Kanwal Krishen Dhar vs University of J. and K. and Others

Jaswant Singh, J.—This is a petition for review of the order dated 19-6-1968 passed by us dismissing in limine the Writ Petition No. 53 of

1968 filed by one Kanwal Krishen Dbar and arises in the following circumstances:

The Petitioner was a candidate in the Pre-University examination of the University of the Jammu and Kashmir held in November, 1967. On the

13th November of the said year, while appearing in Physics Paper B, the Petitioner was detected by the Deputy Superintendent of the S.P.

College Centre, Main Hall Srinagar, copying from some objectionable material. The Deputy Superintendent rushed to the seat of the Petitioner and

on searching his Answer Book, he found three written chits, which he immediately seized. The Deputy Superintendent also seized the Answer

Book in which two questions had been copied from the objectionable material. The Deputy Superintendent then offered another Answer Book to

the Petitioner which he refused to accept. The matter was brought to the notice of the Superintendent of the Examination Centre who in turn

reported the matter to the University for necessary action. Before doing so, necessary inquiries were made and the Petitioner was informed of the

allegations and was given an opportunity to explain his conduct, but he refused to make any statement and instead threatened the Deputy

Superintendent and the Superintendent with dire consequences. On receipt of the report of the University, the matter was referred to the Unfair

Means Committee.

After considering the matter, the Committee tentatively recommended that notice be issued to the Petitioner to show cause why he should not be

disqualified from appearing in any examination for three years. The Syndicate of the university thereupon considered the matter and caused notice

No. F-11(1)-68(SE) dated 6-2-1968 to be served on the Petitioner through the Deputy Registrar of the University to show cause why he should

not be disqualified from appearing in any examination for three years, namely 1967, 1968 and 1969. The Petitioner replied to the notice denying

the allegations and characterising them as baseless and fabricated.

In conclusion he prayed that he be allowed to go through the case along with his counsel and to defend himself before the ""Unfair Means

Committee"". The reply received from the Petitioner was in due course placed before the ""Unfair Means Committee"" who after consideration of the

matter in light of the reply received from the Petitioner recommended that the Petitioner be disqualified from appearing in any University

examination for two years. The Syndicate thereafter issued Notification No. F.B. VIII (68) KS dated 31-5-1968 disqualifying the Petitioner from

appearing in any university examination for a period of two years viz. 1967 and 1968. Aggrieved by this Notification, the Petitioner filed the

aforesaid petition for issue of a writ of Certiorari quashing the notification. This writ petition was dismissed by us in limine on 19-6-1968 as it did

not disclose any good ground for admitting the same. The Petitioner has now filed a petition for review of the said order.

After a preliminary hearing and allowing an opportunity to the Petitioner to amend his petition, we thought it fit to issue a notice to the

Respondents in regard to the review petition. The Respondents have appeared before us through Mr. J.N. Bhan and have filed two affidavits

namely one of Shri B.L. Dhar (Bagati) Lecturer in Chemistry S.P College Srinagar who was the Deputy Super intendent of the Examination centre

where the Petitioner was appearing as a candidate and the other of Shri G.M. Mir Deputy Registrar of the J. and K. University. The learned

Counsel for the Respondents has also placed before us the Answer Book and the objectionable chits recovered from the Petitioner.

Mr. Tassadque Hussain, appearing for the Petitioner has canvassed three points before us. In the first instance he has contended that the High

Court had no power to summarily dismiss the petition. He has further contended that a false case was engineered against the Petitioner by Mr.

B.L. Dhar (Bagati) Deputy Superintendent of the Examination Centre S.P. College, Srinagar, who was on inimical terms with the father of his client

and on coming to know that Mr. Bagati had been appointed as Deputy Superintendent of the Centre and apprehending trouble at his hands, he

approached Mr. G.M. Mir, the Deputy Registrar of the University for change of the Petitioners centre. Lastly he has urged that the impugned

action could not be taken against the Petitioner without conforming to the principles of natural justice and giving him an opportunity of defending

himself before the Unfair Means Committee. He has in this connection invited our attention to Statute 48 of the University.

All these contentions have been vehemently refuted by Mr. J.N. Khan, learned Counsel for the Respondents.

We have given our earnest consideration to the matter and are of the opinion that there is no substance in the contentions of the learned Counsel

for the Petitioner.

