Harbans Singh Nirmal vs Punjab University and Others

Inder Dev Dua, J.—The Appellant who is employed as a Clerk In the office of die Senior Subordinate Judge, Sangrur, as'' is apparent from the judgment of the learned Single Judge, was a student of L.L.B. Class of the Punjab University Law College, Chandigarh, in the year 1961-82 and took that examination in April, 1962. On 29-4-1962. he received a copy of the letter addressed by the Principal, Law College, Chandigarh, to the Senior Subordinate Judge, Sangrur, requesting that the Petitioner be sent to the Principal for recording his statement as he was alleged to have been involved in a serious case. The Petitioner in pursuance of this letter, actually came to Chandigarh and his statement was recorded by the Principal, Punjab University Law College on 9-5-1962. On 19-5-1962 the Syndicate of the Punjab University, Respondent No. 2, accepted the recommendation of the Vice Chancellor, Respondent No. 3, and resolved that the candidature and result of the Appellant be cancelled and he be disqualified for a period of one year. I may also observe that since the result of the Petitioner had not yet been announced, the resolution in substance meant cancellation of the Appellant''s candidature.

The Appellant received this letter on 23-6-1962 from the Office Superintendent (Results), Punjab University, whereupon the Appellant sent a representation to the Vice Chancellor for reconsideration of his case against his disqualification on the ground that he had been punished illegally. A second representation was also sent by the Appellant to the members of the Syndicate of the University with a copy to the Vice Chancellor for reconsideration of his case, contending the punishment imposed to be contrary to the regulations of the Punjab University. This representation was rejected and the Appellant was intimated that the Vice Chancellor had after looking into his case ordered that the punishment had been rightly imposed.

The Appellant approached this Court under Articles 226/227 of the Constitution on the allegations just mentioned challenging the impugned order on the ground, inter alia, that it was arbitrary and opposed to the principles of natural justice.

In the written statement sworn by the Registrar of the Punjab University, it was pleaded that the case against the Appellant and one Avtar Singh Chahal, another student of the Law College, had been started on a written complaint of a girl of a local school addressed to the Vice-Chancellor of the Punjab University alleging that on 28-3-1962 at 12 noon, she had been harassed and teased by the Appellant while she was coming on a cycle towards Sector No. 16. On this complaint, the Principal University Law College was directed to make a report on the subject. Avtar Singh Chahal''s identity had been revealed on the spot at the time of the incident because some pages from his book lying on the carrier of his cycle were snatched by the girl, with the result, that on the said Avtar Singh Chahal having been examined by the Principal of the Law College on 27-4-1962 the identity of the Appellant was disclosed by him. On receipt of the report from the Principal, the Vice-Chancellor of the University ordered that the results of these two candidates be not declared till after the, decision of the Syndicate on the complaint against them. When, the Appellant was sent for, allegations against him and Avtar Singh were fully, disclosed to him and he gave a statement in his defence in his own handwriting on 9-5-1962 to the Principal of the Law College.

On a reconsideration of the entire case on the Appellant''s representation, the Syndicate of the Punjab University'' has, according to the, written statement, since decided that the disqualification if the Appellant and of Avtar Singh Chahal be can celled and the punishment awarded to them should merely consist of cancellation of their results. Here, it may again be pointed out that it is really cancellation of their candidature because the results were never declared. Due intimation of this decision has also been stated to have been given to the Appellant in September, 1962 under registered A.D. Post. According to the reply, the conduct of the Appellant is covered by the regulation under which action has been taken against him.

The only contention raised before the learned Single Judge on behalf of the Appellant was that the principles of natural justice had been violated inasmuch as the Petitioner had not been given any opportunity of being heard and of defending himself. This aspect was elaborated by the submission, that the copies of the allegations made against him and of the statements of the other witnesses were not supplied to him, the enquiry was held ''n his absence and he was afforded no opportunity of cross-examining the witnesses produced; and he was not even asked to produce his defence. Proceedings having been held ex-parte and the order passed behind his back, the Appellant complained that the order was liable to be quashed Reliance before the Single Bench was placed on a decision of die Supreme Court in Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, . The learned Judge after hearing the parties came to the conclusion that the Appellant''s grievance was without merit because the Appellant had admitted his presence on the spot and had given his own version of the incident. The Principal of the Law College had also recorded the statement of the teacher who was an eye-witness of the occurrence and some pages of the book belonging to Avtar Singh Chahal revealing his identity snatched at the spot by the girl were also produced before the Principal. It was on this material that the Principal had sent his report to the Vice-Chancellor who, after going through the material, made his own recommendation to the Syndicate. The entire material was then placed before the Syndicate which passed the impugned order after considering all the facts. The Appellant''s representation made later was also placed before the Syndicate and the decision was reconsidered as a result whereof the Appellant was given some relief in the form of quashing the order of disqualification. On the basis of these circumstances, the learned Single Judge came to the conclusion that the Appellant had been afforded an opportunity to explain his position with regard to the allegations made against him. The decision of the Supreme Court in Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, was distinguished and the ratio of Surincler Kumar Bunsal v. Punjab University 1962-04 Pun LIR 944 was relied upon in dismissing the writ petition.

