The University of Madras and Another vs R. Nagalingam

(1) This is an appeal filed under Cl. 15 of the Letters Patent against the judgment of Veeraswami J. issuing a writ of certiorari quashing a resolution

of the Syndicate of the University of Madras which debarred the respondent from appearing at its examinations for a short period. The respondent

was a student of Thiagaraja College of Engineering one of the institutions affiliated to the Madras University. He appeared as a candidate for the

Second B. E. degree examination (integrated course) held by the University in September 1961. On 12-9-1961 the second paper in physics was

given to him for answer at the examination hall. The answer books which he completed and delivered to the chief superintendent present at the

examination hall, consisted of the main and three additional books. But two of the latter bore evidence of their having been prepared outside and

brought into the examination hall, the candidate having included the same with the rest of the answer books. The Chief Superintendent duly

reported the matter to the authorities of the University referring in his communication to three features as suggesting that the two additional books

could not have been written at the examination hall but outside, but surreptitiously introduced into the answer books. This, if true, will undoubtedly

be a serious malpractice at the examination.

(2) Under the Statutes and Regulations of the University, the Syndicate is vested with authority to exercise control over its examinations, to

invalidate examinations held either generally or with reference to a particular candidate and to rusticate its students for enforcing discipline or by

way of punishment. Matters of the kind now in question are initially dealt with by a Committee, known as ""Syndicate Committee on Discipline and

Welfare of Students"". Sri S. J. Savarirayan convenor of the Committee, on receiving the complaint aforesaid first appears to have thought that the

reasons given for entertaining the suspicion against the respondent were not very convincing; but at the some time he felt that the matter was one

for consideration by the committee. The Committee in due course called for an explanation from the candidate in regard to the suspicious features

in his answer books. The respondent denied that he acted in contravention of the rules, or that he was guilty of any malpractice. The committee

after considering the explanation came to the conclusion that the respondent was guilty of introducing the answer books brought from outside with

those written up at the examination hall. This is clear from the following endorsement made by them on the letter of the Chief Superintendent.

The explanation of the candidate is unacceptable. Examination may be cancelled and the candidate debarred from the nest two (rule 5)

examinations

In the minutes of the Committee we find:

Read letter dated 12-9-1961 from the Chief Superintendent, University Examinations. Thiagaraja College of Engineering, Madurai, forwarding the

answer paper of candidate with register number 358 in physics II second B. E. (integrated) suspected case of malpractice. And also the

explanation of the candidate.

Resolved that it be a recommendation to the syndicate that the examination taken by the candidate be cancelled, that he be debarred from

appearing for the next two examination held by the University, and that the candidate be not permitted to undergo any course of study in this

University during this period

The matter was placed before the meeting of the Syndicate held on 9-1-1962. It resolved that the respondent should be debarred from appearing

for the next two examinations. The question in the present case is whether in so doing the Syndicate of the University had come to its conclusion on

the guilt of the respondent or whether it merely proceeded to resolve on the punishment without considering the merits. As the entire basis for the

latter theory has been rested on the entry in the minutes book of the meeting, it will be useful to set it not in extension:

Read letter dated 12-9-1961, from the Chief Superintendent University Examinations, Thiagaraja College of Engineering Madurai forwarding the

answer paper of candidate with Register No. 358 in physics II second B. E. (integrated) suspected case of malpractice. Also the explanation of

the candidate together with the recommendation thereon of the Syndicate committee on Discipline Welfare of students etc. Resolved that the

examination taken by the candidate be cancelled, that he be debarred from appearing for the next two examinations held by the University, and

that the candidate be not permitted to undergo any course in this University during this period

Feeling aggrieved by this decision of the University, the respondent filed an application to this court under Art. 226 of the Constitution complaining

in substance, that in imposing this punishment the University authorities did not conform to the principles of natural justice. Veeraswami J. after over

ruling a contention raised on behalf of the University that the order of rustication was a mere administrative act, not open to judicial review, held

that as neither the Committee nor the Syndicate had given any express finding of its own regarding the guilt of the respondent, there was no valid

basis for the disciplinary action. The learned Judge observed:

What is relevant to the facts of the instant case is the necessity for the Syndicate itself to arrive at and express it finding on the guilt with reference

to the accusation for it is in that body the duty to finally decide is vested by the regulations. Such a duty necessarily implies both mental process of

arriving at a finding on merits and an expression of the conclusion to constitute the decision relevant to the charges. In my opinion this requisite is

not complied with or satisfied by merely showing that certain records are read and certain punishment is inflicted

There can be little doubt that the learned Judge''s view that the Syndicate did not perform the essential preliminary before imposing the punishment

namely, of arriving at a conclusion as to whether at all the candidate was guilty of misconduct, is based on the terms in which the minutes of the

meeting are couched They make no specific reference either as to any discussion at the meeting or of the conclusion which the members reached

on the merits.

