Vinay Sharma vs Punjabi University and Others

G.C. Garg, J.—The challenge in this petition under Articles 226/227 of the Constitution of India is to a resolution dated November 22, 1991 passed in the meeting of the Syndicate of the Punjabi University, Patiala whereby the petitioner-a student of 2nd Professional MBBS course was debarred from appearing in the University Examinations for two years.

The facts in short as alleged are that the petitioner joined MBBS Course in Government Medical College, Patiala (for short the college) in the year 1987. After passing his 1st Professional MBBS Examination he appeared in the 2nd Professional MBBS Examination conducted by the Punjabi University under Roll NO. 738 in December, 1990. On declaration of result the petitioner got ''re-appear'' in the paper of Pathology. He applied for re-checking of papers A and B of the said subject by depositing the requisite fee. He received a notice dated April 18, 1991 (true translation Annexure P-1) from the University, The charge as pointed out in the said notice was as under:-

" You are charged under ordinance 38 regarding using unfair means, which are detailed below for unauthorisedly increasing the marks in the answer sheet already awarded in the examination by coming into the office of the University."

He was required to appear before the authorities on April 23, 1991 at 11.00 A.M. Somehow the meeting could not take place on April 23, 1991. The petitioner was duly informed. He actually appeared before the Committee appointed by the Syndicate for considering the case of unfair means against him. On August 20, 1991. This time the petitioner was also informed that in case he wanted to produce any witness before the Committee, he could bring him along with him. He further stated that he denied the charge, when he appeared before the Committee on August 20, 1991 and that he alone had gone to see the answer book and had done no tampering with the marks. The petitioner has also alleged that the Committee Constituted by the Syndicate examined two officials of the University on September 9, 1991 in his absence and the Syndicate disqualified him for a period of two years by resolution Annexure P-4 on the basis of the report of the Committee appointed by it. It was conveyed to him by letter dated November 27,1991, Annexure P-5.

The allegations as made by the petitioner have been denied by filing a written statement. The case of the respondent-University is that the petitioner along with four to five other boys came to the office for re-checking of his answer books and added the figure of + 3 to the marks already awarded by the examiner against Question No. 3 appearing at page 1 of the answer book and on the basis thereof, he was served a notice, Annexure P-1, as to why he be not punished under Ordinance 38 relating to unfair means, having tampered with the answer book by adding three marks to the marks already awarded by the examiner. The Syndiacte inexercise of its power under Ordinance 38 of the Punjabi University Calender, Vol. II, for the year 1987 and on the basis of evidence before, it came to the conclusion that the petitioner was guilty of using unfair means and thus, was rightly disqualified for two years from appearing in any University examination. It is further averred that he was given full opportunity to show cause against the action proposed to be taken and was heard by the committee appointed by the Syndicate.

The answer book of the petitioner was produced at the time of hearing to demonstrate that the examiner had awarded only one mark against Question No. 3 (a) at page 1 and the petitioner added the figure of +3 to the figure 1 already existing. It was further pointed out that this question carried only four marks and keeping in view the answer given by the petitioner, the examiner could not have awarded full marks as a few mistakes had been noticed by the examiner in the answer to the said question. It was further pointed out that ink and the handwriting with which figure + 3 has been written is different.

Learned counsel for the petitioner submitted that no witness in support of the allegations made against the petitioner, was examined either by the Committee or by the Syndicate in the presence of the petitioner and copy of the enquiry report was not supplied to the petitioner before the Syndicate decided to disqualify him. He further submitted that the authority passing the order of disqualification, i.e., the Syndicate did not afford any opportunity to the petitioner of being heard and the hearing provided by the Committee appointed by the Syndicate did not amount to a hearing by the Syndicate.

Ordinances relating to unfair means cases are contained in Chapter XXIII of the Punjab University Calender Vol. II for the year 1987. The Ordinances relevant for the purpose of this case are Ordinances No. 10 and 38. Ordinance 10 provides issuance of a show cause notice to a candidate and authorises the University to proceed ex parte in the event the candidate fails to reply. This reply is the only opportunity envisaged by Ordinance 10 to a candidate to show cause against the action proposed to be taken for use of unfair means. Ordinance 38 provides the imposition of punishment in respect of cases not covered by any other Ordinance. Admittedly, the case of the petitioner is not covered by any other Ordinance appearing in Chapter XXIII relating to unfair means cases. I deem it appropriate to reproduce Ordinances 10 and 38 for facility of reference:-

"10. The Registrar/Controller of Examination or an officer authorised by him in his behalf, shall call upon the candidate, alleged to have employed unfair means in the examination or obtaining admission to an examination on a false representation, to show cause why action should not be taken against him under these Ordinances. If the candidate fails to do so within the stipulated period of service of such a notice, the University shall proceed with the case in absentia."

