective response to the

findings. On April 25, 2016, the Chief Proctor after obtaining the approval of the Vice Chancellor issued order holding the petitioner guilty under

Clause 3, of category-II sub-category (xxv), whereby the VC imposed a fine of Rs.20,000/- on the petitioner. A writ petition is filed by the petitioner

being W.P.(C) No. 4392/2016 wherein this Court passed an order holding that the office order dated April 25, 2016 shall not be given effect to until

the appeal filed by the petitioner is decided. On August 22, 2016, order is passed in the appeal upholding the fine of Rs.20,000/- that has been imposed

by HLEC on the petitioner.

SUBMISSIONS:-

It is the submission of Ms. Malavika Rajkotia, learned counsel for the petitioner, post the events of February 09, 2016, the Respondent set up a

'proctorial enquiry' to enquire into the allegedly seditious slogans raised during this event. However, this enquiry was superseded by the Vice

Chancellor, who set up a ""High Level Enquiry Committee"". The students identified by the HLEC sent a representation to the Committee, challenging

its constitution and also requested that the findings, charges, and the purported evidence be shared with them. The HLEC failed to respond to any of

these requests. As per the HLEC recommendations, the Petitioner was found guilty of (a) giving undertaking in the false pretext to hold Poetry

Reading “A Country without Post Office†at Sabarmati Dhaba on February 9, 2016 from 5 pm to 7.30 pm; (b) ""lending her name in the poster

titled ""Against the Brahmical collective conscience! Against the judicial killing of Afzal Guru and Maqbool Bhatt..."" in the name of cultural evening

thus arousing communal and caste feelings"" and was imposed a fine of Rs.20,000/-. In order to protest the unfair manner in which the Petitioner,

among other students, was punished by the Respondent, some students of the University went on an indefinite hunger strike, followed by a mass

hunger strike by some teachers of the University. The Petitioner subsequently, approached this Court for quashing the aforementioned office order.

This Court held that the Office Order will not be given effect until disposal of the appeal filed by the Petitioner before the Vice Chancellor. The

decision of the Chief Proctor was upheld and the Petitioner was directed to deposit the sum of Rs.20,000/- as fine. According to Ms. Rajkotia, the

petitioner has been subjected to an enquiry which was in violation of the principles of natural justice. Any administrative inquiry devoid of the

adherence to these principles does not stand. She refers to the judgments of the Supreme Court in AK Kraipak v. Union of India AIR 1970 SC 150

and State of Orissa v. Dr. (Miss) Binapani Dei and Ors. AIR 1967 SC 1269.

It is the submission of Ms. Malavika Rajkotias, that the impugned action of the respondent is bad for the following reasons:-

A. Violation of Principles of Natural Justice

The principles of natural justice have been violated at every step of the enquiry undertaken by the Respondent. The enquiry process suffered from the

following lacunae:

a. Biased Enquiry

The appellate authority is the Vice Chancellor whose approval had been granted for imposing the punishment under Office Order 148/CP/2016

dated April 25, 2016. The Vice Chancellor was already prejudiced against the Petitioner and was consequently incapable of appreciating evidence

from an unbiased perspective. The principle of Nemo debet esse judex in propria causa"" means that no one should be a judge in his own cause is

applicable in this case. She referred to the judgment of the Supreme Court in the case reported as (1978) AIR 597 Maneka Gandhi v. Union of India,

wherein the Supreme Court has held that administrative action shall be held in a manner which is patently impartial and meets the requirements of

natural justice. In the instant factual matrix, it is clear that the appellate authority is the Vice Chancellor whose approval had been granted for imposing

the punishment. As such, the Vice Chancellor cannot be the appellate authority as he was already prejudiced against the petitioner and would have

been incapable of appreciating the evidence from an unbiased perspective.

b. Confrontation of Evidence

The Respondent failed to provide the Petitioner with copies of all statements and evidence collected by the High Level Enquiry Committee and

consequently used by the Appellate Authority. The Respondent provided the Petitioner with a series of haphazardly compiled documents which were

completely irrelevant and did not prove any of the charges made against the Petitioner. The Respondent has however, used these statements to level

serious and false charges against the Petitioner. She referred to the judgment of the Supreme Court in the case reported as (1955) AIR 65

Dhakeshwari Cotton Mills v. Commissioner of Income Tax. In denying the Petitioner the opportunity to examine the statements and documents

collected by the HLEC, the Respondent has denied the Petitioner of a fair opportunity making the enquiry process arbitrary and therefore illegal.

c. Cross examination

According to Ms. Rajkotia, the Petitioner has also not been given the opportunity to cross examine persons or test the veracity of the persons

examined by the committee and to lead evidence in her defence. This clearly vitiates the process adopted by the Respondent. Clause (5) of Section

35(2) of the Statutes of the University clearly states that a cross examination of the accused and the complainant is to be conducted in the proceedings

conducted as part of a proctorial enquiry. This opportunity has not been given to the petitioner in the instant case.

d. Notice

In addition to all of the lapses in the decision making process the Petitioner was not given notice about the proceedings which the Respondent

undertook to punish the Petitioner. She referred to the judgment of the Supreme Court in Nagarjuna Construction Company Ltd. v. Government of

Andhra Pradesh and Ors. 2008 (14) SCR 859.

B. Non-Application of Mind

The order passed is itself flawed in many respects. The imposition of the same penalty on all concerned students barring two, in spite of huge

differences in the acts that they have been held guilty of, reflects lack of application of mind as well as a complete ignorance of the principles of

sentencing that an administrative body entrusted with holding an enquiry must be aware of. Moreover, while the Appellate Authority has limited itself

to the question of quantum of punishment, it has failed to provide any reasons for the punishment imposed. The fact that the orders passed against all

the students were in boilerplate language furthers the factum of lack of application of mind by the Appellate Authority. She referred to the judgments

in the case of Commissioner of Police v.Ghordandas 1952 SC 16 and D'Souza v. State of Bombay 1956 SCR 382.

