-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1786 OF 2008 Mega Vishwanath Iyer, age 19 years, ) of Mumbai, Indian Inhabitant, Occupation student, ) residing at Flat No. A-702, Eden – III, Central Avenue, ) Hiranandani Gardens, Powai, Mumbai-400 076 )... Petitioner. Versus 1. Unfair Means Enquiry Committee of S.K. Somaiya ) College of Arts, Science and Commerce. ) 2. S.K. Somaiya College of Arts, Science and ) Commerce. ) 3. Parvati Venkatesh, ) Principal, S.K. Somaiya College of Arts, Science and ) Commerce. ) 4. Dr. Sangeeta Kohli, Convenor, ) Unfair Means Inquiry Committee. ) 5. Prof. Charlotte Braganza, Member, ) Unfair Means Inquiry Committee. ) 6. Prof. Manali Londhe, Member, ) Unfair Means Inquiry Committee. ) 7. Prof. Yogesh Patel, Member, ) Unfair Means Inquiry Committee. ) 8. Prof. D. Kembulkar, Member, ) Unfair Means Inquiry Committee. ) 9. Prof. M.S. Deshmukh, ) Invitee of Unfair Means Inquiry Committee. ) All having their address at Vidya Nagar, ) Vidyavihar, Mumbai-400 077 ) 10.The Vice-Chancellor, ) University of Mumbai, University Campus, ) Fort, Mumbai-400 020 )..Respondents Mr. Joaquim Reis, instructed by Mr. Kunal Cheema, for the petitioner. Mr. K.K. Jadhav for respondent Nos. 1 to 9. Mr. Rui Rodrigues for respondent No.10. -2- CORAM: P.B. MAJMUDAR & A.A. SAYED, JJ. DATE: AUGUST 28, 2008. ORAL JUDGMENT (Per P.B. Majmudar, J.) Rule. Learned counsel appearing for respective respondents waive service of rule. With the consent of the learned counsel appearing for the parties, Rule made returnable forthwith. 2. “No mobile phone in the examination hall PLEASE “ should be the message which is required to be conveyed by the academic institutions to the students community at large. The point involved in this petition is in connection with the punishment awarded to the petitioner for taking mobile phone in the examination hall. 3. The petitioner had appeared for the First Year B.M.S. Examination held in March, 2008. At the time of appearing for “Introduction of Computers Paper” it was found that the petitioner entered the examination hall with the mobile phone in her possession. The case of the petitioner is that even though she was unintentionally carrying her mobile phone in her pocket, she immediately handed it over within ten minutes to the Supervisor and she had not taken advantage of the same in any manner and that, therefore, the penalty awarded to her by the Unfair Means Enquiry -3- Committee of S.K. Somaiya College of Arts, Science and Commerce (hereafter “the Committee”) is not in accordance with law. 4. It is not in dispute that at the time of entering the examination hall, the petitioner was having the mobile phone with her, though it may be true that she might have handed over the same later on, may be within short time after the commencement of the examination. On the aforesaid act on the part of petitioner of taking mobile in the examination hall, she was subjected to proceedings which were conducted by the Committee. We have perused the proceedings of the enquiry which are annexed at Exhibit- L to the petition. The enquiry was conducted on 24th June, 2008 wherein six members were present which included the member who was also invited in the Committee proceedings. As per the notings of the said Committee, at page 75, the following question was asked by the Committee Members to her viz. “Do you know there are some exam related instructions on the front page of the main answer sheet? Yes. I do know but I could not read them fully.” At page 79, there is a reference to the following question by the Committee. “Do you want to say anything further? Yes. My humble request is that please make the decision if a punishment shall be a minor one because this has -4- happened unintentionally and not because of purpose. Please accept the fact that I am a student of 18 and don't want to lose a year of my career. Please give me a chance to improve my mistake which shall never happen again.” 5. It is not in dispute that the petitioner went to the examination hall with the mobile telephone. The Committee after considering the said aspect and considering the say of the student, passed the impugned order dated 25th June, 2008, whereby her performance at the F.Y. B.M.S. ATKT Examination held in March, 2008 has been treated as null and void in full and that she was debarred from appearing in one more additional college examination and a fine of Rs. 300/- also has been imposed on her. It is the aforesaid order of punishment which is impugned in this petition at the instance of the petitioner. 6. Mr. Reis, learned counsel appearing for the petitioner, submitted that it is true that the petitioner was having mobile phone at the examination hall but on her own she handed over the same to the Supervisor and she had not taken benefit of any data available on such mobile phone. He submitted that the mobile phone was taken in the examination hall unintentionally and by way of forgetfulness on the part of the petitioner. He submitted that there are many instructions which might be appearing on the answer sheet but in a given case the students may not read the instructions completely. It is, therefore, submitted that there was no mens rea on the -5- part of the petitioner and the mobile phone was not taken with an intention to use any material or data stored in such cell phone. He submitted that the College should not have passed the impugned order of punishment. Alternatively he has submitted that the punishment imposed is required to be reduced suitably considering the fact that it is for the first time that the petitioner was found to have mobile phone with her at the time of giving answer in the examination hall. 7. Mr. Jadhav, learned counsel appearing on behalf of respondent Nos. 1 to 9, on the other hand submitted that there is a clear cut instruction given on the answer sheet as well as Examination Hall Ticket wherein it is clearly mentioned that mobile telephones are strictly not allowed in such examination hall. In the hall ticket it is mentioned that “ Mobile phones are strictly not allowed inside Examination Hall”. The said instructions are in block letters. It is submitted that on the answer sheet also such instructions are clearly stated. Further, it is an admitted fact that the mobile phone was found after the examination started. According to the learned counsel, the mobile phone was handed over to the Supervisor at the demand of the Supervisor as the Supervisor noticed the said fact on his own. He submitted that however, so far as the question about quantum of punishment is concerned, considering the fact that College being in a loco parental status, may consider reducing the punishment without treating the same as -6- precedent as normally such type of cases are not coming to the notice often and since according to the learned counsel for the petitioner it is for the first time that she committed such an act, the College is willing to reduce the quantum of punishment. 