Dhaniram Saikia vs The Gauhati University and Others

D.N. Baruah, J.—The Petitioner who was a candidate of M.A. (Previous) Economics Examination, 1989 has challenged Annexure-C order dated 12,7.89 cancelling the examination of the Petitioner and debarring him from appearing in the University. Examination for the subsequent year and also Annexure-E order dated 13.7.90 rejecting the review application, passed by the second Respondent and has prayed for issuance of an appropriate writ or direction in this writ application under Article 226 of the Constitution. The facts of the case may be briefly stated as follows:

The Petitioner appeared in M.A. (Previous) Economics Examination from Cotton College Centre in 1989. By Annexure - ''A'' notice dated 3.5.89, the Petitioner was asked to show cause by the second Respondent as to why appropriate action should not be taken against him for infringement of the Examination Rules. In the said notice, the Petitioner was also informed that there had been allegation against him that he was found to have copied from manuscript loose sheet in Economics Paper. The Petitioner in his reply to the show cause to the notice (Annexure-A) dented the allegations made against him and contended, inter alia, that the entire incident was an accident without any mens rea. The Petitioner categorically stated that he had not copied a single line from the loose sheet of paper, which he had placed in his table by mistake treating it to be an Admit Card. He, further, stated that he was a victim of fate as the entire incident was a result of pure accident. In fact, according to the Petitioner, by mistake he left his Admit Card at home. However, the second Respondent by Annexure-C order dated 12.7.89 cancelled the examination of the Petitioner and had debarred him from appearing in examination in subsequent years. According to the Petitioner, this was done without giving any opportunity to defend himself and to, prove his case as put up in Annexure �''B'' Petitioner took the stand that the entire incident had been the result of a pure accident. He kept the loose sheet on the table by mistake, treating it to be an Admit Card. Before passing the Annexure -''C'' order, no witness was examined in presence of the Petitioner. Besides, the reports and statements made against the Petitioner were used without giving the Petitioner an opportunity to cross-examine. The report and statements were not made available to the Petitioner. Annexure -''C'' order was passed in complete violation of the principles of natural justice. On receipt of the said order, the Petitioner submitted a review application before the Vice Chancellor, Gauhati University praying for review the Annexure -C order. In the review application, the Petitioner pointed out that impugned order was passed most mechanically without any consideration of the relevant facts and also in complete violation of the principles of natural justice. Even after submission of Annexure-''D'' review application, no opportunity was given to the Petitioner by the 1st Respondent. 1st Respondent also disposed of the said review application had been passed mechanically without considering the argument and submission made by the Petitioner in his defence. The decision of the 1st Respondent was communicated to the Petitioner by Annexure - ''E'' order dated 13.7.90. According to the Petitioner, all the facts of the case, if considered in proper perspective, it would reveal that he had at no point of time copied from the manuscript loose sheet as alleged. The Petitioner, further, stated that he was allowed to sit in Room No. 124 from where it was almost impossible to adopt unfair mews as alleged in as much as the invigilators were very much active. He further stated that on the date of examination, he was late by 10 minutes. Petitioner hurriedly reached the examination hall and had rushed inside the room. He took his seat and found that the answer scripts had already been distributed. The Petitioner was slightly nervous because of the delay, but had started writing his answer script. While he was writing the answer script, he saw that Invigilator checking the Admit Cards and Roll Nos. in the bench just in front of him. As such, he took out his Admit Card from his pocket and thereafter had continued writing the answer script. The Invigilator came to the Petitioner and had asked him for Admit Card. The Petitioner pointed out the Admit Card on the table. While opening up the papers, Invigilator found that it was not an Admit Card, but a sheet of paper where there were some jottings. During all these periods, the Petitioner believed that the paper which he had carried in his pocket and placed on the table was an Admit Card. However, it turned out to be a noting of some answers. This, according to the Petitioner, was genuine mistake. When the Petitioner was taken to the Common Room, he had been totally dazed. During the entire academic career nothing of the like nature over happened to the Petitioner. Looking from the performance in various examinations, it would be evident that there was absolutely no instance on the part of the Petitioner to adopt unfair means. During that period the Petitioner was totally upset. Under these circumstances, the Petitioner was virtually forced by the concerned officer to sign on a blank sheet of paper in which certain admissions had been typed out later. In spite of his vehement objection, the Petitioner was forced to write a letter addressed to the In-charge (Examination), Cotton College, begging pardon accepting the allegations. Petitioner was also threatened by the concerned officer that if he would fail to do what they dictated, the Petitioner would be handed over to the police.

1st Respondent through the second Respondent cancelled the examination of the Petitioner and also debarred him from appearing in the examination for the subsequent year, without considering the case of the Petitioner. Hence, the present petition.