C. Application of Patently Illegal University Rules

The Respondent has punished the Petitioner under rules which are illegal and void. The Petitioner's alleged acts have been classified as a

Category II misconduct falling under clause (xxv), which reads,

Any other act which may be considered by the V.C. or any other competent authority to be an act of violation of discipline and conduct."" This

provision is too vague and wide. It can encompass any act of a student, and should therefore be considered void. Clause (10) of Statute 32(5) of the

Statutes of the University state that the Vice Chancellor shall make the final decisions in any enquiry and shall approve the punishment imposed by the

enquiry committee. Clause (12) of Statute 32(5) of the Statutes of the University state that the Vice Chancellor shall also be the appellate authority.

Under these provisions, the Vice Chancellor is required to be involved in the process of enquiry at the first instance. However, he is also required to sit

in appeal over the same matter. This is in violation of the basic principle that a person cannot sit in appeal against their own order.

D. Violation of the Fundamental Right to Freedom of Speech and Expression

According to Ms. Rajkotia, the order passed by the HLEC and later confirmed by the Appellate Authority is not only violative of the Principles of

Natural Justice but also deprives the Petitioner of her right to protest an activity to raise political issues which is her constitutional right under Article

19 (1) of the Constitution of India, 1950. She relied on the judgment of the Supreme Court in the case of

Anita Thakur & Ors. v. Govt of Jammu and Kashmir & Ors, AIR 2016 SC 3808 wherein it was held that the right to peacefully protest is a

fundamental right guaranteed by the Constitution. The involvement of the Petitioner in the event held at the Sabarmati Dhaba on 9th February 2016

was peaceful. The role played by her in the said event cannot be construed to be disruptive or giving rise to caste and communal feelings. She

referred to the judgment of this Court in Amritshava Kamal v. Jawaharlal Nehru University 2007 (99) DRJ 528.

She stated, the past conduct of the Respondent is reflective of the fact that there exists a tendency in the Respondent to hold inquiries in a mala

fide manner, sidelining the interests of the students. In the abovementioned case, it was found that the Respondent had not provided the Petitioner with

opportunity or notice before the inquiry against the Petitioner. In support of this submission, Ms. Rajkotia referred to the judgment of Flora Gupta v.

Jawaharlal Nehru University, MANU/DE/3042/2012.

On the other hand, Ms. Ginny Routray, learned counsel for the respondent would submit, the Petitioner was given ample opportunity to appear and

depose before the Enquiry Committee along with the liberty to carry materials and evidences in her defense at the stage of Enquiry, Show Cause

Notice and Appeal. The Petitioner failed to respond to the first notice dated February 12, 2016 wherein she was asked to appear before the

Committee on February 15, 2016. Subsequently, a second notice was issued on February 16, 2016 asking her to appear before the Committee on

February 18, 2016. A third notice was served to the Petitioner on February 18, 2016 asking her to appear before the committee on February 26, 2016,

however, the Petitioner abstained herself from appearing before the committee and clearing her stand. She submitted, the Petitioner on March 02,

2016 addressed a letter to the HLEC wherein she stated that-

This is in response to the third notice from high level enquiry committee dated 18.02.2016 with reference no. HLEC/JNU/2016/2139 that I

received by speed post on 22.02.2016 at my permanent address in Kerala. It was stated in the letter that it is the third notice asking me to

appear before the enquiry committee on 26.02.2016. Since I was out of Delhi from 13th February, I could not collect the first two notices

that were sent in my hostel and centre address. I was out of Delhi from 13 February and is currently still at home in kerala due to some very

sever medical emergency……….

In the circumstances following the 9th February an extremely volatile situation has been created both inside and outside the campus which

was resulted in extreme mental and physical stress for me…….. I feel insecure because the prevailing atmosphere in JNU, and city and

indeed the country is not conductive to a proper and fir investigation, making depositions and statements without fear impossible……….

According to her, all 3 notices were dispatched via the Central Dispatch of the University which is an independent department of the University.

The notices were served at all her known address including her Hostel room, permanent address and email-id. Further, as per the Hostel Manual of

the University concerning Norms governing Hostel Life Chapter 2, Clause 2.5.3, states that-“A resident who wishes to stay out late or remain

absent overnight shall inform the warden concerned in the prescribed formâ€. However, there was no intimation on behalf of the Petitioner that she

would not be available in the hostel from February 13, 2016 onwards, whereas the first notice was sent on February 12, 2016. Hence, the notices are

deemed to be served. She submitted, the Petitioner only returned to campus on March 14, 2016 as stated in the Rejoinder however, she did not try to

contact the authorities on her return let alone even inform them as to when she would be returning to campus in letter dated March 02, 2016. She

submitted, lack of concern on part of the Petitioner and therefore the HLEC proceedings were disregarded by her. Thus, the Petitioner herself lost the

opportunity to appear before the committee and clear her stand. Furthermore, Ms. Rautray submitted, the Petitioner feeling unsafe within the campus

is not a viable excuse since the Respondent had taken steps to ensure the safety and tight security for all the students within the campus, in fact even

morning walkers were prohibited to enter the campus. Also, the Petitioner was not even in campus to fear for her safety. It is thus, evident that the

Petitioner deliberately avoided appearing before the committee and made baseless excuses not to do so. It does not corroborate the Petitionerâ€s

statement regarding the medical emergency for which she had to leave for Kerala. Further, in her letter the Petitioner neither addressed her

involvement in the event nor tried to clear her stand.

