Shri Bhabendra Kumar Kalita vs Union of India (UOI) and Others

D.N. Baruah, J.—The petitioner has filed this application under Article 226 of the Constitution challenging the annexure-1 order dated 23-12-94 by which the petitioner''s son Cdt Dhrubajyoti Kalita was withdrawn from the school with immediate effect and prays for an appropriate writ or direction to allow the petitioner''s son Dhrubajyoti Kalita to continue his studies in Class-VIII in the school and also to allow him to appear in the promotional annual examination.

The facts of the case may be stated in brief as follows. The petitioner''s son Dhrubajyoti Kalita who is aged about 14 was admitted in Class-VI of Sainik School, Goal-para of which the respondent No. 2 is the Principal. The school is a member of the Indian Public Schools''. Conference and affiliated to the All India Central Board of Secondary Education, New Delhi. The school is directly functioning under the Ministry of Defence, Government of India. It is a residential school. Dhrubajyoti Kalita was promoted to Class-VIII in the year 1994. He was thereafter shifted to a hostel known as Lachit House meant for the senior students from Class-VIII to Class-XII. Class-VIII students are the juniormost in the said hostel. According to the petitioner in the first part of December, 1994 Dhrubajyoti Kalita had his 2nd phase test (of class-VIII). It has been averred by the petitioner that on the night of 8-12-94 his son was subjected to severe ragging by the senior students of the said hostel, which made impossible for his son to prepare for his examination scheduled for the next day. The 3rd respondent was incharge of the said hostel.

On 9-12-94 the petitioner''s son some how could appear in his paper. However, being subjected to severe ragging compelled him to leave the school on 9-12-94 and came .to his parents. On 24-12-94 the petitioner received annexure-1 letter from the 2nd respondent whereby he was informed that his son has withdrawn from the school on gross disciplinary grounds as he left the school on 9-12-94 without permission of the school authority leaving an objectionable note. According to the petitioner this action was taken by the 2nd respondent on his own without giving any opportunity to his son or to the petitioner to explain the position. On receiving the annexure-1 order the petitioner submitted a representation to the 2nd respondent, that is, the Principal of the school on the day, i.e., 23-12-94. However, nothing was heard from the 2nd respondent. Situated thus, the petitioner submitted yet another annexure-II representation dated 30-12-94. In his representation he informed the 2nd respondent that he was busy with the medical treatment of his son who sustained injuries on his nose and ears when he arrived home on 11-12-94. He also explained the situation and requested the 2nd respondent by annexure-III letter dated 5-1-95 replied to the representation submitted by the petitioner. However, in the said letter the petitioner''s first representation dated 23-12-94 was referred to. In the said annexure-III representation the 2nd respondent informed that the petitioner''s son left the school in the past many times without permission. This time he "flouted all norms and (Code) of conduct of school by adopting unfair means and left the school leaving behind a note". On receipt of annexure-III letter the petitioner submitted yet another representation dated 28-1-95 reiterating his earlier prayer. However, nothing was done. Hence the present petition.

An affidavit-in-opposition has been filed on behalf of respondents Nos. 1 to 3. In the said affidavit-in-opposition respondents Nos. 1 to 3 have denied the averments made in the petition to the effect that the petitioner''s or was subjected to severe ragging by the senior students of the hostel, namely, Lachit House. According to the respondents Nos. 1 to 3 these allegations were totally false respondents have also stated that there was no complaint of ragging made at any time by the petitioner or by his son Cdt Dhrubajyoti Kalita. These respondents have further stated that the petitioner''s son Cdt Dhrubajyoti Kalika was caught while adopting unfair means in the General Science paper of the second terminal test, 1994. It has also been stated that on the said date after lunch i.e. around 13.00 hrs. the aforesaid cadet left the school premises without permission leaving a note under his mattress which was found after search. The respondents have further stated that as per the said note the petitioner''s son wanted to run away from the school and did not intend to return even to his parents. An FIR was lodged at 14.30 hrs. on 9-12-94 at Mornoi Police Station. A telegram was also sent to the petitioner informing the position accordingly. The Superintendent of Lachit House Mr. N. N. Kanungo was also sent to Guwahati to inform the parents of the cadet about the incidents and to check up whether he had reached home. After vigorous search the petitioner''s son was caught near the Goalpara Bus Stand and was brought to the school on 11-12-94. The cadet was asked to write his statement about the reasons of his leaving the school without permission. Thereafter, when the parents came on the same day, i.e., 11-12-94, annexure-B statement was recorded and thereafter the boy was handed over to the parents who arrived on 11-12-94 in the school. According to the respondents from the aforesaid facts it is evident that the petitioner''s son is indisciplin-ed and mentally unstable student and, therefore, the authority was compelled to take action.

