Civil Writ Petition No.22623 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Civil Writ Petition No.22623 of 2010 (O&M) Date of Order: 5th October, 2011 Lovkesh Bhayana and another ...Petitioners Versus Punjab Engineering College, Chandigarh and another ..Respondents (2) Civil Writ Petition No.4463 of 2011 (O&M) Garvit Nain ...Petitioner Versus Punjab Engineering College, Chandigarh ...Respondent (3) Civil Writ Petition No.3596 of 2011(O&M) Nishant Sehrawat ...Petitioners Versus Punjab Engineering College, Chandigarh ...Respondent Civil Writ Petition No.22623 of 2010 (O&M) -2- CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Rajiv Atma Ram, Senior Advocate with Mr. Arjun Partap Atma Ram, Advocate and Mr. Saurabh Arora, Advocate for the petitioners. Mr. R.S.Bains, Advocate for respondent-University Mr. Sumeet Goel, Advocate for Central Bureau of Investigation. RAJIVE BHALLA, J. This order shall dispose of Civil Writ Petition Nos.22623 of 2010, 4463 of 2011 and 3596 of 2011 as they involve adjudication of identical questions of law and fact. For the sake of convenience, facts are being taken from CWP No.22623 of 2010. The petitioners pray for issuance of a writ in the nature of certiorari for quashing minutes of a Senate meeting dated 28.09.2010, Annexure P-3 and impugned orders dated 04.10.2010, Annexure P-4, Annexures P-6 and P-7, cancelling their admissions and dismissing their appeals, respectively. The petitioners were admitted to the B.Tech, undergraduate course, offered by the Punjab Engineering College, a deemed University (hereinafter referred to as the 'University'), under the Direct Admission of Students Abroad Scheme(for short referred to as 'DASA) as they claimed that they are citizens of Nepal. In August/September, 2010, the university received a complaint that certain students, have obtained admission by presenting forged, and fabricated documents. The University issued a notice dated 13.09.2011, followed by reminders, asking students to submit their original passports and Civil Writ Petition No.22623 of 2010 (O&M) -3- residence cards. Yogesh Bhayana, Garvit Nain, Nishant Sherawat and Lovkesh Bhayana (petitioners herein), did not submit their original passports or their residence cards. Despite another notice dated 17.09.2010, the petitioners did not respond. The Senate, in its meeting, held on 28.09.2010, passed a resolution directing the Dean of Academic Affairs to cancel the petitioners' admissions. A notification dated 04.10.2010 (Annexure P-4) was issued cancelling their admission. The petitioners filed appeals, but were informed, after an application was filed under the Right to Information Act, that their appeals have been rejected for want of any statutory power to entertain their appeals. It would be appropriate to mention that the CBI has registered an FIR against petitioners and the final report is pending consideration before a criminal court. Counsel for the petitioners submits that the petitioners are bonafide students. The allegations levelled against them are incorrect and remain unsubstantiated. Before terminating their admission, the University did not issue any notice calling upon the petitioners to explain their position. The resolution passed by the Senate and the order passed by the Dean of Academic Affairs, cancelling admissions are, therefore, illegal and void. It is further submitted that mere registration of a criminal case or the filing of a final report, does not raise an inference of guilt. An accused is presumed innocent till proved guilty. The petitioners were minors and even if it is assumed that there was any foul play, they cannot be held responsible. It is further argued that even a convict has a Civil Writ Petition No.22623 of 2010 (O&M) -4- right to pursue an academic career. The petitioners are at best accused of an offence and should, therefore, be allowed to complete their course. It is further submitted that appeals filed by the petitioners were rejected for want of jurisdiction, by misreading Rules and Procedure for Undergraduate programmes (hereinafter referred to as the 'Rules'). Rule 8.4 clearly provides that a student whose programme is terminated on account of inadequate academic performance “or otherwise” has a right to appeal to the Chairman, Senate for reconsideration. The respondents have while dismissing the appeals ignored the words “or otherwise”. It is prayed that as the impugned orders disclose a gross violation of the principles of natural justice and as appeals have been dismissed without considering Rule 8.4, the writ petition