According to Ms. Routray, a Show Cause Notice dated March 14, 2016 was issued to the Petitioner which stated that-

“As per the High Level Enquiry Committee findings, you (Ms. Ashwathi A. Nair, Registration Number: 20981, Enrolment No:

11/4C/MI/002, Year of Admission: 2011, M.Phil/Ph.D. Student, Centre for African Studies, School of International Studies, JNU, New

Delhi) have been found guilty on the following account under the Clause 3, Category II of Rules and discipline and proper conduct of

students of JNU.

(xxv) Any other act which may be considered by the VC or any other competent authority to be an act of violation of discipline and conduct

The Show Cause Notice further asked the Petitioner to explain why disciplinary action should be not initiated against her for indulging in the above

mentioned acts. Ms. Routray submitted, the Petitioner was asked to submit her reply to the Chief Proctorâ€s Office latest by March 16, 2015, 17:00

hrs, which was later extended till March 18, 2016 failing which it would be presumed that the Petitioner has nothing to say in her defense and the

office would proceed further in the matter. A copy of HLEC report was also conveyed to the Petitioner which clearly outlined the act and conduct of

the Petitioner. The Petitioner responded to the Show Cause Notice on March 18, 2016 wherein she stated that-

The composition of the committee itself has been questioned by both JNUTA and JNUSU, for being non-representative and biased. Despite

the inclusion of two additional members at a later stage, there are no SC/ST representatives on the committee.

This is apart from the fact that the unseemly haste and total disregard of any rules of natural justice, that vitiate the constitution of the

HLEC, its proceedings and its “reportâ€​….

I am deeply disturbed by such a non-specific, vague and general show cause notice that seems to have been issued for no reason other than

a plan to rope me along with other students into an orchestrated controversy to deter us from taking vocal position on any issues that arise

in the university.

According to Ms. Routray, there is no Rule or Statute of the Respondent University requires the composition of the Committee to have SC/ST

representation. Further, the Petitioner cannot claim that there was a disregard of the Principles of Natural Justice since the Petitioner was served with

3 notices to appear on 3 different dates yet the Petitioner chose to ignore them and not appear before the Committee. She submitted that the Petitioner

without having appeared before the Committee cannot claim that the principles of natural justice have not been followed by the Respondents. The

Petitioner herself failed to avail the opportunity given to her and thus, there was no violation of Principles of Natural Justice and Fair Play.

The respondent subsequently on April 25, 2016, after more than a month, passed on office order wherein it was stated that-

With reference to the 9 February 2016 incident of JNU campus, the High Level Enquiry Committee (HLEC) has found Ms. Aswathi a. Nair

(Registration Number- 20980, Enrolment No: 11/4C/MI/002, Year of Admission: 2011, M.Phil/Ph.D. Student, Centre of African Studies,

School of International Studies and a r/o. Room No.63, Shipra Hostel) guilty on the following counts.

The university ‘Rules and discipline and proper conduct of students of JNU’, Clause 3- “Categories of misconduct and

indisciplineâ€, Category-II, Sub- Category (xxv) prohibits “Any other act which may be considered by the VC or any other competent

authority to be an act of violation of discipline and conductâ€​.

As per the HLEC recommendation, Ms. Aishwarya Adhikari has been found guilty of

a) Giving undertaking in the false pretext to hold a “Poetry Reading- A Country without A Post Office†at Sabarmati Dhaba on 9

February 2016 from 5.00 pm to 7.30 pm

b) Lending her name in the poster titled “Against the Brahmical collective conscience! Against the judicial killing of Afzal Guru and

Maqbool Bhatt…..â€​ in the name of Cultural Evening thus arousing communal and caste feelings.

This Act on the part of Ms. Aswathi A. Nair is serious in nature, unbecoming of a student of JNU and calls for stringent disciplinary action

against her. In view of this and also keeping her career prospects in mind, the Vice Chancellor has taken a somewhat lenient view in the

matter.

Ms. Aswathi A. Nair is fined Rs. 20, 000/- (Rupees twenty thousand only) and is also warned to be careful and not to get involved in such incidents in

the future. Otherwise, a stringent disciplinary action will be taken against her. She is directed to deposit the fine by 13 May 2016 and show the proof

thereof to this office, failing which the hostel facility will be withdrawn with immediate effect and further registration will not be allowed.

The Petitioner appealed against the above mentioned Office Order vide letter dated May 02, 2016 wherein she stated that-

These charges against me are false and completely without any basis, as the object of the cultural evening was to inspire students to oppose caste

oppression and communal feelings and I did not use any false pretext for the event……………

In my responses to the HLEC, I had categorically stated that I was willing to cooperate with its proceedings provided that I was informed of the

charges against me so that I could furnish my explanation. This was never done, in fact my letters were not responded to at all. Nor was I furnished

with any of the following documents that I asked for……

It was the submission of Ms. Routray, the Petitioner was aware of the charges levied against her at the stage of show cause itself as a copy of

the HLEC report was annexed along with the Show Cause notice. Further, the Order dated 25.04.2016 stated the charges against her were of giving

an undertaking under false pretext and lending her name in the poster. However, the Petitioner only speaks of her participation in the event and giving

an undertaking on false pretext but does not give any defence with regard to her name on the poster. Therefore, there was no effective response from

the Petitioner even after the abovementioned order was passed. She submitted, further the Petitioner was not provided with copies of documents as

the University in its wisdom and in view of the atmosphere, considering the sensitivity of the matter and in the interest of the witnesses†safety only

provided for the same to be inspected before the Committee. Further, the Norms and Procedures along with SOP state that-

Members of the committee will sign a confidentiality/Non-Disclosure Statement.

Any information shared confidentially to the Committee to the Committee members will not be shared by them after the terms of the

Enquiry Committee us over.

No cell phone will be brought into the committee room when any person comes to depose before it.

No statement will be issued to the press during the enquiry period and also after the enquiry period.

All communication from the University to the Committee and vice a versa will be in writing.