(3) We shall proceed to consider this matter after disposing of one argument which learned counsel appearing for the University pressed before us.

(4) It was contended that when an academic authority imposes on its pupil a punishment it is doing a mere administrative act, the propriety of

which could not be called in question in proceedings under Art. 226. The procedure to be followed in such cases, has been claimed as vesting in

the University an absolute power to do what it liked. We cannot however subscribe to the proposition that the absence of rules prescribing the

procedure for taking disciplinary action against the student, can vest an arbitrary power in the authority. But at the same time it must be realised

that it is not every act of the statutory authority that could be called in question, under the extraordinary powers vested in this court under the

Constitution. There can be not better statement of the law as to when it can do than in the following classic words of Atkin L. J. in Rex v.

Electricity Commrs. 1924 1 KB 171:

Whenever any body of persons having legal authority to determine questions affecting the rights of subject, and having the duty to act judicially,

act in excess of their legal authority they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs"".

There can be little doubt that the University is entrusted with the authority to determine whether there has been a breach of discipline and to punish

for such breach. The imposition of the punishment will affect the right of the student and it follows that what the authorities of the University do in

such cases is a quasi judicial act. The fact that the University is the Judge and there are no two parties to the dispute is not material. In Province of

Bombay Vs. Kusaldas S. Advani and Others, Das J. as he then was observed.

The principles as I apprehend them are..........(ii)That if a statutory authority has power to do any act which will prejudicially affect the subject,

then, although, there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject

opposing it, the final determination of the authority will yet be a quasi judicial act provided the authority is required by the statute to act judicially"".

In a more recent decision, namely, Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others,

the Supreme Court held that even though a statute did not expressly provide that the authority passing on order should act judicially, such an

obligation could be inferred from the nature of the power vested in the authority. That was a case where no opportunity was given to the candidate

affected, by the committee of enquiry which inflicted punishment for his misconduct. The Supreme Court observed:

Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially:

that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be

determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority

acting under a statute where it is silent. has the duty to act judicially will depend on the express provisions of the statute read along with the nature

of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person

affected and other indicia afforded by the statute"".

We are therefore, in agreement with the learned Judge that the punishment imposed on the respondent being a quasi judicial act of a statutory

authority, will be subject to control by this court.

(5) Once it is held that the act is to be done in a quasi judicial capacity, it is implicit that the authority being in the position analogous to that of a

judge, should come to its own conclusion on the subject matter left to its decision; and in so doing it should conform to the principle of natural

justice. There is not dispute in the case that the respondent was given sufficient opportunity, of which he availed himself to show that the charge

against the Syndicate had come to its own conclusion on the guilt of the respondent.

(6) As we said there are no specific rules regulating the procedure to be followed by the University in such cases. The Syndicate consisting it does

of several members can only transact its business at a meeting. Therefore the procedure to be followed by it in the performance of judicial acts

should normally conform to its own constitution in accord with the recognised mode of transacting Business, unless there be something in the nature

of the question to be decided which obliges it to depart from its ordinary procedure. In Local Govt. Board v. Arlidge, 1915 AC 120 Haldane I. C.

stated.

They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting

the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice"" Lord

Parnoor expressed the same idea thus:

In determining whether the principles of substantial justice have been complied with in matters of procedure, regard must necessarily be had to the

nature of the issue to be determined and the constitution of the Tribunal

Lord Shaw of Dunformline observed:

If a statute prescribes the 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 special 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.

We have, therefore, to consider whether in the instant case, the orders of the authority could not be regarded as made in the true judicial spirit or

whether it transgressed any principle of substantial justice. Veeraswami J. thought that as the minutes of the meeting of the meeting of the

committee as well as the general body of the Syndicate showed only that certain papers were read, it must be taken that there was no

consideration by that body of the essential question which came up before them viz. as to the respondent''s guilt.

(7) We have earlier set out the endorsement by the committee on 30th December 1961 on the report of the Chief Superintendent that the

explanation offered by the candidate was unacceptable. The criticism that the committee has not considered the matter cannot, therefore, be

sustained. Coming to what the Syndicate did at its meeting, there is no material available in the shape of a record of what happened on the 9th

January 1962. One can reasonably assume that there was a discussion of the subject placed before it to the extent necessary to warrant the

resolution adopted. Did such discussion relate to the entire matter or to the punishment alone on any assumption that the respondent was guilty of

malpractice, at the examination?