"38. For a case of unfair means not covered by these Ordinances, the Syndicate may, on the recommendation of the Committee dealing with unfair means cases, impose such punishment as they deem fit according to the nature of the offence."

It is appropriate to notice at this stage that an authority dealing with use of unfair means by the candidates acts quasi judicially and the principles of natural justice require that the examinee must be heard even in the absence of any specific provision in the Ordinances. A duty is cast on the Committee to act judicially and the material collected against the candidate must be brought to his notice as the order of disqualification entails serious effects on the career of the candidate. I seek support for this view from the judgment of the Supreme Court in the case of Board of High School and Intermediate Education, U.P. Allahabad v. Ghanshyam Das Gupta (1962) 64 P.L.R. 575 It was a case relating to use of unfair means. The following passage in the judgment may be quoted with advantage:-

" The nature of misconduct which the Committee has to find under R.I. (1) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the Committee''s decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in courts. 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 R.I.(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 it 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 to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under R.I(1) is acting quasi-judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Committee."

The learned counsel elaborating his arguments submitted that statements of two witnesses were recorded on September 9, 1991 at the back of the petitioner, and the statements of the witnesses, on the basis of which charge was framed against him, were never supplied. No witness was produced or examined in the presence of the petitioner, who may have stated that the petitioner snatched the answer book from him while examining the same. On the counter of re-checking and the figure of + 3 was added by him on the very first page of the answer book against the marks already awarded by the examiner. Thus, according to the learned counsel, this vitiates the entire action for non-observance of principles of natural justice. In support of his submission, learned counsel placed strong reliance on Ram Narayan Keshori and Others Vs. University of Calcutta and Others, . Specific reference was made by the learned counsel to the following passage:-

"Undoubtedly it is well settled that a public authority while exercising disciplinary powers having civil consequences is under an obligation to observe the principles of natural justice. What do the principles of natural justice means or in other words what does the term audi alteram partem mean. Is that mere formality to be observed by giving a copy of the charge-sheet and asking him to explain and that will be a sufficient compliance of the principles of natural justice. Even a report is relied upon or some witness is examined at the back of the petitioner charged against and decision is made in the said disciplinary proceeding solely on the basis of that evidence or on the basis of the report it is not necessary to conform to the principles of natural justice to give the petitioner a reasonable opportunity by asking him to be present at the time when the witness is examined and also allowing him to cross examine the witnesses and or to adduce any evidence to controvert the statements or evidence of the particular witness and to confront him with report relied upon. If that be the position then the whole foundation and the basic principles of natural justice will be an empty formality and will be illusory and futile which in this late hour of the day this Court is not prepared to accept. ..... ...... ..... ....... ..... ....... it is imperative and it is an impelling necessity in order to observe the principles of natural justice that the witness on whose evidence the resolution is going to be made is to be examined in the presence of the petitioners and the petitioners have to be given opportunity of cross-examining the witness and also if necessary to allow him opportunity to adduce evidence in support of the petitioners'' case and to controvert the evidence adduced by this particular witness. This is the immediate and essential requirement of the principles of natural justice."

Learned counsel in support of his other contention that the principles of natural justice require that the authority empowered to decide the dispute must itself afford an opportunity of being heard, relied upon the observations of the Supreme Court in Gullapalli Nageswara Rao and Others Vs. Andhra Pradesh State Road Transport Corporation and Another, , wherein it was observed as under:-

"While the Act and the Rules framed there under impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing."