Ms. Routrayâ€s submission was also that even though the Petitioner and other students were not provided with the copies of the documents at the

stage of show cause, the same was available to access had they appeared before the committee to depose. Thus, they themselves failed to avail the

opportunity provided to them.

She further submitted that at the stage of appeal the decision is to be taken only from record before the deciding Appellate Authority, Rules under

the Statute 32(5) state that the punished student has the right to appeal against the punishment and Vice-Chancellor is the empowered authority to deal

with Appeal. She would submit, the Petitioner chose not to avail opportunities given to her, both at the stage of enquiry, and at the stage of Show

Cause Notice by wilfully not responding to the same, hence the Writ Petition on this ground alone is not maintainable.

According to Ms. Routray, the Petitioner is a student studying in JNU and resident of Hostel in JNU. The Respondent No.1 is Jawaharlal Nehru

University (JNU) established and incorporated by and an Act of Parliament in the year 1966.

That at 12 pm on February 09, 2016 the Respondent got to know that some students were planning to host an “anti-national event†in the

evening at Sabarmati Dhaba. A meeting was called in the Vice Chancellorâ€s Office, wherein it was discovered that permission was sought from the

Additional Dean of Students by the Petitioner on the false pretext of holding a poetry reading competition at Sabarmati Dhaba. Despite the alleged

“permissionâ€​ immediately being withdrawn by the DOS, the Petitioner carried on with the event which led to an enormous law and order situation.

On February 11, 2016 forthwith a High Level Enquiry Committee (HLEC) was constituted by the Vice-Chancellor to enquire into the incident that

took place on February 09, 2016 in the Respondentâ€s campus. By virtue of Section 5(10) of the JNU Act read with Statute 32(1) of the Statutes of

the University-

“The Vice Chancellor has been vested with all the powers relating to discipline and disciplinary action in relation to student.â€​

According to her, the HLEC superseded the Proctorial Enquiry vide letter dated February 11, 2016 wherein it is stated that

This committee supersedes the Proctorial Enquiry Committee and the earlier notice dated 11th February, 2016 of the Chief Proctor stands withdrawn.

She submitted, the HLEC followed SOP being norms in view of the nature and the need of the enquiry. The terms of reference of the Enquiry

entailed formulation of SOP. She submitted, the SOP norms are essentially analogous to the Norms recommended for a Proctorial enquiry. The 3

Member Committee was later expanded to 5 by the Vice Chancellor mainly consisted to University Professors and since it was an internal enquiry of

JNU, no third party was allowed to be present during hearing. Further, no one was allowed to be represented by a third party. The terms of Reference

for the Committee was:

(i) To enquire into the incident and ascertain sequence of events.

(ii) Identify and lapses that may have taken place, and

(iii) On the basis of the findings, recommend action to be initiated by the University as per its statutes and guidelines.

Subsequently, on February 12, 2016 Office Order No.115/CP/2016 was passed, which stated as follows-

Based on the report submitted by the Chief Security Officer, video clipping of the events and other related documents, the High Level Enquiry

Committee, constituted by the Vice-Chancellor, JNU is of the opinion that prima facie evidence of the occurrence of the following offences exists:-

(i) Misrepresentation of the proposed event as a cultural evening although objective was to hold a political meeting.

(ii) Forcefully holding the event even when the permission to hold it was withdrawn by the DOS.

(iii) Creating a law and order situation on campus both at Sabarmati Hostel and Ganga Dhaba.

(iv) Shouting unconstitutional slogans, and making derogatory remarks about the nation.

She submitted, the HLEC followed Standard Operating Procedure devised by the HLEC specifically for the said enquiry during the course of

enquiry. The HLEC spent considerable time in examining all the evidences pertaining to the event which included taking written depositions of eye

witnesses and security officials, posters, SMS withdrawing consent to hold Anti-National event, form for seeking permission, examining the video clips

submitted by JNU Security Office and scrutinizing various documents/posters related to this incident. The video submitted to the Committee by the

CSO was duly authenticated by a Government approved agency: Truth Labs, Bangalore. Subsequent to enquiry procedure, the HLEC recommended

the Petitioner be charged under Category II of (Rules of Discipline and Proper Conduct of Students of JNU) of the statutes of the University and

imposed a fine of Rs.20,000/-. The HLEC submitted its report along with recommendations to the Vice Chancellor on March 11, 2016

According to her, the Chief Proctor, after perusing the report of the HLEC, issued a Show Cause Notice on March 14, 2016 along with an

extension dated March 16, 2016 and a copy of HLEC report to the Petitioner. According to Ms. Routray, this Court vide Order dated May 13, 2016

directed that the Order shall not be given effect till the appeals of the petitioners are heard and disposed of. Subsequently, the Petitioner was given

provisional admission to continue in the present semester keeping the view the Order dated May 13, 2016 of this Court.

She stated, the Respondent finally issued the Office Order No.201/CP/2016 dated August 22, 2016, wherein it was stated that-

On being asked by the Appellate Authority “Were you present at the Sabarmati Dhaba to attend the event on 9th February, 2016?†In

response to the above question she said that “she will not speak anything until and unless she is provided with a photocopy of all the

documents requested by her in her earlier representations to the University Authoritiesâ€. It is important to note that Ms. Aswathi A. Nair

was provided a complete set of files (Security depositions, copies of all relevant videos, copies of statements given by witnesses, copies of all

correspondence, copies of the report of the HLEC, all other documentary proof) used by the HLEC to arrive at the punishment in respect of

Ms. Nair…….

Further, the Petitioner was asked other questions however, she did not cooperate.

Ms Nair was given ample time by the committee to examine all the files before she could write her appeal and she read through these files and wrote

her appeal

Evidence-

The requisitions form to book the venue was filled by Umar Khalid and the undertaking was signed by four students, out of them one

student was Ms. Nair. Hence it was clear that Ms. Nair was one of the organizers of the event.