I heard both sides.

Mr. C. C. Deka, learned counsel for the petitioner submitted that the respondents had removed the petitioner''s son without making proper enquiry. No opportunity was given to the petitioner''s son Dhrubajyoti Kalita or to the petitioner to explain under what circumstances the petitioner''s son had to leave the school and, therefore, the action was in complete violation of the principles of natural justice. Besides, the respondents while withdrawing the petitioner''s son from the school, did not act fairly and reasonably.

Mr. K. P. Sarma, learned Addl. Sr. Central Govt. Standing Counsel, appearing for the respondents strenuously argued in support of the action taken by the respondents. Mr. Sarma very forcefully argued that as per the school discipline the action of the petitioner''s son cannot be condoned. The school, like any other Sainik School of the country, is imparting education with sole aim to get the students admitted in the Army. Discipline of the school was of paramount importance for the authorities. If a student become indisciplined then it would be difficult for the authorities to run the school and to fulfil the object for which the school had been established. It would affect the standard of the school as a whole. If such indiscipline would have been condoned, the other students would also indulge in similar activities and, therefore, the whole purpose of having a Sainik School would be frustrated. Besides, Mr. Sarma had argued that the petitioner''s son Cdt Dhrubajyoti Kalita was given sufficient opportunity to explain his conduct and in reply, he gave annexure-C statement. Therefore, it could not be said that he was denied the opportunity of hearing. Mr. Sarma had also drawn my attention to the decisions rendered in Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, Union of India v. Anand Kumar Pandey, AIR 1994 SC 388,Smt. Rashmibala Barua (Kakoti) v. Smt. Deepali Devi, 1995 (1) GLJ 189, Central Board of Secondary Education v. Vineeta Mahajan(Ms), (1994) I SCC 6 : (AIR 1994 SC 733).

On the rival contentions of the learned counsel for the parties, now it is to be seen whether the impugned action can sustain in law. Petitioner''s son Dhrubajyoti Kalila is a minor boy studying in Ctass-VIII of the School. He left the school without informing the authorities. His leaving the school may be for various reasons and under various circumstances. The case of the petitioner is that his son was compelled to leave the school because he was tortured in the name of ragging. He sustained injuries and was medically treated. His grievance was that the authority took the (sic) action without giving any opportunity. This is the order by which the petitioner''s son was withdrawn from the school. The ground of withdrawal was that he left the school on 9-12-94 without the permission from the. school authority leaving an objectionable note. Annexure I however, does not indicate what was the objectionable note. However, in reply to the representation some more grounds have been added. In the annexure III letter written by the petitioner, it has been mentioned that the petitioner (sic) "flouted all the norms and code of conduct of the school in getting caught while cheating and leaving behind a note which can be interpreted in many ways". In the said annexure III it has also been mentioned that the petitioner''s son left the school in the past many a time without permission.

Under what circumstances the petitioner''s son had to leave the school? From the record I do not find anything to show that the petitioner was given an opportunity to explain under what circumstances he had to leave the school. Of course, in the affidavit-in-opposition the respondents had annexed an-nexure-C statement said to be written by the son of the petitioner. As per the averments, petitioner''s son left on 9-12-94 and, therefore, he was caught by the House Master and some other students and a statement was written by him as averred. Under what circumstances this note was written is not known. The possibility of writing the said note under influence or under threat of some persons cannot be ruled out. Instance of this nature is not unknown. Besides, it is also well known that the (sic) vogue in educational institutions. Several student in many educational institutions suffer from the menance of ragging. Therefore, no drastic action in such circumstances should be taken without first making proper enquiry and without the compliance of the principles of natural justice. However, rules of natural justice cannot be put in straight jacket. The concept of natural justice envisage the principles, namely (1) no one shall be ajudge in his own case, (2) No one shall be condemned unheard. The second principle envisages that the right to be heard in order to be effective must be preceded by notice as to the extent of charge which a person is called upon to meet. Person must be given an opportunity of presenting his case in such a way suitable to the character of the enquiry which would ensure a fair hearing resulting in fair dispensation of justice. In Administrative Law, rules of natural justice are foundational and fundamental concepts and law is now well settled that the principles of natural justice are parts of the legal and judicial procedures and are also applicable to the administrative bodies, in its decision making process having civil consequences. See Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others, In a recent decision in Dr Rash Lal Yadav Vs. State of Bihar and Others, the Supreme Court has observed thus (at pp. 3339 and 3340 of AIR SCW):--