On the other hand, learned counsel for the respondents vehemently contended that Ordinance 38, for a case of unfair means not covered by any Ordinance, only provides that the Syndicate may on the recommendation of the Committee dealing with unfair means cases, impose such punishment as it may deem fit. Learned counsel with reference to the facts of the present case submitted that the Syndicate appointed a Committee of three Officials to go into the matter and the Committee after hearing the petitioner and bringing to his notice the entire material collected against him submitted its report. The order of disqualification has been passed after considering the material collected by the Committee. In the circumstances, learned counsel submitted that no personal hearing was required to be given to the petitioner by the Syndicate before accepting the recommendations of the Committee. He further contended that under the Ordinances, no hearing whatsoever was necessary and the candidate alleged to have employed unfair means in the examination is only entitled to a show cause notice why action be not taken against him under the Ordinances. According to the learned counsel, notice as contemplated by Ordinance 10 had been served on the petitioner and he appeared before the Committee appointed by the Syndicate. The Committee afforded full opportunity to the petitioner and he was examined by the committee and he answered the questions put to him. the answer book on which the candidate added the figure + 3 was also shown to him and thus, the principles of natural justice were fully complied with before the order disqualifying him for a period of two years was passed. The Syndicate acted on the report of the Committee and on the material collected by it. No material whatsoever was collected at the back of the petitioner or used against him without bringing it to his notice and the action of the University deserves to be sustained, especially when the authorities had no bias against the petitioner and there is no allegation of mala fide. The petitioner had full notice of the meeting that took place on September 9, 1991 as he had undertaken to produce the letter of the University while appeaing before the Committee on August 20, 1991. Notice Annexure A-2 requiring the petitioner to appear before the Committee on September 9, 1991 was given butthe petitioner chose not to appear. While controverting the allegations of the petitioner that evidence was collected at his back, learned counsel for the respondents pointed out that the Superintendent and the Clerk of the University were called by the Committee to clarify certain matters, namely; what would be the effect of addition of three marks and why answer book was shown to the petitioner. It was clarified by these officials that the petitioner deposited double fee which entitled him to have a look at the answer book and the addition of figure + 3 would on entitle thepetitioner to have his result declared as pass instead of re-appear. Learned counsel referred to a Full Bench decision of this court in Kurukshetra University v. Vinod Kumar (1977) 79 P.L.R. 70 to highlight scope of interference under Article 226 of the Constitution of India with the order of Domestic Tribunal like the Committee is limited and the only procedure required to be followed is compliance with the principles of natural justice. Reference in this behalf was also made to Bhushan Uttam Khare Vs. The Dean, B.J. Medical College and others, . their Lordships of the Supreme Court have in this behalf observed as under-

"We have considered all the materials placed before us in the light of arguments advances keeping in mind the well accepted principles that in deciding the matters relating to orders passed by authorities of educational institutions, the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice."

Reference was also made to Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, to contend that the applicability of principles of natural justice is not a rule of thumb or a straight jacket formula as an abstact proposition of law. It depends on the facts of the case, nature of the enquiry and the effect of the order/decision on the rights of the person and attendant circumstances. According to the learned counsel, the Committee appointed by the Syndicate on consideration of the material on record, reached a conclusion based on evidence and the principles of natural justice having not been violated, the order passed by the Syndicate debarring the petitioner from appearing in any examination for a period of two years, deserves to be sustained.

I have given my thoughful consideration to the entire matter and respective contenions of the parties.

The contention of learned counsel for the petitioner that opportunity of being heard should have been afforded by the Syndicate which passed the impugned order and the opportunity of being heard afforded by the Committee appointed by the Syndicate was no opportunity in the eye of law, has no force. In Gullapalli Nageswara''s case (supra) the Rules imposed a duty on the State Govt. to give a personal hearing i.e. the Minister concerned, but the hearing was given by the Secretary and it was in these circumstances, the Supreme Court concluded that divided responsibility of taking decision and affording a personal hearing by different authority was destructive to the concept of judicial hearing. In the present case, the Ordinances specifically provide that the Syndicate on the recommendations of the Committee dealing with unfair means cases, can impose such punishment as it may deem fit according to the nature of offence. In this case the committee was appointed by the syndicate to deal with unfair means case of the petitioner and the Committee so appointed went into the entire matter, afforded personal hearing and made its own recommendations. On the basis of the material collected by the Committee, the Syndicate took a decision to disqualify the petitioner for a period of two years. It is inherent in the scheme of the Ordinances that only the principles of natural justice are required to be complied with, i.e., only an opportunity is required to be afforded to show cause against the action proposed to be taken. The entire material collected by the Committee was placed before the Syndicate which took a decision. In these circumstances, I am of the opinion that personal hearing having not been afforded to the petitioner by the Syndicate in no way vitiate the action or provide a cause to the petitioner to challenge the order of the Syndicate on that ground.