On appeal before us, the learned Counsel has repeated the same submission which was urged before the learned Single Judge. II has been emphasised that no show cause notice was given to the Appellant, nor was any copy of the details of the alleged serious case against him given to him; nor indeed was the statement of any witnesses against him recorded in his presence. All that happened was that the Principal of the Law College recorded his statement on 0-5-1962. This procedure, according to Shri U.S. Sahni, learned Counsel for the Appellant, is violative of the elementary rule of natural justice, thereby rendering the impugned action of the University liable to be quashed in the present proceedings.

It may be pointed out that the Appellant''s counsel has not contended that the allegation against the Appellant, if proved, would not fall within the purview of Regulation 3-B of subpart (vii) of Part D of the Regulations framed u/s 31 of the Punjab University Act and indeed he has expressly stated that if the allegations are proved, then he would be liable to be proceeded against under the said provision; the only point on which stress has been laid is that the Appellant has not been given a reasonable opportunity of hearing and, therefore, the procedure adopted is tainted with the vice of violation of rules of natural justice. In support of his contention, the learned Counsel has referred us to a number of reported cases. To begin with, reference has been made to the oft-quoted decision of the Supreme Court in Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, and particular reliance has been placed on the following observations at p. 1115:

Considering, therefore, the serious effects following the decision of the Committee and the serious nature of the misconduct which may be found In some cases under Rule 1(1), it seems to us that the Committee must be held to act judicially In circumstances as these. Though, therefore, there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act Judicially, the manner of the disposal, based as ft must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act Judicially In this matter particularly as it has decide objective lacertian facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under Rule 1(1).

The Court formed the opinion that in exercise of the quasi-judicial power, the principles of natural justice requiring the examinee to be heard applied to the proceedings before the Committee. I may point out here that after referring to various decisions including Local Government Board v. Ariidge (1915) AC 120, the Supreme Court proceeded to observe:

But where quasi-judicial duties are entrusted to an administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee.

Reference is next made to General Medical Council v. Spackman (1943) AC 627, a decision by the House of Lords dealing with the action taken by the General Medical Council for removing the name of a medical practitioner from its register on account of a decision in divorce proceedings. The learned Counsel read various passages from the speeches of the various Law Lords for the purpose of emphasising that the University authorities in the case in hand were bound to hear the Appellant and all relevant witnesses and other evidence that he may wish to adduce before them because the statute throws on the authorities concerned a duty of holding due enquiry and of judging the Appellant''s guilt. The counsel has laid stress on the contention that there is no appeal from the decision of the University authorities and the tremendous power exercised by them may ruin a young man''s career both financially and socially. It is, therefore, urged that the University authorities in the case in hand should have examined the witnesses against the Appellant in his presence and offered to him an opportunity to cross-examine them and also to produce his own defence witnesses.

I may also observe that the facts which faced the House of Lords in the case cited were very much different and the general observations made therein can afford no helpful guidance in dealing with the case before us. The observations in the earlier decisions of the House of Lords which were reproduced in the various speeches of the Law Lords, on the contrary, clearly suggest that in enquiries like those before us, the Tribunal is not bound to treat them as if it is a trial before Courts. It can obtain information in any way it thinks best but of course it must give a fair opportunity to those who are parties to the controversy for creating or contradicting any relevant statement prejudicially to their view.

The next decision on which great reliance has been placed by the Appellant''s counsel is Ram Chander Singh Vs. Punjab University, Chandigarh, in which a learned Single Judge of this Court while quashing the order of the Punjab University on the ground that no adequate opportunity had been given to the Petitioner there to show cause against the action to be taken against him observed that:

In all fairness to him, therefore, the only appropriate thing for the University was to send a copy of the report submitted by the Superintendent or otherwise bring its contents to his notice and give him an opportunity to show cause against die action on the basis of the report.

It is on this sentence that emphasis has been laid by the learned Counsel for the Appellant. The learned; Single Judge, however, proceeded to observe:

As to the manner in which this opportunity should be given is a matter which is for the University to determine by its regulations or otherwise. It is, however, necessary that the Respondent while performing its duties as a quasi-judicial body in the matter of the kind that is in hand must conform to the principles of natural justice and give an adequate opportunity to the other party of presenting his case before a decision is taken against him which may adversely affect his future career.

The learned Judge then referred to a Division Bench decision of this Court in 1962-64 Pun LR 944 and distinguished it on facts.

