SCA/8693/2008 1/67 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8693 of 2008 with CIVIL APPLICATION No.11120 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAJNISH KUMAR RAI - Petitioner(s) Versus THE GUJARAT UNIVERSITY & 2 - Respondent(s) ========================================================= Appearance : MR HARIN P RAVAL for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1, 3, MR SN SHELAT, Ld. Sr. Counsel WITH MRS VD NANAVATI for Respondent(s) : 1, MR KAMAL TRIVEDI, Ld. ADV. GENERAL WITH MS SK VISHEN for Respondent(s) : 2, MR UMANG OZA, AGP FOR RESPONDENT NO.3. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL SCA/8693/2008 2/67 JUDGMENT Date : 16/10/2008 ORAL JUDGMENT 1. The short facts of the case appears to be that the petitioner, though an IPS Officer, in capacity as a student of LL.B., appeared for the examinations of the Second Semester of 1st LL.B. On 25.4.2008, there was paper of Banking and Negotiable Instruments Act. The timings were from 10.30 a.m., to 1.30 p.m. As per the petitioner, one lady observer had accosted another girl student in the class-room and started addressing to such girl student in loud voice. At that stage, the petitioner requested the lady Supervisor to speak softly as he was being disturbed. The said lady Observer came to the desk of the petitioner after few minutes and started examining the petitioner's belongings. She opened pencil box and took out 6 inch long foot-ruler (scale) from the said box. As per the petitioner, the said foot-ruler belonged to his six-and-a-half year old son and the petitioner, with a view to make use of the foot- ruler at the time of preparing tables in the SCA/8693/2008 3/67 JUDGMENT examination, had carried the same. The lady Supervisor as per the petitioner raised the objection that something was inscribed on the foot-ruler, which the petitioner stated, might have been written by his 6 ½ old son. In spite of his explanation, the petitioner was prohibited for half-a-hour to write the answer- book. It appears that there was no reporting of such incident before the University, but as the aforesaid incident was reported in press, the University called upon the Supervisor and the other officer to submit the report. Based thereon, on 26.4.2008 the Sr. Supervisor of the University, Shri R.Y. Mankad gave a report to the Director of Examinations, copy whereof is produced on page 163 and in the said report he has narrated the incident happened during the supervision on 25.4.2008 in the Examination Centre of Siddharth Law College at Gandhinagar. The other aspects may not be relevant, but in the said report he has referred to the information provided to him by Prajapati and the observer, which has been reproduced in quotes, SCA/8693/2008 4/67 JUDGMENT English meaning thereof can be extracted as under:- “When I was checking in the block, at that time, the said officer informed me that I am being disturbed and the class is being disturbed. At that time, the lady informed him that I am observer and I am discharging my duty. The officer also informed her that I am a responsible officer and I am also IPS responsible officer. Therefore, I undertook the checking of the compass box and the aforesaid literature of the examination was found”. 2. In the earlier portion of the report, there is reference that one Mr.Prajapati informed him (Shri Mankad) that the observer is calling him and observer informed him that one student had brought literature of the examination in the examination hall and it was found during the checking and the said writing was over small plastic foot-ruler and 5 to 6 points were there of the examination paper of the same day. It further appears that the observer also gave SCA/8693/2008 5/67 JUDGMENT statement, in which she first referred to the checking of the compass box and thereafter referred to the talk by her with the petitioner about getting disturbance and the discharge of the duty. She also stated that as and when the University calls her for further inquiry she shall remain present. The pertinent aspect is that in the said statement of Rajeshree H. Mengar, random checking and the talk for disturbance is referred to during the period of 3 O'clock to 6 O'clock in the evening and the random checking, which she had referred to is of 4.30 p.m., whereas for the inspection in the first session, the time shown is at 11.30 a.m., of the random checking. It also appears that the report was submitted on 26.4.2008 by Incharge Principle, Ms.Meenakshi Darekhan, in which it has been stated that the student was one of the two girls and there was doubt that something was written and, therefore, the paper was taken away by him and it was instructed to give him after half-an-hour. The foot-ruler was of a small size of 6 inch and a thin chit, which SCA/8693/2008 6/67 JUDGMENT can be removed was affixed on the same, over which it was appearing that some points were written, which was seen by her and observer. Thereafter on the spot the same was torn off and the foot-ruler was broken and was thrown away in the dustbin. She has referred to the seat numbers of three students, which included the seat number of the petitioner. It also appears that the statement of Mr.D.D.Prajapati, who was Jr. Supervisor was also recorded in which there was reference to the foot-ruler with writing found from one student, who was permitted to write the answer paper after half-an-hour. 3. It appears that thereafter the University based on the aforesaid report and the statement proceeded to initiate action against the petitioner by issuing notice and the petitioner had appeared in response thereto and had asked for certain documents, which as per the petitioner, were not supplied and the petitioner apprehended that the inquiry may be hushed up. At that stage, the petitioner preferred Special Civil Application No.7292 of 2008. This Court SCA/8693/2008 7/67 JUDGMENT in the said proceedings passed the following order:- 1. The petitioner has preferred the petition for appropriate writ to hold and declare that the action of the respondents herein in proceeding to inquiry into the allegations against the petitioner without supplying necessary documents be declared as unlawful and highhanded or arbitrary. 