Surindra Pal Trikha vs Principal Govt. Medical College and Another

J.N. Bhat, J.—This writ petition has b; en presented by Surindta PalTrikha, a student, ok 'the. Government Medical College Srinagar,

against the Principal of the College and the University of Jammu and Kashmir on the following allegations:

That the Principal by his order No. 7391-92 dated 14th August 1963 rusticated the Petitioner from the college for a period of one year on the

ground that he had been engaged in activities of a subversive kind and had been ""Using ragging measures and language which was unthinkable,

That the Principal by his order No, 8187-97 MC dated 28-8-63 expelled him from the College for all time from the date of the aforesaid order

duo to his taking a second year student Kumari Simianlata Samyal in the Mens' Hostel at Bemina through a window of one of the rooms on 28-8-

o 5 and ro ""maining with her in the room for the night. The University had confirmed these orders of the Principal on 23-11-63. That both the

orders were passed by the Principal without holding an inquiry in his presence, nor was any notice or opportunity of showing cause against the

orders made against the Petitioner given to him, and the Petitioner was condemned unheard. The principles of natural justice had been violated; the

effect of the. orders was to place a permanent stigma on the life of the Petitioner and to blast the whole of his career. That; the allegations on which

he was expelled were not factually correct. He had given shelter to Kumari Suman Lata when she had been subjected to atrocities by other people

This shelter was .given simply to protect her. She had made a statement of the actual facts in the City Magistrate's court at: Srinagar. The

Respondent No. 2 had also confirmed 'the order of Respondent No. 1 without affording an opportunity to the Petitioner to show cause against1

GOVT. MEDICAL COLLEGE (J. N. Bhat J.) the proceedings taken against him. The Petitioner 4 therefore prays that the above-mentioned

orders bevi quashed. .

On behalf of the Respondents it has been alleged that the writ petition is not maintainable, and since disputed questions of fact arise in the case

the petition cannot be entertained. The actions of the Respondents is an administrative action and as such no writ lies. These objections are

supported by two affidavits: one by the Principal Medical College Dr. M. L. Gujral and the other by the Registrar of the University, Mr. Abdul

Aziz.

The affidavit of Dr7 Gujral states that female visitors are not allowed in the male hostel of tho Government Medical College. The Petitioner who

was not a boarder of the hostel had brought I Kumari Suman Lata to the male hostel at 3 A. M. to a. room through a window in the ground floor.

Tho . Principal admits having informed the University and the Registrar' of the University also admits having taken action against the Petitioner by

confirming his order of expulsion. In para 5 of his affidavit Dr. Gujral has stated:

While denying the allegations made in para 5 of the petition which are calculated to create prejudice against the deponent I say that the Petitioner's

father was asked through a messenger to bring tho Petitioner on the day when the inquiry into the complaint of bringing Kumari Suman Lata into

the hostel was to be held in my office, but the Petitioner deliberately stayed away and did not) come to my office, along with his father. In the

circumstances an inquiry into the matter was held by me in my office on 26-8-63 in the presence of (he concerned students, the mother of Kumari

Sliman Lata and the father of the Petitioner.

The affidavit states that witnesses were examined and their statements duly recorded. The action taken was according to the statutes and the

provisions of the Jammu and Kashmir University Act. The action taken was an administrative measure and the pendency of the case in. a

Magistrate's court would not debar the Principal from taking an administrative action.

The case was argued before me by 'Mr. Sharnia for the Petitioner and the Advocate"" General for the Principal Medical College and Mr. J. N.

Bhan for the University of Jammu and Kashmir."" So far as the University of Jammu and Kashmir is concerned, it has simply confirmed the order of

expulsion proposed by the Principal Medical College. on getting the report and the recommendation of the Principal Medical College, according to

the Registrar, a meeting of the University Syndicate was called on 23-11-63 wherein the action taken by the Principal Medical College was

confirmed.