Regarding the first contention of the learned Counsel for the Petitioner, it may be mentioned that it is not obligatory on the High Court to admit

all the writ petitions. It can on finding that there is no substance in the petition dismiss the same in limine. In Tata Engineering and Locomotive

Company Ltd. Vs. Assistant Commissioner of Commercial Taxes and Another, , it was held that the jurisdiction of the High Court under Article

226 of the Constitution is extraordinary and has to be used sparingly. In spite of the very wide terms in which this jurisdiction is conferred, there

are certain well recognied limitations on this power. The jurisdiction is not appellate and it cannot be a substitute for the ordinary remedies at law.

Nor is its exercise desirable if facts have to be found on evidence. It is further well settled that even in the absence of a specific rule, it is competent

for the High Court to dismiss an application under Article 226 of the Constitution of India corresponding to Section 103 of the State Constitution,

where no prima facie case is shown. In the present case, in his reply to the Show Cause Notice No. F-11-165/SF dated 6-2-1968, the Petitioner

had nowhere made any allegation of mala fides or alleged that the Deputy Superintendent was inimically disposed towards him or that he had tried

to implicate him falsely in this case. In view of this and the further fact that the Petitioner had reasonable opportunity of offering an explanation, we

did not find any good ground for admitting the petition and dismissed the same. We, therefore, find no force in the first contention of the learned

Counsel for the Petitioner which is repelled.

Regarding the allegation levelled against B.L. Dhar (Bagati) by the Petitioner, it may be mentioned that Shri B.L. Dhar (Bagati) has filed an

affidavit categorically re-pudiating the allegations levelled against him. He has denied that he bore any animosity with the father of the Petitioner or

that he did anything maliciously. He has further stated in very clear terms that he did not bear any ill will or animosity towards the Petitioner. He has

further stated that on finding the Petitioner restless and trying to throw away some material he rushed to his seat and recovered three pieces of

paper from which the Petitioner had copied his answers to Question No. 2 Part B and Question No. 11 Part B of Physics Paper B. He has further

stated that he seized the objectionable material and the answer book and offered another answer book to the Petitioner which he refused to

accept. He has further stated that he forwarded the answer book and the material recovered from the candidate to the Superintendent of the centre

who reported the matter to the university, that before reporting the matter to the university necessary inquiries were made and the Petitioner was

given an opportunity to make a statement in regard to the occurrence but the Petitioner refused to do so and instead created a scene at the

examination centre by threatening him and the Superintendent.

Mr. G.M. Mir, the Deputy Registrar of the Jammu and Kashmir University has in his affidavit categorically denied that the Petitioner or his

father ever came to him for the change of examination centre of the Petitioner. He has further stated that the Petitioner or his father never

approached him or told him that he apprehended that Shri B.L. Bagati (Dhar), the Deputy Superintendent of the Centre, would falsely implicate the

Petitioner because of his enmity with him. It has also been stated by Shri G.M. Mir that no such complaint was made even by the Petitioner

personally or by any other person on his behalf.

On the materials placed before us, we are satisfied that the allegation made by the Petitioner that Mr. B.L. Dhar (Bagati) falsely tried to

implicate him is entirely baseless and is merely a ruse to escape the consequences of the action taken against him by the University for using unfair

means. The second contention of the learned Counsel for the Petitioner is, therefore, rejected.

Let us now proceed to consider the third contention raised by the learned Counsel for the Petitioner. Before examining the question as to

whether the principles of natural justice have been violated in the present case, it is necessary to refer to a few rulings.

In the New Prakash Transport Co. Ltd. Vs. New Suwarna Transport Co. Ltd., , their Lordships of the Supreme Court observed as follows:

The question whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the Constitution of the

statutory body which has to function in accordance with the rules laid down by the Legislature and in that sense the rules themselves must vary.

These observations were reiterated by their Lordships of the Supreme Court in Nagendra Nath Bora and Another Vs. The Commissioner of Hills

Division and Appeals, Assam and Others, , in the following words:

The rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function.

The question whether or not any rules of natural justice had been contravened should be decided not under any pre-conceived notions, but in the

light of the statutory rules and provisions. Where no such rules which could be said to have been contravened by a tribunal is brought to the notice

of the Court, it is no ground for interference either under Articles 226 or 227 simply because the tribunal has viewed the matter in a light which is

not acceptable to the Court.

These observations were again quoted with approval by their Lordships of the Supreme Court, in the State of Jammu and Kashmir Vs. Bakshi

Ghulam Mohammad, .