Misleading Chairperson CPS/SSS, Prof. Anupama Roy by citing in the requisition form that the permission was being taken for a cultural

event whereas the event which was held was of a different nature altogether.

She lent her name to be printed in an objectionable poster titled “Against the Brahmanical Collective Conscience Against the Judicial

Killing of Afzal Guru and Maqbool Bhatt…. In the name of cultural evening thus arousing communal and caste feelings.

Recommendations

Ms. Nair did not make any specific appeal to absolve herself from the charges made by the HLEC. On the contrary she questioned the

formation of HLEC itself, and asked for documents and evidence related to her involvement in the event. The committee thereupon considers

the recommendations of the HLEC on the aforesaid student highly justifiable. Therefore, the punishment recommended by the HLEC i.e.

“Fine of Rs. 20,000â€​ stands as it is. In addition to this, she has to submit an undertaking in a prescribed format to the Chief Proctor.

Ms. Routray would submit, without prejudice the allegations levied against JNU authorities in the Affidavit dated September 05, 2016 are wrong

and denied. The Petitioner in her Affidavit stated that-

90% of the files constituted depositions by the security guards and then there were documents like the reports from the truth labs on the

veracity of the videos. I also remember going though many office orders asking students and teachers to depose before the HLEC…….

Further all the depositions by the security guards were in Hindi, a language I am not comfortable in. When I told the committee members the

same, with a very condescending attitude they offered to read to me all the depositions running around 100 pages. I asked them to let me

take a photocopy of the documents so that I could consult my lawyers but they categorically refused to do so……

I also strongly objected to the manner in which a pile of files were thrown at me (mostly written in a language I can barely read) and asked

to take an informed position in a matter of 15 minutes (in a matter of 15 minutes I was given an oral English translation of all the

depositions by the security guards).

She submitted, from a reading of the above it is evident that the Respondent fully cooperated with the students, the Petitioner was read out the

depositions in order to enable her to write her Appeal. Further, the Petitioner/other students were given sufficient time to go through the documents.

The same is evident from the Petitionerâ€​s Appeal dated June 16, 2016 wherein she stated that-

I am being forced to go through a pile of files in an hourâ€s time without giving the copy of the complaint against me or the depositions of

all the witnesses, list of documents etc. it is nothing but a travesty of justice in this perfunctory and lackadaisical handling of Appeal

process.

She submitted, the Petitioner in her written Appeal before the Appellate Committee dated June 16, 2016 stated that she was given an hourâ€s time

to go through the documents; this statement of the Petitioner is highly inconsistent with what she stated in her Affidavit dated September 05, 2016 and

Rejoinder filed before this Court. She submitted, it is evident that Petitioner was shown all the documents and further depositions were read out to her.

Therefore, there was no travesty of justice as the Petitioner claims and thus, the Petitionerâ€s statement cannot be given credence to. She submitted

that the Affidavit dated September 05, 2016 is an afterthought after the order dated August 22, 2016 was passed. Had the Petitioner genuinely been

aggrieved with the procedure followed by the Appellate Committee, she could have come forward and stated the same after June 16, 2016.

It was the submission of Ms. Routray, that the Universityâ€s autonomy means its right of self-government particularly, itâ€s right to carry on its

legitimate activities without interference from any outside authority. That the petitioner against whom charges were framed was given adequate

opportunities to defend herself, and the committee followed the rules of natural justice while holding this enquiry. That it is a settled law that matters

falling within the jurisdiction of educational authorities should normally be left to their decision and this Court would not interfere unless it thinks it must

do so in the interest of justice. She stated, this Court in Jawaharlal Nehru University V. Flora Gupta, LPA 570/2012 & CM No.14010/2012 held that-

The grounds on which administrative action is subject to control by judicial review are, “illegalityâ€; “irrationality†and

“procedural improprietyâ€. The Court will be entitled to interfere in such matters if the decision is tainted by any vulnerability like

illegality, irrationality and procedural impropriety. To be “irrational†it has to be held that on material, it is a decision “so

outrageous†as to be in total defiance of logic or moral standards. If the power is exercised on the basis of facts which do not exist having

which are patently erroneous, such exercise of power shall be vitiated. Exercise of power will be set aside if there is manifest error in the

exercise or such power is manifestly arbitrary. To arrive at a decision on “â€reasonableness†the court has to find out if the

respondents have left out a relevant factor or taken into account irrelevant factors.

It was her submission, the Respondent has acted within their authority, exercised their judgement in good faith, and followed the applicable laws.

The constitutional provisions, the provisions of the Act, the Statute and the Ordinances and the principles of natural justice have been complied with by

the Respondent. The Petitioner was served with notices at her hostel, at her various addresses and was asked to show cause and was also given

opportunity to defend herself before the enquiry committee. The first notice was sent on February 12, 2016, however, the Petitioner left the campus on

February 13, 2016 as admitted by her in her letter. This conduct of the Petitioner does not attract any empathy from the authorities. The Petitioner

was given ample opportunity to defend but she herself lost the opportunity by not even responding to the simple queries raised by the Appellate

Committee.

She submitted, the Legal Submission made and judgments relied upon in Umar Khalid V. JNU, W.P. (C) 7826/2016 and Anirban Bhattacharya V.