It is specifically recorded in notice, Annexure P-1, that the petitioner while being shown the answer book of the subject snatched the same from the hands of the official of the University when he was accompained by 4/5 boys and added the figure of +3 to the marks already awarded by the examiner against the answer to Question 3(a). It is on the basis of this report, action was initiated against the petitioner which resulted in the issuance of show cause notice and the appointment of the Committee by the syndicate to examine the matter and make a report. The petitioner did appear before the Committee where various questions were put to him. He answered all the questions. Reports of the Committee, Annexure P-3, clearly records that the Superintendent of the Secrecy Branch had given a report of this incident and the same was available on the record. This report of the Superintendent was never put to the petitioner as is apparent from the questions put to him when he appeared before the Committee on August 20, 1991. The only allegation against him is that when he appeared before the officials of the University, he snatched the answer book and added the figure of +3 to the marks already awarded by the examiner. Neither the official of the Secrecy Branch nor the Superintendent of that Branch was examined in the presence of the petitioner. As noticed earlier, even the report of the incident made by the official or the Superintendent was not put to the petitioner when he appeared before the Committee. In any case the report of the Committee nowhere records that report of the official or the Superintendent was shown to the candidate. The petitioner while appearing before the Committee did state that the University had communicated to him through a letter that he got three more marks as a result of re-checking. He was asked to produce the letter on the next date of hearing. It is the definite case of the University that no such letter was ever written to the petitioner. The petitioner was required to appear before the Committee on September 9, 1991 vide letter Annexure A-2, but he did not appear. It seems obvious that he did not appear as he was unable to produce the letter as stated earlier by him. The Superintendent of the Examination Branch and a Clerk of Secrecy Branch Were summoned by the Committee on September 9, 1991 but no material adverse to the petitioner was collected on that date. They only gave certain clarifications to the Committee regarding which it was perhaps in doubt. These officials only brought to the notice of the Committee that the effect of adding the figure of +3" to the marks already awarded would be that the candidate would get through the examination by getting grace marks. The answer book was shown to the petitioner as he had deposited double fee as required by the Ordinances the answer book containing the addition of three marks as also the award list were shown to the petitioner by the Committee. The Committee in its report noticed that there was a difference between the ink of figure 1 and figure of +3 in the answer book of the petitioner and that Question No. 3(a) carried a total of four marks and the answer did not show that he could carry 100% marks. The Committee also noticed that there was no cutting in the award list and his total marks in the award were only 20 on the basis of one mark obtained by him against Question No. 3(a). It is on the basis of these circumstances the Committee recommended to the Syndicate that the petitioner was guilty of using unfair means, the fault was of a serious nature and that he be debarred from appearing in the University examination for two years, which report in turn was accepted by the Syndicate.

The totality of the circumstances as noticed above, lead to the conclusion that the petitioner may be guilty of misconduct but the entire material as noticed by the Committee in support of its conclusion has not been put to the petitioner. Thereby the principles of natural justice have been violated. To notice some of these are: i) difference of ink in the figure; 1 and figure of +3; ii) question No. 3(a) carried 4 marks; iii) answer to this question was of ordinary standard and he could not get 100% marks; iv) absence of cutting in the award list; v) total marks in the award list on the basis of which only one mark was obtained by the petitioner for Question No. 3(a); vi) the report of the official and/or Superintendent, Secrecy Branch available on the file; and vii) different mode of writing ''3'' by the examiner and the candidate. This is more so as the order of the present type would blast the entire career of the candidate who is a student of medical college and has already studied for more than three years.

In the circumstances, order, Annexure P-4, deserves to be quashed being violative of the principles of natural justice which I hereby do. The matter is remitted back to the respondent-authorities to decide it afresh in accordance with law. The petitioner has already suffered for a period of one and a half years. Under these circumstances pending final disposal of the matter by the University afresh, the petitioner be permitted to appear in the subject/subjects of the 2nd professional MBBS examination going to take place in June, 1992, in which he may be entitled to appear. This direction is being given as the petitioner is even otherise eligible to appear in the 2nd professional MBBS examination going to take place in December, 1992. The result of the examination will be subject to the decision of the Syndicate in the matter.

I hope and trust that the authorities will take all possible precaution to finalise the matter as early as possible, preferably within three months. The Syndicate will have due regard while awarding penalty, if any, to the candidate to the fact that the petitioner has already suffered for one and a half year.

With the above observations and directions, the writ petition is allowed. There shall, however, be no order as to costs.