In Nanik Dharamdas Vazirani Vs. Maharaja Sayajirao University, Baroda and Others, , the Bombay High Court, while examining the scope of

the jurisdiction of a High Court, under Article 226 of the Constitution with respect to administrative bodies like universities, observed as follows:

The university in holding examination and in seeking to punish misconduct of a candidate in the examination is acting as an administrative body. If

on the materials before them the university authorities are satisfied that the answers given by the candidate to questions set at the examination are

not his real answers but that he has been guilty of misconduct in answering the questions, it is difficult to hold that the Civil Court will be competent

to enter upon an investigation and hold that the evidence before the university was insufficient to hold the misconduct proved. In submitting himself

to the judgment of the examiners regarding the quality and merit of the answers submitted by him the candidate has made the university the sole and

final authority to decide whether he is successful at the examination and therefore, it must, also follow that by submitting himself at the examination

he has made the university authorities the final judges on the question whether he has misconducted himself in the course of the examination. The

decision of the university authorities to declare a candidate unsuccessful and to impose penalties is not open to review by the Courts unless it is

shown to be arbitrary, capricious or mala fide.

In Prem Narain Tandon Vs. State of Uttar Pradesh and Another, , it has been observed as follows:

Universities are autonomous bodies and the Courts should be reluctant, as far as possible to interfere with the internal administration of the

university. There should be no occasion for any interference unless there is palpable violation of law which has occasioned injustice in a broad and

general sense. In the present case, we do not think, that the rights of the Petitioners were such which needed any interference by this Court, when

their terns were determined.

Again in Sri Calcutta Singh Vs. Registrar, Banaras Hindu University, Varanasi, , it was observed as follows:

It is true that even an administrative or disciplinary authority is expected to observe the ordinary rules of fair play and act keeping in view the

principles of natural justice. There are, however, no rules of natural justice which can be said to be of universal application to every kind of enquiry.

As Tucker, J., observed in Russell v. Duke of Norfolk (1949) 1 All ER 109 at p. 118. ""The requirements of natural justice must depend on the

circumstances of the case, the nature of inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth.

The legal position in regard to this subject was reviewed at length in (1963). I Mysore LJ 408, where it was tersely observed as follows:

Universities are autonomous statutory bodies and Courts generally refrain from interfering with their action except in cases where they clearly act in

excess of their powers or act in disregard or in violation of their duty to act justly and fairly in cases where exercise of power is likely to

prejudicially affect persons in respect of whom they exercise that power. Even in matters of latter category, they do not in all respects resemble

Courts of law nor are they required to follow strictly the procedure of Courts. Their actions cannot fully bear the character of judicial acts and all of

them may rightly be described as being purely administrative in nature.

Nevertheless, the nature of the power, the circumstances in which it is exercised or required to be exercised, the object with which the law entrusts

an authority with such power and the relationship between the authority exercising the power and the person or individual against whom it is sought

to be exercised, may be of such a nature as to impose on the authority the duty to adopt a particular type of approach, and apply certain standards

resembling in essential particulars the approach and the standards which a judicial tribunal ordinarily adopts. Those are circumstances in which it

could properly be stated....that the authority is required by law to act judicially. This duty to act judicially cannot be ignored for reason only of the

fact that the particular act or function of the authority is purely administrative in nature. Likewise, although the exercise of a certain administrative

power may have to be done in a manner simulating judicial standards, such power none-the-less continues to be administrative in character. The

function of the administrative authority in the circumstances of this nature is described as quasi judicial for want of a better term. The expression

'natural justice' commonly used by Courts and lawyers clearly connotes two distinct but closely related ideas. It comprises or suggests certain

principles which may be described as immutable and which require an authority exercising power likely to affect others prejudicially to act justly to

reach just ends by just means. It also has reference to the form of rules of procedure to be observed by the authority exercising that power. In this

regard the essential point to note is that no man should be condemned without being given an opportunity to meet the case sought to be made

against him and render his explanations. The exact procedure to be followed has to be ascertained from the conditions governing that body or

authority exercising that power and the statute and statutory rules governing that body or authority and regulating its actions and procedure. But if

the Statute or the rules themselves do not indicate or lay down any particular procedure the duty to act judicially in the manner stated above also

involves the duty of determining the proper procedure to be followed such as will enable the authority fairly and justly to exercise its power.