Before mo it has been argued that the proceedings taken against the Petitioner are of an administrative or disciplinary kind and therefore no writ

petition lies. It has further been argued that in such circumstances it was not at all necessary fort the Principal to have given any notice to

the/Petitioner before he recommended the expulsion of the Petitioner from the College. Thirdly, it has been argued that the quantum of punishment

awarded to the Petitioner cannot bo challenged and cannot be reviewed by this Court. These three propositions, have, therefore, to be disposed of

by me.

In disposing of contention No. it has to be decided whether the proceedings are purely of an administrative or of a disciplinary character ""or can

in any sense of the term be called judicial or quasi-judicial. If they are of the former nature,, the argument that a writ petition is not available to the

Petitioner has some force. On the other hand; if it is held that they have some sort of a qilasijudicial character, then the consensus of authorities as

that this Court has jurisdiction to entertain a writ petition, to see whether the Respondents' orders have been properly passed or not. There is an

Apparent conflict of authority on this point, though on a careful analysis of the various authorities the law that is sought to be laid down by different

courts is the same. I shall first cite the authorities and then try to say what is the law that has been laid down in this behalf.

In Sadhu Ram v. Principal Rajindra College AIR 1954 Pepsu 151 it was held that the court had jurisdiction to entertain the complaint of a

scholar who had been expelled from the college for; two years for gross misconduct for writing a letter to a girl student, by means of a writ petition.

It was laid down.

where the Petitioner had a right to continue! as a scholar in the college and he could only bo expelled on reasonable grounds, once that right of his

under the law is affected by a decision of the) Principal about his misconduct there is a presumtion that the authority vested in the Principal to-affect

such right of the Petitioner must be exercised quasi-judicially.

This authority goes so far as to say that the court could decide whether (he punishment awarded was proper or adequate.

In Dipa Pal v. Calcutta University AIR 1955 Cal 594 it was held that.

It was the duty of the Board of examiners to act judicially if a candidate who appeared fon examination was found guilty of misconduct or adoption

of unfair means at the examination and was disqualified from obtaining the degree. And if the decision of the Board was made without giving the

Petitioner an opportunity of being heard, the punishment awarded would be against the principles of natural justice.

In this case it was further laid down:

But where no case of breach of discipline is actually detected but subsequently upon examination of the answer papers the examiners come to

entertain suspicion about adoption of unfair means by particular candidate on candidates and the Examination Board has to consider such cases

and come to a determination as to the nature of the offence committed and has to apportion the penalty which can properly be inflicted upon the

delinquents, it is only fit and proper that the party arraigned should have an opportunity to defend himself and to offer an explanation, if any. To

brand a candidate with the stigma of adoption of unfair means at the examination or in other words finding him or her guilty of dishonesty or

cnlsconcmct and thereby causing an irreparable in-1965 J. & K. D.P./2(2) jury to the character and reputation of such candidate, without giving

him or her any opportunity to explain, is contrary to all notions of justice and good sense.

It is true that the Board of Examiners is an Administrative Body but when they are conducting enquiries or investigations into cases of misconduct

of the candidates they are exercising quasi judicial functions. They are a body of persons invested with authority to adjudicate upon matters

involving civil consequences to individuals.

In this case the punishment proposed by, the Board of Examiners was confirmed by the Syndicate of the Calcutta University and it was held:

Whether it is the decision of the Board or the decision of the Syndicate, these different bodies are discharging the different functions of the

University and their acts are the acts of the University.

It was further held:

Even assuming that the act of confirmation of the Syndicate was in the nature of an executive act the mere confirmation cannot legalise the

proceedings of the Board of Examiners which were con ducted in violation of the requirements of the Statute or in breach of their duty to follow

the principles of natural justice. Both the decision and its confirmation remain tainted with, illegality.

In Keshab Chandra Vs. Inspector of Schools and Others, it was held that:

Where an Inspector of Schools passed an order of rustication against a student, for his alleged participation in a fracas in front of his school,

without a report from the head of the institution and without an enquiry as to whether he did take part ins the incident, the officer had no jurisdiction

to pass the order and further the order offended principles of natural justice in that it had been passed without an enquiry.