2. When the matter is taken up for hearing, Mr.Shelat, learned counsel for Mrs.Nanavati, learned counsel appearing for the University declared before the Court as under: 1) The University will issue an additional notice containing the details, the material which is to be used against the petitioner in the inquiry in question. 2) The punishment which is proposed to be imposed upon the petitioner shall also be stated in the said notice. SCA/8693/2008 8/67 JUDGMENT 3) The material which may be referred to in the next notice and to be used against the petitioner shall also be supplied to the petitioner. 3. After the aforesaid details are supplied to the petitioner, opportunity of hearing shall be given and thereafter, appropriate decision shall be taken. 4. In the above view of the matter, Mr.Raval, learned counsel for the petitioner does not press the petition at this stage. Permission granted. Disposed of as withdrawn.” 4. Thereafter, the show-cause notice has been issued and the petitioner submitted reply. There are various, inter se, disputes between the petitioner and the University on the aspects as to whether all documents were supplied to the petitioner or not and as per the petitioner, opportunity for cross-examination of the witnesses was expressly demanded. However, conduct committee, which is known as 'Suddhi SCA/8693/2008 9/67 JUDGMENT Samithi' called the petitioner for personal explanation and the hearing and ultimately the committee took the decision, whereby it found that the misconduct was committed and the punishment recommended was for cancellation of the result and be declared failed. The said declaration of Suddhi Samithi has been considered by the body of the University on 10.6.2008 and after deliberations amongst various members of the Executive Council, it was decided by the majority that there was no question of giving any cross-examination, since such permission for cross-examination is never granted to any student in the history of the University and it was also observed that if such permission was granted considering the status of the petitioner, contradictions may arise in the statements of the witnesses. Thereafter the majority resolved for going by the recommendations of the Suddhi Samithi for imposition of the punishment. It is under these circumstances the present petition before this Court by the petitioner herein. SCA/8693/2008 10/67 JUDGMENT 5. As per the petitioner, he is a very upright, honest, sincere and strict IPS Officer and while on duty he has conducted large number of important and sensitive cases, wherein high dignitaries and high officials were arrested/interrogated, whose details are given by him on pages 6 and 7 of the memo of the petition. It is the case of the University that all such things, even if they were, are irrelevant. However, as per the petitioner, he is having a bright educational career and there is no reason for him to indulge into alleged misconduct. As per the petitioner, as he is having reputed good service record, the finding of misconduct and/or the punishment on such ground would tarnish his image as IPS officer, whereas as per the University all such aspects are irrelevant since the capacity of the petitioner is as student of LL.B., only. 6. Heard Mr.Raval, learned Counsel appearing for the petitioner, Mr.S.N. Shelat, learned Counsel with Mrs.Nanavati for the University, Mr.Kamal Trivedi, learned Advocate General for Vice SCA/8693/2008 11/67 JUDGMENT Chancellor of the University and Mr.Umang Oza, learned AGP for the State Government at length. 7. In order to examine the factual controversy, reference to certain legal position, which may have bearing to the scope of the judicial scrutiny by this Court in a petition under Article 226 of the Constitution of India may be relevant. It can hardly be disputed that the proceedings of the action to be taken by the Suddhi Samithi or the University, as the case may be, are at par with the domestic Tribunal and, therefore, the principles of natural justice as it may require considering the facts and circumstances of each case would, in any case, be required to be followed by such domestic Tribunal. It is by now well settled that observance of principles of natural justice cannot be applied like an absolute straight- jacket formula, but its scope and ambit may vary from case to case. But in all cases the crucial test for extending the scope and ambit of the observance of principles of natural justice would be as to whether giving of such an SCA/8693/2008 12/67 JUDGMENT opportunity would have enabled the Tribunal to have a fair and a detailed scrutiny of the matter or not. It can hardly be disputed that imposition of the penalty by Suddhi Samithi or the University, as the case may be, is by way of penal action upon the student concerned. Therefore, when the penal action is to be taken by such domestic Tribunal like that of Suddhi Samithi or the University, as the case may be, it would be required for such domestic Tribunal to follow the principles of natural justice against the person or the student, as the case may be, who is to face the ultimate decision, may be of punishment or no punishment. On the aspects of applicability of principles of natural justice to such proceedings as it exists in the present case, for consideration by this Court, there is no dispute, therefore, no more discussion may be required on the said aspect. However, in cases where there is non-observance of principles of natural justice and a complaint is brought to this Court in a petition under Article 226 of the Constitution of India, law SCA/8693/2008 13/67 JUDGMENT has developed further and the same is that unless the prejudice is demonstrated to the satisfaction of the Court, this Court may decline the entertainment of the complaint for non-observance of the principles of natural justice. 