When power is conferred to lay down the rules of conduct to be observed by others which define and provide for punishment of misconduct or

miscdemeanours, the exercise of that power necessarily imports a duty to act justly and fairly.

In the light of the express purpose of establishing universities and the object they are intended to achieve, in exercising their power of enforcing

discipline and meting out punishment for that purpose, Universities are under a clear duty to act justly and fairly.

From the point of view of the Universities or authorities, which exercise the powers of the University in proceedings against a student for alleged

delinquency (in this case malpractice at the university examination) it is thus clear though they may not be required to function exactly in a manner in

which ordinary Courts of law function and they may mould their procedure according to the circumstances of each case, they are not free to

proceed in a manner which cannot be supported in Courts as just and fair in the circumstances of the case. From the point of view of a student, he

should have such notice or information about the facts and circumstances on the strength of which action is sought to be taken against him as to

afford him a full and fair opportunity of meeting that case.

There is certain difference between cases where the alleged malpractice takes place and is detected in the examination hall itself and cases where

the University subsequently comes to entertain a suspicion that a student has resorted to such practices in relation to an examination. In the former

case it is open to argue that any formal or further enquiry beyond the immediate detection of the malpractice in the examination hall may not be

necessary.

Where the student is caught in the very act of committing the malpractice or misconduct and is at once confronted with the facts and circumstances

constituting such malpractice or misconduct, the position in a majority of cases would be one in which he has a fair and full opportunity of

explaining himself and in the absence of his being able to furnish any satisfactory explanation he may be said to stand self condemned.

Learned Counsel for the Petitioner also referred to Narayan Swami Vs. State of Maharashtra, , but this ruling does not seem to have any bearing

on the facts and circumstances of the present case.

Examining the matter in the light of the principles enunciated in the aforesaid rulings, we think there has been no departure from the principles of

natural justice in the present case and the Petitioner has been given a fair opportunity of explaining his conduct. It is noteworthy that at the earliest

opportunity when the Petitioner was called upon to explain his conduct he refused to make any statement and instead threatened the

Superintendent and the Deputy Superintendent of the Examination Centre with dire consequences. Even on receipt of Notice No. F. ll(l)-65-SE

dated 6-2-1968 from the university when there could be no manner of doubt regarding the matter to which the notice related, the Petitioner tried to

dodge the authorities.

There has also been no violation of Statute 48 on which great stress has been laid down by the learned Counsel for the Petitioner. The said

Statute provides:

No disciplinary action under these Statutes shall be taken against a candidate except after giving him a reasonable opportunity to offer an

explanation, within a stated time of the act or acts complained of against him and considering the same.

The Statute does not require any cumbersome procedure to be followed. All that it requires is that no disciplinary action should be taken against a

candidate without giving him an opportunity of offering an explanation. In the present case, as pointed out above, not only at the initial stages but

also on receipt of recommendation from the ""Unfair Means Committee"" the Petitioner was given reasonable opportunity to offer an explanation,

which he did not avail.

It is also interesting to note that even during the pendency of the petition the Joint Registrar of the University addressed another communication

to the Petitioner which is reproduced below for facility of reference:

Please refer to notice dated 20, 1968 (sic). The explanation of your client Shri Kanwal Krishen Dhar son of Pandit Dwarika Nath resident of

Rajbagh Srinagar was duly considered by the Committee after which a decision was taken on his unfair means case. However, the university

authorities have been pleased to re-open the case and give your client an opportunity to explain his case in person to the Committee when it meets

next. The date when the Committee meets will be communicated to you shortly.

The Petitioner appears to have replied to this letter in an evasive manner and does not seem to have unreservedly accepted the offer of the

University. We are accordingly of the opinion that neither the provisions of Statute 48 nor the principles of natural justice have been violated in the

present case.

All the grounds of attack levelled by Mr. Tassaduq Hussain, therefore, fail.

Thus after careful consideration of the matter we are unable to discover any palpable error in our order dated 19-6-1968 or any mis-carriage

of justice resulting there from justifying us to set aside the said order.

For the foregoing reasons, the review petition is dismissed but in the circumstances of the case without any order as to costs.

The dismissal of this application shall not, however, be construed to prevent the Petitioner to avail of the opportunity offered to him by the

University vide their latest Notice No. F.VIII(68)KS dated July 22, 1968.

J.N. Bhat, J.

I agree.