should be allowed, and the petitioners should be restored to their undergraduate programmes. Counsel for the respondent-University submits that as fraud is writ large on the petitioners' conduct, they are not entitled to any relief. The admission form and documents submitted by the petitioners, at the time of their admission, reveal blatant impersonation and forgery. The petitioners were admitted as foreign students on the basis of forged citizenship cards. The petitioners were called upon to submit their original certificates but failed to do so. Their admissions were cancelled in terms of Rule 2.1 of the Rules & Procedures for Undergraduate Programmes of Punjab Engineering College, Chandigarh, that empowers the University to Civil Writ Petition No.22623 of 2010 (O&M) -5- cancel admission obtained by furnishing incorrect information. It is further submitted that if the petitioners are bonafide residents of Nepal, they might at least have appended relevant documents with the writ petition. The absence of any document, to support their alleged Nepalese citizenship prima-facie establishes that the petitioners obtained admission by furnishing incorrect information. It is further submitted that the Central Bureau of Investigation has lodged FIR No.RC 0512010 S0017 dated 07.12.2010, under Sections 420/ 467/ 471/ 120-B of the Indian Penal Code. The petitioners have been arraigned as accused in the trial. The question whether the petitioners are guilty of a criminal offence is to be determined by a criminal Court. The criminal trial does not prohibit the University from taking action against the petitioners. The petitioners have not denied, whether before the University or before this Court, that they are residents of Haryana,. It is further submitted that a number of opportunities were granted to the petitioners to prove their Nepalese citizenship but they have failed to produce any material to establish their Nepalese citizenship. The University, therefore, had no option but to terminate their undergraduate courses. It is further submitted by reference to the FIR registered by the Central Bureau of Investigation that the petitioners' original residence is Hansi in District Hissar, within the State of Haryana, India, and not Nepal. I have heard counsel for the parties and perused the impugned orders. The petitioners, apparently, fueled by a desire to gain admission in a prestigious institution by means, fair or foul, Civil Writ Petition No.22623 of 2010 (O&M) -6- submitted forged documents claiming to be citizens of Nepal. The University did not suspect any foul play and granted admission to the petitioners against seats reserved for DASA students. The alleged fraud, came to light when a complaint was received by the University and an FIR was registered by the Central Bureau of Investigation. A relevant extract from the FIR lodged by the Central Bureau of Investigation would be an appropriate pointer to the misconduct of the petitioners. “Information further revealed that the below mentioned students having Indian nationality, in conspiracy with Sh. Nishi Kant, Sh. Kishor Yadav both resident of Hissar and unknown other prepared/obtained false, fabricated and forged Nepalese citizenship certificate and dishonestly use the same for seeking admission in PEC University of Technology, Sector-12, Chandigarh as Nepalese citizens under the DASA scheme during the academic session 2008-2009 and 2009-2010. Details of students are as under:- 1. Sh. Lovkesh Bhayana s/o Sh. Narinder Bhayana, r/o H.No.595/02, Rupnagar Colony, Hansi, Branch Computer Science & Engg., EDSIL Registration No.584/2008-3rd year. 2. Sh. Yogesh Bhayana s/o Sh. Narinder Bhayana, r/o Bhai Ji Hotel, GT road, Advocate Colony, Hansi, Branch Electronic Civil Writ Petition No.22623 of 2010 (O&M) -7- Engg. , EDSIL Registration No.745/2009-2nd year. 3. Sh. Nishant Sherawat s/o Narinder Singh Sherawat, r/o H.No.304, Sector-15, Hissar, Branch Electrical Engg., EDSIL Registration No.680/2009 end year. 4. Sh. Garvit Nain s/o Sh. Om Parkash r/o H.No.1482, Urban Estate, Phase-II, Hissar, Branch Civil Engg., EDSIL Registration No.710/2009, 2nd year. The admissions of above students in PEC University of Technology, Chandigarh taken on the basis of forged documents, as Nepalese students have been cancelled on 04.10.2010.” The allegations levelled, in the FIR, are that the petitioners prepared false, fabricated and forged Nepalese Citizenship certificates for dishonestly obtaining admission. The University issued a notice dated 13.09.2010, calling upon all Bachelor of Engineering