Reference has then been made to a decision of the Court of Appeal in Errington v. Minister of Health 1935:1 KB 249. In this case, keeping the facts apart the ratio of Alridge''s case 1915 AC 120 and of Board of Education v. Rice (1911) AC 179 were applied and followed. Stress has also been laid on a decision of the Privy Council in Ceylon University v. Fernando 1960-1 All ER 631, and it has been contended that according to the ratio of this decision, the Appellant should have been given an opportunity of adducing evidence. The last decision cited is Union of India (UOI) Vs. T.R. Varma, which relates to a service matter and support has been sought from head-note (e) for the submission that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that, he should be given an opportunity of cross-examining the witnesses examined by that party.

On behalf of the Respondents, reference has been made to Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, , Fedco (P) Ltd. and Another Vs. S.N. Bilgrami and Others, , an unreported decision in Ramesh Kapur v. Punjab University, C.W. No. 1332 of 1963, D/- 24-10-1963 (Punj) and to the judgment prepared by my learned brother Khanna, J. sitting with Mehar Singh, J. in another unreported decision in Karamjit Kaur v. Punjab University, C.W. No. 1911 of 1963. D/-20-11-1963 (reported in AIR 1964 P&H 327).

The counsel for the parties have laid stress on selected passages from the various judgments relied upon by them in support of their respective contentions. I may here point out that to discover the ratio decided of a judicial decision is ethical and is creative evaluation rather than mechanical application of the precedent. Not everything contained in a judicial decision is a source of law for later cases. Observations upon some broader aspects of the law relating to the problem posed before a Court or answers on hypothetical questions canvassed during arguments or some comments on social or other questions may be found in prior judicial decisions; but the ratio decidendi of a decision binding for later cases is to be found in the principle of law formulated in the earlier decision which forms the basis for deciding the problem before the Court. Further extension of a precedent is in my view subject to a continuous review in the light of logical analysis and differences of facts etc., involved in subsequent judicial controversies. I accordingly consider it not very fruitful and, therefore, unnecessary to refer in detail to the facts of-the various English decisions cited which, strictly speaking, have merely persuasive value for us. Suffice it to say that the basic principles enunciated in Arlidge''s case, 1915 AC 120 and Rice''s case, 1911; AC 179 have been, approved and adopted by our Supreme Court, the decisions of which have a binding authority in this Republic.

The oft-quoted words of Lord Shaw from his speech in Arlidge''s case, 1915 AC 120 may fruitfully be reproduced:

The words ''natural justice'' occur in arguments, and sometimes in judicial pronouncements in such cases. My Lords, when a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a statute prescribes die means it must employ them. If it is left without express guidance it must still act honestly and by honest means. In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading. In so far as the term ''natural justice'' means that a result or process should be just, it is harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous.

Lord Parmoor, in the same case, in his speech observed:

It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice.

Though justice may be relative, its standards being variable with time, place and circumstances and it may be somewhat unsafe to be too dogmatic about its perennial qualities, the irreducible minimum of justice is known to mankind as a necessary moderating force in all human relationship in all conceivable societies, for life without some principle of justice appears to me to be not liveable. The broad fundamental principle of natural justice which concerns us is that a man has a right to be heard: audi alteram partem The principle underlying this sacred maxim embraces the whole notion of fair procedure, is almost of universal validity and is capable of or general elaboration in detail. Without incompatibility it has been transplanted, if I may so put it, fro its-native judicial soil into administrative territory. This seems to have been inspired by the sound rule that drastic power should be exercised with; due consideration for those who may suffer, the rule of fair hearing as a duty has, however, its practical difficulties when applied to administration, and indeed Arlidge''s cases, 1915 AC 120 as I read it, represents re-action against judicialization of administrative procedure.

In order to conform to this rule of natural justice, the person against whom action is to be taken must have notice, for that is the first limb of hearing. No man must be dealt with to his material disadvantage without fair, adequate and sufficient notice of what is alleged to his detriment and of having an opportunity of answering or meet-tag the allegation. Such notice must accordingly be real and definite. Hearing, however, does not necessarily imply personal or oral hearing, unless the statute expressly or impliedly so indicates, which admittedly is not the case before us. As I understand from the ratio decidendi of binding authorities, the requirement of the rule of natural justice, when applied to bodies like the University, what is required is that the person to be proceeded against should be given an adequate or fair opportunity to rebut or explain the case against him; and as to whether in a given case the opportunity is adequate and fair must, from the very nature of things, depend on a variety of circumstances.