The order was therefore set aside. In this case, how-ever, by way of obiter dictum it was held that a student who had been meted out some

punishment or against whom disciplinary action had been taken had no right to come to the court because these were matters of internal autonomy

of educational institutions.

On the other hand a Division Bench of the Allahabad High Court in Ram Chandef Roy v. University of Allahabad, (S) AIR 1956 All 46 has

laid down that in disciplinary proceedings the head of the institution does not act as a judicial or a quasi-judicial tribunal and has no right to

examinel the witnesses. It was further held that in taking disciplinary proceedings against a student, the statute gives the discretion to the Vice-

Chancellor to determine the nature of the punishment to be awarded and the severity of that punishment. The High Court cannot exercise the

functions of an appellate court or of a supervisory body for the purpose of scrutinising the appropriateness of the order passed by the Vice-

Chancellor. Further, in matters of discipline of educational institutions the High Court will not exercise its powers under; Article 226 of the

Constitution unless some legal right of a student had been violated.

In Rana Pratap Singh y. Vice Chancellor AIR 579 All 579 it was held:

An opportunity of explanation cannot always be the same thing as the right assured by the principle of natural justice . not to be condemned

unheard. An opportunity of explanation necessarily carries with, it the right to explain the 'material against the person charged but the opportunity of

being heard before being condemned is narrower. When its requirements will be deemed; to have been fulfilled will always be dependent on the

facts of each particular case. This right must in the very nature of things be very limited in scope in the matter of discipline, particularly in

educational! institutions where the welfare of a large section of young boys is to be affected. A distinction has to be drawn where the authority

taking action is doing so in the exercise of some statutory power conferred upon it and in cases where the general behaviour of students as such in

an institution is in issue.

In Jagdish Chandar Vs. The University of Punjab, , Khosla j. laid down:

The senate has framed rules for dealing with a candidate who is found guilty of misconduct in the course of examination and the procedure is laid

down in Regulation 6. Neither the University Act nor the Regulation made under it nor any principle of natural justice gives to an examinee the right

of personal appearance in the proceedings and if he is given an opportunity of being heard before a decision is taken the fact that he was not

allowed to appear personally does not render the proceedings in any way invalid.

In this case it was held that the court had jurisdiction over the University and could grant a writ of mandamus against the University.

In Dr. Ishwari Prasad Vs. Registrar, University of Allahabad and Others, it was held that the. Chancellor of the Allahabad University acting u/s

47 is subject to the High Court supervision.

Similarly in Samarendra Prosad Chakravarty and Another Vs. The University of Calcutta, , it was held that the Syndicate being a statutory

body vested with the executive government of the University, the persons constituting it became ipso facto holders of a public office and can be

proceeded against by an application, u/s 45, Specific Relief Act.

In what circumstances can the action of and authority be deemed to be quasi-judicial and in what circumstances can it be treated as purely

administrative has been the subject of comment in different rulings of the Supreme Court. In Province of Bombay Vs. Kusaldas S. Advani and

Others, , it was laid down that

When the executive authority has to form an opinion/about an objective matter as a preliminary step to the exercise of certain power conferred on

it, the determination of the objective fact and' the exercise of the he power based thereon are alike matters of an administrative character and are

not amenable to the writ of certiorari. When the law under which the authority is making a decision, itself requires a judicial approach,, decision will

be quasi-judicial prescribed forms of procedure are not necessary to make an enquiry judicial, provided in coming the decision the i well-recognize

A principles of preach are required to be -followed. Therefore wherever any body of persons having legal authority to determine questions

affecting rights of sub jects and having the duty to act judicially, .act in. excess of their legal authority a ""writ of certiorari may issue.

Excepting the last Supreme Court authority, I have quoted selected cases only where the-actions of educational institutions or the Universities

were the subject-matter of dispute.