students of 1st year, 2nd year, 3rd year and 4th year, admitted under the DASA scheme, to submit their passports/original citizenship cards, for verification. The petitioners did not respond. The respondent-University forwarded a circular to all Heads of Departments, with names of students, who have not submitted their original passports/citizenship cards. The petitioners' names find mention in this circular. The petitioners, however, did not submit any document original or otherwise. The petitioners, if Civil Writ Petition No.22623 of 2010 (O&M) -8- innocent, had no reason to withhold relevant documents. Rule 2.1 of the Rules empowers the University to terminate the course of an undergraduate if he has submitted incorrect information. The Senate in its meeting held on 28.09.2010 recommended cancellation of petitioners' admissions, under Rule 2.1 and vide order dated 04.10.2010 (Annexure P-4) their admissions were cancelled. The petitioners invoke the principles of natural justice, the principle of innocent until proved guilty, their tender age being minors and a plea that their course can not be terminated till they are held otherwise guilty in the pending criminal trial. The allegations levelled against the petitioners, in the criminal case, are one of fraud and impersonation. The allegations cannot be brushed aside on the plea that as the petitioners are mere accused they are presumed innocent until proved guilty. The principles of law that govern criminal trials are radically different from principles that govern civil/administrative matters. A criminal trial proceeds on the principle of innocent until proved guilty whereas the civil consequences of a criminal act are decided on the principle of preponderance of probabilities. The pendency of a criminal trial does not prohibit the University from taking action on allegations that form part of the criminal trial. To require the University to wait till the conclusion of criminal trial, would in essence reward the petitioners and condone their acts. The petitioners cannot invoke the pendency of the criminal trial, as a circumstance, that should allow them to continue their course. Due regard to age of the petitioners, who are minors, may have Civil Writ Petition No.22623 of 2010 (O&M) -9- persuaded this Court to allow them to complete their courses but the allegation of submitting incorrect documents while taking admission does not entitle the petitioners to any such consideration. It would once again be necessary to emphasise that before taking a decision to terminate the petitioners' undergraduate courses, the University issued a notice dated 13.09.2010 asking students, who were admitted under the DASA scheme, to submit their original passports/citizenship cards for verification. The petitioners did not come forward to submit any document much less the original documents. The plea that documents are with the CBI, is a mere excuse as the challan has been presented, and the petitioners could have easily presented copies of the documents, if not before the University but at least before this Court. The argument that the petitioners' course has been terminated without affording an opportunity of hearing, in my considered opinion is incorrect as the petitioners failed to respond to notices calling upon them to submit original documents. A perusal of the carefully worded averments in the writ petition reveals that the petitioners do not refer to any material or document that may even remotely suggest that they are bonafide citizens of Nepal. Were there any truth in the petitioners' plea, they would have appended these documents with the writ petition and vociferously asserted their status as bonafide citizens of Nepal. The petitioners' plea that they cannot append documents or material as it would jeopardize their defence in the ongoing criminal trial rings hollow. If the petitioners are bonafide citizens of Nepal, documents to prima- facie establish their citizenship would only advance their cause. Civil Writ Petition No.22623 of 2010 (O&M) -10- The absence of any material to even remotely infer that the petitioners are bonafide resident of Nepal, leaves me with no option but to hold that petitioners submitted “forged” documents while obtaining admission. Violation of principles of natural justice, invariably renders an order null and void. The principles of natural justice, however, do not operate in a vacuum. Where the person aggrieved has no defence or no material to prima-facie establish a defence, remitting a matter for compliance of principles of natural