As observed in the case of Fedco (P) Ltd. and Another Vs. S.N. Bilgrami and Others, the Court''s conscience must be satisfied that the person against whom an action is proposed has had a fair chance of convincing the authority proposing to take action against him that the grounds on which the action is proposed are either non-existent or if they exist, they do not justify the proposed action. Such a decision must necessarily depend upon peculiar facts and circumstances of each case including the nature of the action proposed, the grounds on which the action is proposed the material on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the �(sic) raised by him in reply, the requests for further opportunity that may be made by him, his admissions by conduct or otherwise of some or all the allegations, and all other matters which assist the mind to coming to a fair conclusion on the question.

Merely because in pertain reported cases, in their own settings, examination of witnesses in the presence of the person against whom action is proposed to be taken, their cross-examination and offer of opportunity of producing witnesses in defence etc., have been considered necessary, does not mean that in all cases where this procedure not adopted, it must necessarily be held, as a matter of law, that there is non-compliance with the essential rules of natural justice, thereby invalidating the action taken.

Even accepting without demur that the rules of natural justice do not change from tribunal to tribunal, it must be pointed out that the basic purpose of conforming to the rules of natural justice being to safeguard the position of the person to be proceeded against, the nature of the enquiry, his own status and position and other relevant factors, must have considerable bearing on what should in a given case constitute the minimum requirement of such rules. For instance, in cases of industrial dispute, (he employer''s likely inclination to victimise the employee tends to induce the Court to scrutinise somewhat more closely that the enquiries are not reduced to empty formality.

In the case in hand, the Appellant''s statement was recorded by the Principal of the Law College; indeed the whole statement is in the handwriting of the Appellant himself and therein he admitted his presence along with Avtar Singh at the spot at the time of the occurrence. The covering letter from the Principal to the Vice-Chancellor dated 14-5-1962 clearly states that the Appellant had practically admitted the allegations himself, with the result that no further investigation was necessary. The Appellant had -also been identified by the girl''s tutor, Shri Gupta from his photograph in the college record. It appears to me clear on the existing record that the Appellant was informed of the allegations against him and he was afforded full and adequate opportunity of meeting the allegations against him. He did not ask for any opportunity of cross-examining the girl''s tutor who was admittedly present at the spot or anyone else, nor did he desire to produce any witnesses to rebut the version given by the girl and her tutor.

Being a student of the Law College and also being employed in a Court of Subordinate Judge, I do not think mere is any reasonable ground for supposing that (he Appellant was ignorant of the allegations against him and that the omission to examine the girl and her tutor in the presence of the Appellant has, on the facts and circumstances of this case, deprived him of an opportunity of adequately presenting his case and thereby occasioned failure of the essential rule of natural justice In die circumstances, I fully agree with the conclusions of the learned Single Judge and dismiss the appeal.

Before dosing the judgment, I consider it appropriate to point out that recently a large number of petitions under Article 326 have been presented to this Court against the University challenging its action against the examinees, and in each case the main basic challenge has invariably been sought to be founded on violation of the rule of natural justice in not giving the aggrieved party a fair hearing. Though mere absence of precise rules for such enquiries may not by itself attract the challenge of failure of natural justice, never theless, for the guidance of its officers entrusted with such enquiries, if for no other reason, the University might well consider the desirability of framing some more precise and definite rules of procedure for the purpose. Decision in such matters must be given in the spirit and with a sense of responsibility of a Tribunal with a duty to mete out Justice, undeflected by prejudice, interest or caprice. For this purpose, it is necessary to preserve a judicial temper and treat the matter to a judicial spirit. Sense of justice may not come of all men by automatic Infallible instinct; it comes by, to reproduce the well-known expression "reason tested by experience and experience developed by reason." Judicial process "can more easily find expression Id administrative sphere by prescribing some rules of procedure for guidance.

It may also aptly point out that the system of democracy under Rule of law adopted by our Constituent Assembly after long deliberation can work on the right lines only when the citizen to educated, trained and taught to live the life of a democrat. Mere theoretical knowledge of the essential ingredients of our pattern of democracy without actual practice would be meaningless; and pimple lip homage to and spoken professions or democratic way of life unaccompanied by its adoption in actual life is fraught with grave dangers, us it; tends to encourage hypocrisy and untruth which is the opposite of truth and justice and has thus a nation-wide demoralising influence. India, it may be-remembered, is now passing through a transitional period and if our. democratic Republic under Rule of law is to develop and grow to its full healthy stature, our homes, our governmental administration, and our educational institutions and bodies connected with or controlling them must effectively and conscientiously play their due and proper role in adequately training the Indian youth on proper lines; The fact that the Petitioner and his companion though connected with Courts of law and justice and also being law students, have behaved the way they have done, demonstrates the most urgent need of drawing the nation''s attention to this vitally important aspect I need not pursue the., scatter further on this occasion.

With these observations, this appeal fails and is hereby dismissed but without costs.

H.R. Khanna, J.

I agree with the conclusion arrived at by my learned brother as well as the reasons given therefore.