JNU, W.P. (C) 7828/2016 may be read as part and parcel of the present submissions. The judgments are:-

(i) K.L. Tripathi v. State Bank of India and Ors 1984 (12) SCC 43;

(ii) State of Gujarat v. Pagi Bhura Bhai Rumal Bhai AIR 1969 Gujarat 260;

(iii) Ajeet Seeds Ltd. V. K. Gopal Krishnaiah 2014 (1) SCC 685;

(iv) Chief Commissioner of Income Tax (Administration) Bangalore v. V.K. Gururaj and Ors. 1996 (7) SCC 275;

(v) State of Punjab v. Bakhshish Singh 1997 (6) SCC 381;

(vi) Suresh Koshy George v. University of Kerala AIR 1969 SC 198;

(vii) State Bank of Patiala v. S.K. Sharma 1996 (3) SCC 36;

(viii) Ram Chander Roy v. Allahabad University AIR 1956 ALL 40;

(ix) V. Ramana v. APSRTC & Ors 2005 (7) SCC 335.

(x) M.V. Bijlani Vs. UOI and Ors., 2006 (5) SCC 88.

In view of the above facts and circumstances, she prayed for the dismissal of the writ petition.

Having heard the learned counsel for the parties and perused the written arguments/submissions submitted by the counsels, it is noted that the

subject matter of this petition is, the orders passed by the Competent Authority whereby a penalty in the nature of fine of Rs.20,000/- was imposed on

the petitioner, which order was upheld by the Appellate Authority with a direction to file an undertaking. The enquiry relates to the events held on

February 09, 2016 at the University Campus. The grounds of challenge by the petitioner are that the same has been held in violation of Statute 32(5)

of the Statutes of the University; proceedings have been held in violation of principles of natural justice; the action is actuated by malafide as the

University is also reviving stale proceedings by issuing notice to some of the concerned students in respect of incidents of 2015. On a reading of order

dated August 22, 2016, there is no connection between the findings of fact and violation of Rules of the respondent University. The orders have been

issued without giving the relevant material relied upon by the respective Authorities. The HLEC has prejudged the petitioner and the action taken on

the basis of the report of the Committee is not impartial and unbiased. The HLEC did not even reply to the petitionerâ€s request for documents, on the

basis of which she has been found guilty. The impugned action has serious consequences for the petitionerâ€s academic career. No Rule/Statute or

Ordinance, under which petitioner has been punished has been stipulated. The Appellate Authority premised its decision on the refusal of the students

to sign a vague undertaking that would have resulted in severe curtailment of their fundamental rights.

The respondent has justified its action by contending that the Enquiry Proceedings were held by following the principles of natural justice and the

Rules/Statutes. It is the petitioner, who failed to come forward and depose before the Committee. That apart, the respondent has also highlighted the

seriousness of the charges for which the petitioner was held guilty. That apart, the appellate proceedings were held after giving due opportunity to the

petitioner to inspect the documents and after inspection of the documents and upon hearing and inability of the petitioner to answer the queries put by

the Appellate Authority, the appellate order was passed.

There is no dispute that the petitioner had filed an Appeal dated May 02, 2016. It is also a conceded fact that the Vice Chancellor-Appellate

Authority had held its meeting on June 16, 2016. There is also no dispute that the petitioner was shown the record of the enquiry. The parties are at

variance about the duration for which the record was shown. It is a conceded fact that a hearing was given to the petitioner on the same day, which

resulted in the passing of the appellate order on August 22, 2016. It is the case of the petitioner that she wrote a letter dated June 16, 2016 to the Chief

Proctor, with a copy to the Vice Chancellor, JNU wherein she had asked for certain documents and grant her two weeks time from the date of

receipt of the documents for the deposition for the appeal. She has also stated, she was just given two days to prepare the appeal deposition, which is

inadequate.

Clause 12 of the Norms and Procedure followed during enquiry stipulates that every punished student has a right to appeal. In the case in hand,

after this Court had passed the order on May 13, 2016 in the earlier writ petition filed by the petitioner being W.P.(C) No. 4392/2016, the respondent

University issued a communication dated June 13, 2016 asking the petitioner to appeal to the Vice Chancellor and depose on June 16, 2016. The

communication does not refer to the fact that the petitioner shall be given the relevant record/documents for inspection. Be that as it may, the learned

counsel for the parties agree that the files/records/documents before the HLEC were given to the petitioner on June 16, 2016 to enable her to peruse

the same and make submissions on the same day. Even assuming, three hours were granted to the petitioner to inspect the documents on June 16,

2016, some time need to have been granted to the petitioner to apply her mind on the evidence so noted by her during the inspection, which was

against her and to make an effective appeal. Surely, for such purposes, she may have required reasonable time to prepare her case, which may

include seeking legal advice. In fact, the petitioner vide her letter dated June 16, 2016 reiterated her earlier request to make available the documents to

make appeal more meaningful. The procedure evolved by the Appellate Committee to allow inspection of the documents/records and hearing her

could not be in conformity with the principles of natural justice and the law laid down by the Supreme Court in the case of Associated Cement

Company Ltd. v. Workmen and another (1964) 3 SCR 652, wherein the Supreme Court was considering an appeal arising out of an industrial dispute

between the appellant and the respondent workman with regard to dismissal of five workmen employed by the appellant company. One of the issue

was that before the enquiry was actually held on June 11, 1952, notice was not given to Malak Ram, one of the workmen telling him about the specific

date of the enquiry. The Supreme Court held that failure to intimate to the workman concerned about the date of the enquiry may, by itself, not

constitute an infirmity in the enquiry, but, on the other hand, it is necessary to bear in mind that it would be fair if the workman is told as to when the

enquiry is going to be held so that he has an opportunity to prepare himself to make his defence at the said enquiry and to collect such evidence as he

may wish to lead in support of his defence. The Supreme Court held, on the whole, it would not be right that the workman should be called on any day

without previous intimation and the enquiry should begin straightaway. The Supreme Court held, such a course should ordinarily be avoided in holding

domestic enquiries. In other words, the Supreme Court has held that an incumbent should be given sufficient opportunity/time to consider the evidence,

which has come against him and to collect evidence in support of his defence. In the case in hand, no such time was given to the petitioner. That