The test as already laid down for the entertainment of a writ petition by an aggrieved person in such matters is that if any civil rights of a person

are affected by the.' order of an administrative body, such orders are quasi-judicial and are amenable to a writ of certiorari by the High Court or

the Supreme Court.

In the instant case the student had the right to continue to study in the Medical College, but by the. order of the Respondents his career has

been cut short and a right which he could exercise legally has been denied to him..,, Further his future career, his reputation, his status in life .and

his future prospects in every way or, in some, way are likely to be affected. Therefore, this decision of the Principal or for that matter of the

University of Jammu and Kashmir is a matter which can be challenged by the Petitioner by means of a writ.

Even underneath the apparent contradictory points of view as for instance in AIR 1954 Pepsu 151 (S) AIR 1956 All 46 and Rana Pratap

Singh Vs. The Vice Chancellor, Benares Hindu University, Varanasi and Others, the principle that can be held deducible from these authorities is

that the court is not functus officio in entertaining writ petitions. In the later Rana Pratap Singh Vs. The Vice Chancellor, Benares Hindu University,

Varanasi and Others, , the grievance of the Petitioner was that he was not given opportunity to cross-examine the witnesses. As a matter of fact he

had admitted having raised certain objectionable slogans in the convocation of the University and as such, as was rightly pointed out by their

Lordships, the necessity of his having been given an opportunity to cross-examine the witnesses d'id not arise. Their Lordships observed on page

50 column 2 para 6 in (S) AIR 1956 All 46 (Supra):

We are also not convinced that there is any principle of natural justice under which a person sought to be dealt with in disciplinary proceedings can

claim that he must be dealt with by the procedure applicable to judicial or quasi-judicial proceedings. There is the further circumstance that, in this

case, the Petitioner's own admissions before the Enquiry Committee 'made it unnecessary that he should be given any opportunity to cross-

examine the witnesses.

In fact, it appears that opportunity to cross-examine the witnesses was given only to those students whose defence before the Enquiry Committee

made it advisable that the evidence against them should be properly tested by cross-examination. The Petitioner has -himself: admitted and, in fact,

made a grievance of the fact that the Enquiry Committee had confined itself solely to the enquiry about the disturbance and indiscipline that had

taken place in the convocation pandal of the Allahabad University.

In this case their Lordships have referred to an English case - Ex parte Fry 1954 All ER 118 where Lord Goddard C. J. held as follows:-

It seems to me impossible to say, where a chief officer of a force which is governed by discipline; as is a fire brigade, is exercising disciplinary

authority over a member of the force, that he is acting either judicially or quasi-judicially. It seems to me that he is no more acting judicially or

quasi-judicially than a school-master who is exercising disciplinary powers over his pupils.

This quotation from the report is very brief. In the first place a schoolmaster exercises parental authority over his pupils and as such the authority of

a schoolmaster over his pupils cannot be denied For instance, if a schoolmaster slaps a boy for his misconduct in the school on inflicts some other

penalty upon him for an act done in presence of the school master -which amounts to indiscipline, the schoolmaster is fully justified in awarding the

penalty and such a punishment cannot be subsequently questioned in -a writ petition. But the matter would be entirely different if the schoolmaster

on a-report of some -misconduct on the part of a pupil inflicts a punish, ment upon him without affording him an opportunity to meet the case.

Similarly in Rana Pratap Singh Vs. The Vice Chancellor, Benares Hindu University, Varanasi and Others, a regular charge sheet was given to

Kana Pratap ""Singh the Petitioner in that case. The student -also put in his explanation and it was considered by the Standing Committee of the

Academic Council of the University and as a result the student was rusticated for two years. In this case the student 'had full notice of the charges

framed against him and he had been given an opportunity of meeting the same.

In Halsbury's Laws of England, 3rd edn. Vol. 13 at page 593, it has been stated:-

In cases where a pupil is being educated in pursuance of a contract, the headmaster has authority to expel him if his conduct is such that he could

not any longer be permitted to remain with-out danger to the school, but such authority must be exercised' honestly and reasonably, and not

wantonly or capriciously. The headmaster must take into consideration the interests not only of the particular boy, but of the whole school.