"6. The concept of natural justice is not a static one but is an ever explained concept. In the initial stages it was thought that it had only two elements, namely, (i) no one shall be a judge in his own cause and (ii) no one shall be condemned unheard. With the passage of time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its miscarriage. Therefore, when the legislature confers power in the State Government to be exercised in certain circumstances or eventualities, it would be right to presume that the legislature intends that the said power be exercised in the manner envisaged by the statute. If the statute confers drastic powers it does without saying that such powers must be exercised in a proper and fair manner. Drastic substantive laws can be suffered only if they are fairly and reasonably applied. In order to ensure fair and reasonable application of such laws Courts have, over a period of time, devised rules of fair procedure to avoid arbitrary exercise of such powers. True it is, the rules of natural justice operate as checks on the freedom of administrative action and often prove time consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by adherence to the expanded notion of rule of natural justice. Therefore, where a statute confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled or checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to the contrary as in the present case. This Court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, after referring to the observations in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, observed as under (SCC p. 272, para 20) : (at p. 3340, para 6 of AIR SCW):

"The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it."

These observations make it clear that it the statute, expressly or by necessary implication omits the application of the rule of natural justice, the statute will not be invalidated for this omission on the ground of arbitrariness."

By the above observations the Supreme Court has expanded the concept. By this the Supreme Court has held that the authority must also assure "procedural reasonableness". If the authority fails to comply with this requirement also it will be violative of the principles of natural justice.

In Maharashtra State Board of Secondary and Higher Secondary Education AIR1991 SCW 879(supra), the Supreme Court held thus:

"The appellant Board conducted secondary examination in the month of March, 1990. When after the formalities of valuation by the examiners of the answer-sheets in each subject, the random counter-check by the moderators and further recounting at the Board, moderators'' mark sheets were sent to Pune for feeding the computer to declare the results, it was found that moderators'' mark sheets relating to 283 examinees which included 53 respondents were tampered with, in many a case in more than 2 to 8 subjects, and in few cases in one subject. As a result, 214 examinees who were otherwise to fail would pass, and the remaining 69 examinees improved their ranking, which would be in some cases exceptionally good. The declaration of their results were withheld pending further enquiry and the rest were declared on June 30, 1990. The Board appointed seven enquiry officers to conduct the enquiry. Show cause notices were issued to the students on July 30, 1990 informing them of the nature of tampering, the subjects in which the marks were found tampered with, the marks initially obtained and the marks increased due to tampering, and also indicated the proposed punishment if in the enquiry it would be found that marks were tampered with the knowledge or connivance or at the instance of the candidates or parents or guardians. The students were also informed that they would be at liberty to inspect the documents at the Divisional Board at Bombay. They were entitled to adduce documentary and oral evidence at the hearing and to cross-examine the witnesses of the Board, if any. Though they were not permitted to appear through an advocate, but the parents or guardian were permitted only to accompany the students at the time of enquiry, without taking part in the enquiry. The candidates submitted their explanations denying the tampering and appeared before the Enquiry Officers."

On perusal of the facts it appears that the above decision does not apply to the present case. The other decision relied on by Mr. Sarma in the case of Union of India and Others Vs. Anand Kumar Pandey and Others, also does not apply to the present case. However, it is true that when a person admits his guilt the principles of natural justice can be excluded, in an appropriate case. But while dispensing with these principles, the authority must first ascertain under what circumstances person has made the admission.

In the present case petitioner''s son a minor student left the school and he was caught on the next day by the House Master of the School and some others and he was asked to write a statement and he wrote it. In such circumstances there is every possibility of threat or some pressure. At least he was under severe mental pressure. Therefore, a charge ought to have been framed against him and the authority ought to have given notice calling for explanation. The boy ought to have been given some time to get over from the fear psychosis he might have been having under the fact and circumstances. Regarding the other charge of malpractice in the examination what I find is that annexure 1 is absolutely silent in this regard. Because of this it is difficult to accept these allegations. Suggestion of Mr. Deka, learned counsel for the petitioner that these are all after-thought cannot be brushed aside.

Therefore, in my opinion, the impugned order is arbitrary and violative of the principles of natural justice. Accordingly. I set aside the Annexure 1 order and also Annexure III reply letter. From the record it appears that this Court as an interim measure directed the authority to allow the petitioner''s son to appear in the examination. Learned counsel for the parties have also informed this court that the petitioner''s son was allowed to appear in the examination. In view of that I direct the authority to declare the result immediately within a fortnight from the date of receipt of this order.

In the facts and circumstances of the case I make no order as to costs.