Respondent Nos. 1 and 2 have filed counter affidavit controverting the averments made in the petition. They justify the action taken by them. Respondent Nos. 3-6 also have challenged the averments made in the petition. According to the Respondents, the action taken by them was reasonable and in accordance with the provisions of the Ordinance on the Conduct of Examination Act. The Respondents, further, stated that the possession of loose sheet in connection with the examination which was admitted by the Petitioner himself was sufficient to hold that the Petitioner had violated Rule 52 and he is liable to be punished,

I have heard both sides, Mr. N. Dutta, learned Counsel appearing on behalf of the Petitioner submitted that the examination Of the Petitioner was cancelled by Annexufe -''C'' order arbitrarily and in complete violation of w principles of natural justice. No opportunity was given to the Petitioner to substantiate his case. Besides, the review application filed before the 1st Respondent was also dealt with most mechanically without proper application of mind, By Annexure - ''E'' order dated 13.7.90 the review application was dismissed without giving any reason whatsoever. Mr. S.N. Medhi, learned Counsel appearing on behalf of 1st and 2nd Respondents, on the other hand, submitted that as the Petitioner had already admitted this guilt, there was no necessity of giving an opportunity of hearing, He having Emitted that he carried the nothings, the action taken by Respondents were just proper and there cannot be allegation of violation of principles of natural justice.

On the rival contentions of the learned Counsel of both sides, it is to be seen whether the impugned Annexure - ''C'' order can be sustained in law. As per Annexure - ''C'' notice the Petitioner was found to have copied from the manuscript loose sheet and, accordingly his examination was cancelled and he was debarred from appearing at any University examination in the subsequent years. In the Annexure -''B'' reply to the show cause notice, the Petitioner had specifically stated that he pointed out the aforesaid manuscript to the Invigilator as his Admit Card and only when it was opened by the Invigilator, it was found to be some notings in connection with the examination and not an Admit Card, It was, further, contended in his reply that he reached examination hall 10 minutes late and by that time question papers had already been distributed and other students had started writing the answers. He also started writing the answer script and unmindful to other things. When the Petitioner was taken to the Common Room, he claimed to have stated that he had been threatened by the Invigilator and In-charge to write in a blank paper and because of the threatening, he was compelled to write in the blank paper. This allegation against the authorities may be absolutely false, but the possibility of/this allegation cannot be ruled out. Therefore, without giving an opportunity of hearing to the Petitioner to substantiate his case, the 2nd Respondent was not justified in passing the impugned Annexure � ''C'' order. Review application filed by the Petitioner had also not dealt with properly. The order only indicates that in all probability it was passed without proper application of mind. Annexure � ''E'' order does not show as to why averments made in Annexure- ''B'' and ''D'' ate rejected. Besides, as per the notice to show cause (Annexure -A), the Petitioner was found to have copied from manuscript loose sheet, but the records indicate that the Petitioner was found in possession of the manuscript loose sheet.

Mr. N. Dutta, learned Counsel has placed reliance on the following:

1) 1970 ALR 1 The Gauhati University v. Paban Rajkonwar).

2) 1973 ALR 49 (Naren Das v. The Gauhati University and Ors.

3) Tribendralal Choudhury Vs. Gauhati University and Others, (Tribendralal Choudhury v. Gauhati University).

4) 1987 (2) GLR 372 (Nilmani Dutta and Ors. v. State of Assam and Ors.)

5) 1991 (2) GLJ 175 (Md. Hukum Shan Ali Boxi v. Gauhati University and Anr.)

In case reported in AIR 1983 (Gau) 73 (Supra), a Division Bench of this Court had the occassion to dual with similar matter. In the said Case, this Court set aside and quashed an action of University for not affording any opportunity as r regards the alleged adoption of unfair means and assault of an Invigilator.

In another case Gauhati University v. Paban Rajkonwar reported in 1970 : ALR, 1, the Supreme Court set aside the impugned order passed by the University, Authority debarring all candidates from appearing in the examination for similar reason. In the said case, in reply to the show cause, the candidates desired to examine all the answer scripts by a handwriting expert, but the authority denied such opportunity to them to prove against the charge as alleged.

By these decisions Mr. Dutta made an attempt to show that if any order is passed in violation c f the principles of natural justice, such order is not sustainable in law and liable to be set aside and quashed. In the case in hand, the Petitioner raised a plea that he was threatened by the Invigilator and the In-charge that unless he would sign in blank paper, serious action would be taken against him. Besides, he also stated that lie had sincerely kept the notings under mistaken belief that it was an Admit Card and not the notings. The Petitioner, in his reply to the show cause, specifically look the plea that no opportunity was given to him to substantiate his case.

These are the specific averments made by the Petitioner before the authority had taken the actions. Petitioner deserved reasonable opportunity to substantiate his case but authority denied the same. Thus, there is violation of the principles of natural justice. Principles of natural justice is fundamental in the constitutional set up of this country. No man or no man''s right should be affected without an opportunity to ventilate his views. Justice is a psychological yearning, in which men seek acceptance of their viewpoint by having an opportunity of vindication of their viewpoint before the forum or the authority to take decision affecting their right.

In view of the above, 1 find that the impugned Annexure ''C'' and ''E'' order are not sustainable in law and accordingly, I set aside the Annexure - ''C and ''E'' orders dated 12.7.89 and dated 13.7.90. No costs.