8. The attempt on the part of the learned Counsel for the respondent University was to rely upon the decision of this Court in the case of “Upadhyaya Sharad Pravinchandra v. The Gujarat University, Ahmedabad” decided on 17.8.1978 (in Special Civil Application No.1097 of 1978 and allied matters) to contend that the cross- examination should not be permitted in the educational matter, where domestic Tribunal has to decide the question. But the pertinent aspect is that in the very decision, the Division Bench of this Court did observe as under:- “Now, there is no invariable rule of natural justice, which requires that the cross examination of the persons whose statements have been recorded and relied upon must be SCA/8693/2008 14/67 JUDGMENT given. The rules of natural justice require that a party against whom an allegation is made should be given a hearing. Right of hearing does not include the right to cross examine. Whether to permit cross examination in each case must depend upon the facts and circumstances of the case.” 9. Thereafter, the facts of those cases were examined by the Division Bench and it was found that the cross-examination was not necessary. 10.This Court in another unreported decision in Special Civil Application No.357 of 1975 decided on 10.4.1975 did observe that the observance of the principles of natural justice in their strict form may destroy the very purpose and may be more damage than their non-observance would do, but in that decision also, the Court reiterated that the principles of natural justice are flexible and their applicability would differ in different circumstances. This Court, having found the misconduct was committed, did not upset the decision on the ground of breach of the principles of natural SCA/8693/2008 15/67 JUDGMENT justice. In the decision of the High Court of Jammu and Kashmir in the case of Mohinder Singh Jamwal v. University of Jammu and Ors., reported in 1984 (J.K.), 40, it was, inter alia, found at para 10 that the question of violation of natural justice comes up when something is done against a person to his detriment, without hearing him and such was not the case found by the High Court of Jammu and Kashmir, but in the said decision also, no departure is made from the observance of the principles of natural justice and considering the facts of that case, the High Court found that there was observance of principles of natural justice and, therefore, further opportunity was not required. 11.This Court in the case of Hindustan Finstock Limited v. Securities and Exchange Board of India, reported in 2002(3) GLR, 2565, did observe, inter alia, at para 12 as under:- “12. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified is in dispute, right of crossexamination must inevitably form part of play in action but where there is no lis regarding the facts but certain explanation of the SCA/8693/2008 16/67 JUDGMENT circumstances, there is no requirement of crossexamination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, that no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of crossexamination per se does not invalidate or vitiate the decision aggrieved at fair play.” (Emphasis supplied) After observing above, this Court further found, in the facts of that case, that it was not required for SEBI to permit cross-examination while observing the principles of natural justice. In the very decision, on the aspects of entertaining the complaint of breach of principles of natural justice, it was, inter alia, observed at para 13 as under:- “13. ... Therefore, ultimate analysis of various case laws comes to conclusion that the court may strike down the action of the authority if taken in breach of principles of natural justice only if the prejudice is shown or proved and the action is in breach of principles of natural justice.” Thereafter, the Court in the facts of that case, observed that no prejudice was caused and, therefore, mere denial of cross-examination could not be said as prejudice caused in the SCA/8693/2008 17/67 JUDGMENT facts of that case. 12.This Court in the case of Rajesh Chandulal Purohit v. Saurashtra University and Anr., reported in 1997(1) GLR, 317 did observe that if there is no notice/no hearing or no opportunity whatsoever, it would be a void action for non- observance of principles of natural justice, but in a case where the hearing has been given, but alleged as not adequate, the question of prejudice may be required to be examined and the action, pre se, would not be bad on the ground of breach of principles of natural justice. 