These observations are based on Fitzgerald v. North-cote (1865) 4 F&F 656 at p. .690, per Cock-burn C.J. and Hutt v. Governors of

Haileybury College, (1888) 4 TLR 623, at p. 624 and Wood v. Prestwich (1911) 104 LT 388, at p. 391.

I, therefore, hold that the arguments of the learned Counsel for the Respondents that this writ petition is not maintainable is not correct and is

re-jected.

The next point for determination is whe-ther any notice was necessary to be given to the student before inflicting punishment upon him. The

authorities cited above clearly show that any decision arrived at by the Principal or for that matter by the University without giving the student

notice of the proceedings would be a violation of the principles of natural justice. In a Division Bench authority of this Court reported as Dy.

Custodian General v. Mst. Radha Kuar AIR 1961 J&K 56, it was held that in the case of cancellation of an allotment on the ground that it was

obtained' by dishonest means when the allotment was cancelled without notice there was a gross violation of the principles of natural justice

sufficient to attract the certiorari jurisdiction of the High Court. These observations were made in spite of the fact, that noj notice is contemplated

by the Administration of Evacuees' (Properties) Act or the rules thereunder; in the case of cancellation of an allotment. Thai view taken in this

decision was based on a number! of authorities amongst which may be mentioned Veerappa Pillai Vs. Raman and Raman Ltd. and Others, , Hari

Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, and Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, .

In Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, it was held that a writ of certiorari will be issued when the court or the Tribunal

acts illegally in the exercise of its undoubted jurisdiction as when it decides with-out giving an opportunity to the parties to be heard or violates the

principles of natural justice. In this case Veerappa Pillai Vs. Raman and Raman Ltd. and Others, and other authorities like Ebrahim Aboobakar

and Another Vs. Custodian General of Evacuee Property, and Basnppa v. Nagappa, AIR 1954 44 were considered.

In Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, it was laid down that

a quasi-judicial authority can impose penalty upon a person only after giving that person an opportunity to put forward an explanation and not! on

mere suspicion, even though there is no statu-tory obligation that the person should be heard......The rule expressed in the maxim ""Audi alteram

partem"" (hear the other side) thati no man should be condemned to consequences re-suiting from the alleged misconduct unheard and without

having an opportunity of making his defence. The rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal, or

body of persons invested with authority to adjudicate upon matters involving civil consequences to individual.

In view of this clear pronouncement, of law by various High Courts and by their Lordships of the Supreme Court, there remains no shadow of

doubt that in the/ present case if it is held that the punishment was awarded to the Petitioner without giving him an opportunity of being heard or

with-"" out notice to him, the same cannot be upheld.

Now to apply these' principles to the present case, we have to take' the facts into consideration. It was with this object that I quoted rather in

exten so paragraph 5 of the affidavit of Dr. Gujral. About this part of notice what Dr. Gujral has said is that the Petitioner's father 'was asked

through a messenger to bring the Petitioner on the day of the inquiry in his office, but ..the Petitioner deliberately stayed away and did not come to

his office along with, his father. This is what is termed by the learned Advocate General as notice to the Petitioner. It is interesting to note that

information was not sent to the Petitioner but to his father Further, the information was sent through a messenger. Who that messenger was is not at

all disclosed. Whether that messenger actually conveyed the information to the Petitioner's father is also not at all mentioned in the affidavit or the

objections. All this is suggested to have happened verbally. Theresa no allegation that any such communication was addressed to the Petitioner's

father in writing. Nor is it disclosed what kind of information was sent on to the Petitioner's father.