8. Mr. Rodrigues, learned counsel appearing for the University also submits that now examination authorities are taking appropriate care by informing the students in advance that no such mobile phone or electronic device should also be permitted in the examination hall. Otherwise, the same will be treated as using unfair practice in the examination. 9. We have heard the learned counsel appearing in the matter at length and have also gone through the petition and the annexures thereto. 10. It is required to be noted that by taking any electronic device or mobile in the examination hall, a student can misuse the same in case any data is stored in such device. It is high time that the parents and students at large should know that no such device should be allowed in the examination hall and if any student is found with such device, he/she may loose a precious academic year and may invite severe punishment also. In a given case, even a bona fide mistake also can be considered as a serious negligence as intentionally or unintentionally no students should be allowed -7- to carry such electronic device at the time of entering the examination hall and even if by mistake such electronic device is taken while leaving the house, it must be given to the Principal or to the College authorities well in advance before entering the examination hall. The College authorities should also permit such students to hand over such electronic device before entering the examination hall by making proper note so that the same can be handed over after the examination is over. In any case, no student can ever be permitted to have such an electronic device at the time of entering the examination hall. So far as this aspect is concerned, the College authorities should widely publicize and inform the students well in advance so that a student may not take a defence that he/she had not minutely gone through the instructions given on the Examination hall ticket and the answer sheet in this behalf. 11. So far as the facts of the present case is concerned, it is not in dispute that the mobile phone was found in possession of the petitioner after the question papers were distributed. It is not the case that even before distribution of question paper, the petitioner on her own surrendered the mobile phone. Even in that case also the misconduct can still be there but the gravity may be lesser. Apart from that, even as per the report of the Committee, the petitioner has admitted the fact that though she knew that there are instructions printed in this behalf , her defence is that she had not -8- minutely read all the instructions. It is also not in dispute that such data was stored in the mobile phone which has relevance with the examination in which the petitioner had appeared on the relevant date. The petitioner, in fact, has requested the authorities to give a minor punishment which has been noted by the committee as stated above. In our view, a student taking mobile phone in the examination hall having data stored in such mobile phone which is relevant to the particular examination of a subject can never be said to be guilty of a minor lapse. Such conduct, therefore, is rightly taken to be a serious lapse by the Committee. Considering the facts stated hereinabove, in our view, therefore, it cannot be said that the decision of the Committee is based on no evidence. After considering the material on record and after considering the facts and circumstances of the case, in our view, the Committee has taken a decision which can be said to be a just and proper decision. It cannot be said that such decision was arbitrary in any manner. Even otherwise, this Court, while exercising its jurisdiction under Article 226 of the Constitution of India, cannot sit in appeal over the decision of such an academic institution. However, even if this Court has to sit in appeal, then also no other view than the one taken by the Committee is possible. Under these circumstances, we reject the argument of the learned counsel for the petitioner that the petitioner had not committed any misconduct or that there was no mens rea on the part of the petitioner in carrying the mobile phone in the examination hall. At the cost of repetition, -9- we once again reiterate that after the question papers were distributed and after some time the mobile phone was ultimately taken from the custody of the petitioner by the Supervisor. Under these circumstances, we do not find any force in the argument of Mr. Reis that it was a case of no misconduct. 12. As far as the question of punishment is concerned, it is true, as argued by Mr. Reis, that the use of mobile phone in the examination hall is not a routine type of case and that prior to last ten to fifteen years, there was no occasion for using the said device by the students in the examination hall. Though, in our view, these are the hazards of modern technology, yet considering the fact that there is nothing to show that in the past the petitioner was found to have indulged herself in unfair means in the examination, we appreciate the stand taken by the College that without treating this case as a precedent in any other case, the petitioner will be allowed to appear in the ensuing October, 2008 examination in respect of all four ATKT theory papers. However, that would not mean that even if the petitioner clears the same, she would be entitled for admission for the term which has already commenced. The respondent-college may take follow up action in this behalf. It is also assured to the Court by the University and the College authorities that they will take appropriate steps by way of proper -10- intimation/publication that no student should use such electronic device in the examination hall and the same will be made known well in advance. 13. It is for the College authorities to consider, if in a given case a student by mistake has brought the mobile phone, he/she should hand over the same to the College authorities before the examination starts and in such a situation, the college authority may accept such mobile phone by proper noting and hand it over to the students after the examination is over. The College may also consider putting notice outside the examination hall stating that no mobile or electronic device or any such instrument is allowed to be taken in the examination hall and that it should be removed outside the examination hall immediately. 14. In view of what is stated above, no relief can be given to the petitioner as prayed for except the one which is mentioned in the order regarding quantum of punishment recorded above and the punishment is accordingly substituted as per the submission made on behalf of the College before this Court above. Subject to what is stated above, Rule is discharged. No order as to costs. The College authorities to hand over the mobile phone seized from the petitioner. The petitioner to acknowledge receipt on receiving such mobile. P. B. MAJMUDAR, J. -11- A.A. SAYED, J.