13.The Apex Court, in case of Karnataka Public Service Commission and Others v. B.M. Vijaya Shankar and Ors, reported in AIR 1992 SC, 952 did observe, inter alia, at para 4 as under:- “4. ... Natural justice is a concept which has succeeded in keeping the arbitrary action within limits and preserving the rule of law. But with all the religious rigidity with which it should be observed, since it is ultimately weighed in balance of fairness, the Courts have been circumspect SCA/8693/2008 18/67 JUDGMENT in extending it to situations where it would cause more injustice than justice. Even though the procedure of affording hearing is as important as decisions on merits yet urgency of the matter, or public interest at times require flexibility in application of the rule as the circumstances of the case and the nature of the matter required to be dealt may serve interest of justice better by denying opportunity of hearing and permitting the person concerned to challenge the order itself on merits not for lack of hearing to establish bona fide or innocence but for being otherwise arbitrary or against rules.” (Emphasis supplied) 14.Thereafter in the facts of that case, it was also observed by the Apex Court in the said decision, inter alia, at para 5 as under:- “5. ... The Tribunal appears to have been swayed by principles applied by this Court where an examinee is found copying or using unfair means in the examination. But in doing so the Tribunal ignored a vital SCA/8693/2008 19/67 JUDGMENT distinction that there may be cases where the right of hearing may be excluded by the very nature of the power or absence of any expectation that the hearing shall be afforded. Rule of hearing has been construed strictly in academic disciplines. It should be construed more strictly in such cases where an examinee is competing for Civil Service post. The very nature of the competition requires that it should be fair, above board and must infuse confidence. If this is ignored then, as stated earlier, it is not only against public interest but it also erodes the social sense of equality.” (Emphasis supplied) Ultimately, in the facts of that case, the Apex Court found that the Tribunal had misdirected itself and, therefore, the order of the Tribunal could not be maintained. 15.The aforesaid goes to show that the observance of principles of natural justice before imposition of the penalty is a must by any SCA/8693/2008 20/67 JUDGMENT domestic Tribunal like that of the University or the Suddhi Samithi, as the case may be. What shall be the scope and ambit of the observance of the principles of natural justice may vary from facts to facts. If it is found that there is variations in the statements of the witnesses upon which the reliance is placed for initiating action or a reasonable case based on probability may be on circumstantial evidence or otherwise, cannot be gathered, it may require total observance of principles of natural justice, which may include permitting cross-examination of the witnesses, who made statement or, who stated for explaining the circumstances or the material, as the case may be. All such, in any case, may be required, if this Court, while entertaining the complaints of non-observance of principles of natural justice, finds that prejudice is caused to the person concerned on account of no opportunity of cross-examination of the witnesses and thereby to explore the truth. 16.On the aspects of attracting the power of the SCA/8693/2008 21/67 JUDGMENT University for imposition of the punishment, much grievance has been raised on behalf of the petitioner as well as by the University. The attempt on the part of the learned Counsel for the petitioner was to contend that the material has to be relevant to the examination and the material which is not at all relevant to the subject of the examination cannot be made as the basis for imposition of the punishment, whereas on the behalf of the University, it was contended that once any material is found, the punishment can be imposed. In support of the said contention, the Counsel for the University relied upon the instructions in the question paper. It was stated that instruction No.10 as under:- “10. Exchange of written materials, pencil or other instructions/article is prohibited.” 17.Further at item No.13, it was provided as under:- “13. If you are found in possession of written material in any form of mobile phone SCA/8693/2008 22/67 JUDGMENT of programmed calculator or found talking with other candidates or found in regular or caught absconding with written or blank answer book, you will be immediately expelled and penal action will be initiated after the matter is reported to the authorities.” 18.It was also submitted by the learned Counsel for the university that as per the instructions being guidelines to the Suddhi Samithi, for imposition of penalty of cancellation of the result as failed plus only (A + O only) the same has been permitted if any of the conditions from (a) to (d) are satisfied. Condition No.(d) of such guidelines was pressed in service, whose English translation can be stated as under :- “Small chit, small writing on foot-ruler, writing on rubber, indication or numbers are found.” 19.It was, therefore, submitted that irrespective of the contents of the material once such materials are found, whether it has any relevance to the subject of the examination or SCA/8693/2008 23/67 JUDGMENT not, the punishment can be imposed. 20.It is true that what shall be the discipline at the time of examination are essentially to be left to the academicians for maintaining the standards at the examination. However, as per the settled principles of interpretation of statutes, it must be meaningful and it must have nexus to the object to be achieved for maintaining the standard at the examination and any clause cannot be interpreted, which may result into creating absurdity. If the condition is tested either as prudence or as an academicians, such material must have the relevance to the subject or the examination. It is not necessary that the material must be relevant to the questions asked in the examination, nor it is necessary to see that whether copied or not but it must have direct or indirect nexus with the subject or the examination. If the condition is read in absolute irrespective of the contents of the material, it would result into creating an absurdity while enforcing the condition. SCA/8693/2008 24/67 JUDGMENT Suppose a blank chit is found or a writing of name is found on foot-ruler or writing of name is found