One cannot understand why should a messenger have been sent to the father of the Petitioner and not to the Petitioner himself. It was argued by

there learned Advocate General that the Petitioner's where about were not known. If they were not known, how His father's whereabouts were

known is not at all clear from the file. Further if the message, was sent to the Petitioner's father to produce the Petitioner, the only inference

deducible from such a course of conduct on the part of |be Principal would be that he presumed the Petitioner to be living with his father or under

his control It. seems the authorities or the messenger knew where the Petitioner's father resided. One .""imagine if the Petitioner's father was asked

to Procedure the. Petitioner, s why was the Petitioner not this self directed to-appear at the inquiry. Notice as I understand in this context, would

mean to the person against whom any action is sought to be taken. The notice must indicate to him the precise nature of the accusation, the precise

time and place and the gentleman or the authority is going to hold the inquiry and before whom he is directed to appear. A vague assertion made in

this case on behalf of the Principal cannot, in my opinion, in any sense of the word satisfy the firequirements of a notice to be served upon a person

who is to be condemned.

In his treatise on Natural Justice Suranjan Chakravarty on page 149 has stated:

It is patent that unless a notice, as to when the tribunal proposes to go on with the enquiry is given, the enquiry will be an ex parte one, a result

forbidden by the rule.

(Rule of natural justice). Accordingly in Spackman v. Plumstead Board of Works (1885) 10 AC 229, Lord Selborne insisted that one of the rules

of natural justice was that the tribunal 'must give notice that he will proceed with the matter.

In Amiya Prosad Das Gupta Vs. Director of Procurement and Supply and Another, , it was said that the RCP thereupon found the delinquent

guilty of he the charges. It was not quite clear whether he gave notice to the delinquent before ho arrived at this decision. He, however, appeared

to have directed, the AFCP to intimate to the delinquent that he should appear before the RCP but this notice was never served upon the

delinquent. On these facts it was held that, ""Where the inquiry against the civil servant pursuant to the charge-sheet was ex parte and the enquiring

officer relied on evidence of persons not given at the enquiry and without confronting the civil servant with those persons and without giving him an

opportunity to cross-examine them, the entire procedure was arbitrary and not in accordance with law.

In the instant case, the presence of the father of the Petitioner during the inquiry would be neither here nor there, as it is nobody's case that he

was acting on behalf of or as an attorney for the Petitioner. Nor is this fact at all material that; the inquiry was conducted in the presence of some

respectable doctors and Ors. What was necessary in the eye of law was that the inquiry should have been held in the presence of Petitioner. Other

people's presence, however important they might be, would not affect the legal aspect of the case. The Petitioner, therefore, in my opinion had no

legal notice of any proceedings taken against him for his alleged misbehavior.

The last point is about the quantum of punishment that has been awarded to the Petitioner. On this point I do not agree with Mehr Singh J. in

AIR 1954 Pepsu 151 (Supra) that even the quantum of punishment can be decided or looked into by the court. In this respect I am in respectful

agreement with the observations of their Lordships of the Allahabad High Court in (S) AIR 1956 AB 46 and Rana Pratap Singh Vs. The Vice

Chancellor, Benares Hindu University, Varanasi and Others, that the quantum has to be decided by the authority who is responsible for the

maintenance of discipline of the institution. Such authority being responsible for the welfare ""of the students as a whole,' is the best judge to say

what punishment should be awarded, regard being had to the welfare of the general student body of the institution and the indiscipline committed

by a particular student, its effect on the administration of the institution, its future effect on the morale and efficiency of the institution and its

students. These are matters which can best be determined by the head of the institution subject to confirmation by the University.

In this case, in view of .what has been stated above, the order of the principal expelling the Petitioner from the College for all time to come

dated 28th August 1963 as confirmed by the University is set aside The other order of 14th August 1963 has spent its force. The Principal will

hold a fresh inquiry, if he so desires, into the conduct! of this student, after giving due notice to him. The Petitioner will within one week of this

order inform the Principal on which address he should be surrounded. The Principal will see that the Petitioner is summoned expeditiously and after

giving the Petitioner notice, the Principal will proceed in the matter afresh with due regard to the interests of the institution of which he is the head.

The writ petition is accepted accordingly.