justice would be a mere formality and an exercise in futility. Reliance by counsel for the petitioner is upon a Division Bench judgment reported as Biswajit Saha and others v. Dr. B.R.Ambedkar National Institute of Technology (Deemed University) and others, 2007(4) S.C.T., 368 is entirely misplaced as in the said case, the petitioners were not accused of perpetuating a fraud while taking admission but were accused of aiding and abeting the suicide of another student. The other judgments, namely, M/s Coal India Ltd. And Ors. v. Alok Fuels (P) Ltd., 2010(10)SCC, 157, Kinjal Vasantrai Sangani v. State of Maharashtra and State of Orissa v. Harapriya Bisoi, AIR 2009 SCC, 2991, are irrelevant for the present controversy. It is, however, true that an undertrial or a convict is entitled to pursue an academic course of his choice and mere pendency of a criminal trial may not lead to an automatic termination of his course. The question, in my considered opinion, is not one of the right of an accused to seek education but whether a student who obtains admission by submitting incorrect information based upon documents that are prima-facie forged, Civil Writ Petition No.22623 of 2010 (O&M) -11- should be allowed to continue his course of instruction? The answer to this question must necessarily be in the negative. To allow such a student to continue his course of instruction would in essence reward him for his wrongs and condone his fraudulent acts. Courts tend to take a lenient view of misdemeanors of young students but where fraud is the foundation of admission, cannot be condoned. However, there is an aspect of this case, that requires consideration. The petitioners admittedly filed appeals. The appeals were dismissed for want of jurisdiction. Rule 8.4 of the Undergraduate programme reads as follows:- “8.4 Appeal against termination- A student whose programme is terminated on account of inadequate academic performance or otherwise has the right to appeal to the Chairman, Senate for reconsideration. While making the appeal against termination, he/she is expected to give reasons for his/her poor academic performance and/or to explain why his/her position merits reconsideration. The Senate shall take a final decision after considering all the available inputs. However, the Senate will not entertain any further appeal for review unless substantial additional information is brought to its notice.” A perusal of Rule 8.4 clearly establishes that a student whose programme is terminated on account of inadequate Civil Writ Petition No.22623 of 2010 (O&M) -12- academic performance “or otherwise” has the right to appeal to the Chairman/ Senate for reconsideration. The use of the word “or otherwise” clearly indicates that an appeal can be filed in situations, other than termination of the undergraduate programme for adverse academic performance. An appeal is maintainable, if the undergraduate programme, of a student is terminated for submitting incorrect documents. The appeals filed by the petitioners have been dismissed on the ground that the appeals are not maintainable. The order passed, while dismissing the appeal, reads as follows:- “The admission of Lovkesh Bhayana, roll No.08103015, Branch Computer Science & Engineering was cancelled by the Senate in its meeting held on 28.09.2010 & continued on 01.10.2010 (copy enclosed). As there is no provision for appeal against provisions of rule 2.1 of the rules and Procedures of the UG program, the application No.9190, dated 07.10.2010 was filed. The personal file of student Mr. Lovkesh Bhayana is with the CBI.” The order dismissing the appeals on the ground that there is no provision for appeal against an order passed under Rule 2.1 of the Rules, is contrary to Rule 8.4. However, the question that now arises is whether the University should be directed to reconsider the appeals filed by the petitioners. In my considered opinion, asking the University to decide the appeals afresh, would be an exercise in Civil Writ Petition No.22623 of 2010 (O&M) -13- futility as the petitioners have neither referred to nor placed on record any material that may even remotely, much less prima-facie, suggest that they are bonafide residents of Nepal. Lest the petitioners' defence, in the criminal trial, be prejudiced in any manner, any reference to the guilt or complicity of the petitioners, shall not be read to their prejudice in the pending criminal trial. In view of what has been stated hereinabove, the writ petitions are dismissed with no order as to costs. October 5th, 2011 (RAJIVE BHALLA) nt JUDGE