(8) The counter affidavit filed by the Registrars of the University definitely states, that the Syndicate of the University did consider the merits of the

case before passing the resolution regarding the punishment to be imposed on the candidate. But what is put against the acceptance of that

evidence is the absence of any reference to a decision having been come to on the merits, in the minutes book. But a minutes book is not generally

intended to or does not usually contain all that takes place at a meeting. A distinction should be made in this connection between the report of a

meeting and the minutes thereof. The former can certainly be expected to contain an account of what takes place at the meeting; but the purpose of

the latter is only to record the decisions arrived at it. In Smith''s book on ""The Conduct and Procedure at Public Company and Local Government

meeting"" 18th Edn. pointing out this difference. the learned author states at page 43:

The minutes of a meeting consist of what was done at the meeting, e.g. resolutions and decisions of the meeting should be minuted, but the

speeches or arguments in connection therewith should not be included in the minutes

Again at page 169:

A clear distinction should be carefully drawn between a report and a minute. The former chiefly consists of what was said, the latter consists of

what was done or agreed upon and its place of record is the minutes. Speeches and arguments of a general meeting may form the material of a

newspaper report, but the resolutions and decisions are the only proper material for the minutes. The minutes will only be evidence of those matters

properly entered in them"".

The absence in the minutes of any reference to a discussion having taken place as to whether the respondent''s explanation was acceptable or not

cannot therefore, be taken as proving that there was no such discussion. Nothing appears on the face of the record to show that the eminent

persons who attended the meeting so forgot their functions that they did not discharge their duty of determining whether the charge had been made

out before they proceeded to resolve on the punishment. It would require some evidence before such a conclusion can be reached.

(9) What takes place at a meeting before arriving at the final decision being not one for record in the minutes, it cannot be assumed that the

Syndicate did not consider the vital matter or that its act is invalid. It will be for the person aggrieved by that act who calls in aid the judicial power

in this court to pronounce it has void, to show that the authority acted in excess of its powers and did not actually decide the matter.

In The Vice-chancellor, Utkal University and Others Vs. S.K. Ghosh and Others, the Supreme Court observed:

Though an incorporated body like a University is a legal entity, it has neither a living mind nor voice. It can only express its will in a formal way by

a formal resolution and so can only act in its corporate capacity by resolutions properly considered, carried and duly recorded in the manner laid

down by its constitution"".

The practice of the University appears to have been only to record it s resolutions; there is nothing in its constitution or the statutes to oblige it to

record even a summary of the discussion on the resolution. As pointed out by Jagadisan J. in the unreported decision in W. P. No. 922 of 1961, it

is not obligatory upon the Syndicate to write a judgment giving reasons and ""an unspeaking order is not ex facie bad because of its muteness"".

But that does not mean that there is any irrebuttable presumption that the statutory authority which performs a quasi judicial act, has done it in the

true judicial spirit. that question will always have to be decided by the superior court when it arises.

(10) In the present case we have had an opportunity of looking into the answer book of the respondent. That bore in itself sufficient evidence that

two of the additional books must have been written up at home. The cramped writing at their end, and leisurely and steady writing thereon as

compared with the rest of the answer books, would induce any judge to come to the conclusion that some malpractice must have been committed.

Not much discussion was really necessary in such a case to come to a conclusion about it. There is little doubt in our minds that the conclusion

reached by the committee is fully justified by the appearance of the answer book itself. We accept the statement in the counter affidavit filed by the

Registrars that The Syndicate only considered the relevant matters before passing the impugned resolution. We cannot, therefore, agree with

Veeraswami J. on that part of the case.

(11) But before parting with the case, we feel that it will not be out of place to refer to one matter which caused us some concern. At the same

time we do not wish to have understood as in any way sanctioning or minimising the gravity of the conduct of the respondent which is quite

unworthy of a University student; the punishment meted out to him cannot in any way be regarded as otherwise than just. It must also be noted that

preparation of apart of the answers to questions at the examination at home, suggests a premeditated malpractice and this in turn suggests that

some of the questions that were set for the examination must have been known to the candidates. How many of them profited by it, is not our

concern, in the present case. But it certainly behoves the authorities concerned to have a fuller probe into the matter in order to avoid in future any

temptation on the part of the students to commit offences of this kind.

(12) The University has debarred the respondent from appearing for the next two examinations to be held by the University. The period has now

expired. By virtue of the orders passed by Veeraswami J. the respondent was allowed to sit for the examination and we are told that he has

passed the second year examination in two stages. Our decision in this appeal will have the effect of at least invalidating one such examination. It is

a matter for the consideration by the University whether after the lapse of such a long time, the order which was certainly justified in the then

circumstances of the case should be enforced in all its rigour by compelling the candidate to sit again for the same examination, retarding thereby

the continuation of his studies. We have no doubt that the University will look into this matter with sympathy and with due regard to the interests of

the candidate concerned and also consider whether the ends of justice would not be met by allowing him to continue his studies here after by

validating the examinations he had passed in the interval. The appeal will be allowed with costs.

Appeal allowed.