apart, if the material is being shown to the petitioner, on June 16, 2016, surely, some time should have been given to the petitioner to enable her to

supplement her appeal already filed by her on May 2, 2016. This would be in conformity with the concept of fair play in action, which is the basis of

natural justice. That apart, even in these proceedings, the respondent has not filed, the complete record of the HLEC. In fact, in some of the

connected petitions, a stand has been taken in the written submissions that only certain documents relied upon by HLEC were filed before this Court

and the entire evidence, documents, notices and proceedings are maintained by the respondent in its official files. The same are available for any other

scrutiny as and when the same is requisitioned before the Court. Even if some depositions were filed along with the written arguments in some

connected cases, the same are in Hindi. Even otherwise, the HLEC report refers to deposition of some eye witnesses, which are in the deposition

files. It is not clear, who these witnesses are, who are being referred to. All the evidence, documents, notices and proceedings being in the official

files, there was no occasion for this Court/counsel for the petitioner to look into the same for a proper appreciation/justification of the impugned orders.

That apart, I note, the petitioner, in her appeal dated May 02, 2016 has raised several grounds.

A perusal of the order dated August 22, 2016, it is seen that the Appellate Authority has not dealt with the said grounds. The Supreme Court in the

case reported as (2013) 6 SCC 530 Chairman, Life Insurance Corporation of India and others v. A. Masilamani, in para 19 held as under:-

“19. The word “considerâ€, is of great significance. The dictionary meaning of the same is, “to think overâ€, “to regard asâ€,

or “deem to beâ€. Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term

“consider†postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should

reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such

application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to

affirm its order. (Vide: Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006) 11 SCC 147; and Bhikhubhai Vithlabhai Patel & Ors. v.

State of Gujarat & Anr., AIR 2008 SC 1771).

In view of the aforesaid judgment of the Supreme Court, it is expected that the Appellate Authority should have disposed off the appeal by a reasoned

and speaking order. This I say so, there is nothing in the Rule, relating to appeal which says otherwise i.e it is not necessary for the Appellate

Authority to pass a reasoned order.

Insofar as the plea of Ms. Malavika Rajkotia that the Vice Chancellor having involved in the process of enquiry at the first instance, cannot sit in

appeal against his own order is concerned, the same is without any merit for more than one reason. Firstly, the petitioner by appearing before the

Appellate Authority on June 16, 2016 has submitted to the jurisdiction of the Appellate Authority i.e. the Vice Chancellor. Secondly, the vires of Rule

12 contemplating an appeal to the Vice Chancellor is not under challenge.

Insofar as the judgments relied upon by Ms. Routray are concerned, in K.L. Tripathi (supra), the issue, which fell for consideration was with

regard to a challenge to the departmental enquiry by an employee on the ground that he was not provided opportunity to cross examine. The Supreme

Court held that in the absence of any lis as to the facts, allegations having been not disputed by the delinquent officer, no prejudice has been caused.

The issue, which has been considered by me in the aforementioned paras is only with regard to, whether sufficient opportunity was given to the

petitioner to inspect the documents at the appellate stage and then submit an appropriate appeal after the inspection, so as to make the appellate

proceedings meaningful and purposeful. Hence, the judgment would have no relevance.

Insofar as the judgment in the case of State of Gujarat v. Pagi Bhurabhai Rumalbhai (supra), is concerned, in the said case the Gujarat High Court

held that the delinquent has no right to seek a personal hearing at the appellate stage. In the case in hand, the personal hearing having been agreed to

and granted by the University, it cannot be contended by Ms. Routray that the personal hearing was not required.

In Ajeet Seeds Limited (supra), para 10 on which the reliance was placed, relates to a conclusion with regard to Section 114 of the Evidence Act,

which enables the Court to presume that in common course of natural events, a communication made would have been delivered at the address of the

addressee. A reference was made to Section 27 of the General Clauses Act, which gives rise to presumption that service of notice has been effected

when it is sent to the correct address by registered post. The said judgment has no applicability on the limited issue being considered and decided by

this Court.

In Hira Nath Mishra and others v. The Principal, Rajendra Medical College, Ranchi and another (1973) 1 SCC 805, the Supreme Court was

concerned with a case where the appellants, the male students of a Medical College lived in the College hostel. A confidential complaint was received

by the Principal from thirty six girl students residing in the Girls Hostel of the College alleging that the appellants with some others at late night had

entered into the compound of the Girls Hostel and walked without clothes on them. The Principal constituted an Enquiry Committee consisting three

Members of the staff. The identification through photographs was carried out and the Girls by and large could identify the appellants from the

photographs. The appellants were called before the Committee one after the other. They were explained the contents of the complaint. Due care was

taken not to disclose the names of the Girls, who made the complaint. The appellants denied the charges and said they were in the Hostel at that time.

The Supreme Court held as under:-

(i) The complaint made to the Principal related to an extremely serious matter as it involved not merely internal discipline but the safety of

the girl students living in the Hostel under the guardianship of the college authorities. These authorities were in loco parentis to all the

students-male and female who were living in the Hostels and the responsibility towards the young girl students was greater because their

guardians had entrusted them to their care by putting them in the Hostels attached to the college. The authorities could not possibly dismiss

the matter as of small consequence because if they did, they would have encouraged the male student rowdies to increase their questionable

activities which would, not only, have brought a bad name to the college but would have compelled the parents of the girl students to

withdraw them from the Hostel and, perhaps, even stop their further education. The Principal was, therefore, under an obligation to make a

suitable enquiry and punish the miscreants.

(ii) The Police could not be called in because if an investigation was started the female students out of sheer fright and harm to their

reputation would not have cooperated with the police. Nor was an enquiry, as before a regular tribunal, feasible because the girls would

not have ventured to make their statements in the presence of the miscreants because if they did, they would have most certainly exposed

themselves to retaliation and harassment thereafter. The very reasons for which the girls were not examined in the presence of the

appellants, prevailed on the authorities not to give a copy of the report to them. It would have been unwise to do so.

(iii) Therefore, the authorities had to devise a just and reasonable plan of enquiry which, on the one hand, would not expose the individual

girls to harassment by the male students and, on the other, secure reasonable opportunity to the accused to state their case. The course

followed by the Principal was a wise one.

(iv) Under the circumstances of the case, the requirements of natural justice were fulfilled, because principles of natural justice are not

inflexible and may differ in different circumstances.â€​

From the above, it is noted that, keeping in view the nature of allegations against the male students; to protect the identity of the complainants, the girl

students, the Supreme Court had upheld, the nature of enquiry conducted by the University as being in compliance with the principles of natural

justice. The aforesaid judgment of the Supreme Court has no applicability in the facts of this case and also on the limited issue that is being decided by

this Court.

Insofar as the judgment of the Supreme Court in the case of Suresh Koshy George (supra) is concerned, in para 7 on which reliance was placed

by Ms. Routray, the Supreme Court was considering a submission that the Vice Chancellor had not made available to the appellant a copy of the

report submitted by the Inquiry Officer before asking him to make a representation. The Supreme Court rejected the contention by holding that the

enquiry was held after due notice to him and in his presence. He was allowed to cross examine the witnesses examined in the case and he was

permitted to adduce evidence in rebuttal of the charge. The Supreme Court also held, no Rule was brought to its notice, which stipulated the supply of

report. The Supreme Court also observed that it was not the case of the appellant that he had asked for the copy of the report, which was denied to

him. The judgment relied upon by Ms.Routray is distinguishable, inasmuch as the petitioner did not participate in the proceedings/the proceedings were

held in her absence. Further, the Appellate Authority itself has offered to allow inspection of the documents/record of HLEC. The petitioner had

asked for the documents/record/material in her appeal dated May 02, 2016. The Appellate Authority having allowed the inspection, reasonable time

should have been given to the petitioner to supplement the appeal already filed by her on May 02, 2016. The judgment has no applicability, at least on

the limited issue that is being decided by this Court.

Insofar as the judgment of the Allahabad High Court in the case of Ram Chander Roy (supra) wherein reliance was placed on paras 24 and 25,

relates to the power of the Vice Chancellor to impose any punishment in maintaining the discipline of the University. There is no dispute on the said

proposition of law. Insofar as the plea that the right of cross examination was denied is concerned, the High Court held that it was not convinced that

in a case where Head of an Educational Institution takes disciplinary proceedings, it is necessary that he must give an opportunity to the student to

cross examine the witnesses, who may be examined by him in order to satisfy himself that an occasion has arisen for taking disciplinary action against

him. In matter of discipline, the Head of Educational Institution does not act as a judicial or a quasi judicial Tribunal. The Disciplinary power vested in

any Officer or the Head of an Institution is a power which is absolutely necessary for and ancillary to the exercise of administrative functions in that

capacity. Suffice to state, 32(5) of the Statutes of the University lays down the procedure. In any case, as stated above, on a limited issue, which is

being decided, this judgment would not have any applicability.

In State Bank of Patiala and Others v. S.K. Sharma (supra), Ms. Routray who relied upon para 35 to contend that no prejudice has resulted to the

petitioner on account of non furnishing her the copy of the statements of witnesses as it cannot be said that she did not have a fair hearing is

concerned, there is no dispute on the proposition, in view of the position of law noted above, but the limited time given by the Appellate Authority to

the petitioner to inspect the documents/material/record and to give a hearing on the same day would not be in conformity with the principles of natural

justice.

Surely, the Authority empowered under the Statute is required to give a reasonable opportunity to make the very purpose of the power being exercised

by such Authority meaningful.

Insofar as State Bank of Punjab and others v. Bakhshish Singh (supra) is concerned, there is no dispute that the Court cannot sit as an Appellate

Authority over and above the conclusion of the Disciplinary Authority that a particular act was a gravest act of misconduct warranting dismissal. As

stated above, on the limited issue that is being decided by this Court, this judgment would have no relevance.

Insofar as Chief Commissioner of Income Tax (Administration), Bangalore v. V.K. Gururaj and others (supra) is concerned, the said judgment is

on the proposition of deemed service, which in any case has no applicability for the reasons already stated.

Insofar as the judgment in the case of V. Ramana v. APSRTC and Ors (supra) is concerned, the same relates to the issue of judicial review with

regard to punishment. The same has no applicability in view of limited issue that is being decided by this Court.

Insofar as the reliance placed by Ms. Routray on the judgment of M.V. Bijlani (supra) is concerned, in view of the limited issue that is being

decided by this Court, this judgment would have no relevance.

In view of my above discussion, the writ petition is allowed to the extent that the Appellate Order dated August 22, 2016 is set aside and the

matter is remanded back to the Appellate Authority with a direction to grant an opportunity of inspection to the petitioner, the record of the HLEC for

two continuous days during office hours only by notifying the date and time to the petitioner for the same and upon such inspection, the petitioner shall

have one week time to file a Supplementary Appeal, upon which the Appellate Authority shall give a hearing to the petitioner on a date and time fixed

by the Appellate Authority, who thereafter shall, by considering the appeal(s) already filed by the petitioner and the Supplementary Appeal, if any,

pass a reasoned order as expeditiously as possible preferably within six weeks thereafter. Till such time, the order dated April 25, 2016 shall not be

given effect to. It is also made clear in view of the undertaking given by the petitioner in W.P.(C) No. 4392/2016 the petitioner shall not indulge in any

strike or dharna or agitation or coercive action in future in connection with the issue, till such time the proceedings between the parties attain finality.

No costs.

CM No. 32754/2016 (for stay)

Dismissed as infructuous.