IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.1140/2006 Date of decision 5.7.2007 Gaurav Bhardwaj and others …Petitioners Vs. H.P. University & another …Respondents Coram: The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner: Mr. Sandeep Kaushik, Advocate. For the Respondents : Mr. S.R. Sharma & Mr. V.D. Khidta, Advocates Rajiv Sharma,J. The brief facts necessary for the adjudication of this petition are that the petitioner No.1 was admitted to the LLB course in the year 2006. He was allotted a room in the Tagore Hostel. The petitioner No. 2 was a student of 6th Semester in Masters in Computer Application and was allotted the Dr. Y.S. Parmar Hostel. The petitioner No.3 was a student of 4th Semester in Masters in Tourism Administration and was staying as a boarder in Dr. Y.S. Parmar Hostel. The petitioner No.4 was a student of 6th semester in LLB and was allotted the Dr. Y.S. Parmar Hostel. The petitioner No.5 was studying Law in the 6th semester and was allotted Dr. Y.S. Parmar Hostel. An FIR was registered bearing No. 69 of 2006 dated 25.4.2006 under sections 147, 148, 149, 436, 492, 323 of the Indian Penal Code read with section 3 of the Prevention of Damage to Public Property Act at Police Station Boileau Ganj. The names of the petitioners find mention in the FIR dated 25.4.2006. They were issued notices by the Chief Warden on 10th May, 2006 whereby they were called upon to 1 Whether reporter of local papers are allowed to see the judgment ? yes. 2 immediately vacate the hostel accommodation after the registration of the FIR No. 69 of 2006 dated 25.4.2006. The copy of one of the notices issued to the petitioner Sunil Mankotia has been placed on the paper book of this petition. Notices were issued to the petitioners by the Dean of Studies on 10th May, 2006. The copy of one of the notices issued to the petitioner No.2 has been placed on the record. Similar copies were addressed to rest of the petitioners. The petitioners had filed replies to the show cause notices dated 10th May, 2006. The Dean of Studies had issued office order dated 21st July, 2006 whereby the petitioners were expelled from the Departments of the University for the academic session 2006-2007. The copy of one of the office order issued to the petitioner No.4 has been placed on record and similar office orders were issued against the other petitioners vide Annexures P-5 to P-8. The Registrar of the University had issued notification dated 8th August, 2006 notifying the order of expulsion of the petitioners vide Annexure P-9 to P-12. Mr. Sandeep Kaushik, Advocate appearing on behalf of the petitioners had strenuously argued that no notice was issued to the petitioners before the issuance of communication dated 10th May, 2006 whereby they were directed to vacate the hostel accommodation. He also contended that the expulsion of the petitioners is in breach of the Statute and the Ordinance framed thereunder. He further submitted that the petitioners had been expelled merely on the basis of registration of FIR dated 25th April, 2006 and the replies filed by them to the show cause notices had not been dealt with in proper perspective by the authorities. Mr. S.R. Sharma, Advocate had supported the orders whereby the petitioners were directed to vacate the hostel accommodation and were also rusticated/expelled from the Departments. I have heard the parties and perused the record. 3 Firstly the Court has to consider whether the expulsion of the petitioners from the hostel was warranted under the law or not. The University had issued Handbook of Information and clause 20.5 of the same deals with the conduct and discipline of the students in the hostel. What had been stated in the letter dated 10th May, 2006 is that the petitioners had violated sub-clause (b), (d), (h), (vi) & (ix) of clause 20.5 of Handbook of Information. The petitioners had been expelled without holding any inquiry to ascertain whether they had violated any of the clauses enumerated in the notice or not. The decision had been taken apparently merely on the basis of the registration of FIR under section 147, 148, 149, 452, 323 and 325 of the Indian Penal Code. The petitioners were required to be heard effectively before the issuance of letter dated 10th May, 2006. The notice was required to be issued calling upon the students why they should not be expelled from the hostel. No such notice has been issued by the authorities and straightway they had been directed to vacate the hostel. The petitioners were required to file replies to the show cause notices and at least a preliminary inquiry was required to be conduced whether they had violated any of the conditions enumerated in the notices. The Court is of the firm opinion that without issuing any notice and holding inquiry, they could not have been expelled from the hostel. Secondly, the Court had to consider whether the notice dated 10th May, 2006 whereby the petitioners had been served with a notice under Ordinance 22.20 is in accordance with law or not. The basis for issuance of notice dated 10th May, 2006 seeking the expulsion of the petitioners within seven days is again based on the registration of FIR No. 69 of 2006 dated 25th April, 2006. Admittedly no independent inquiry except the registration of an FIR has been made the basis for issuance of notices dated 10th May, 2006. The registration of FIR only sets the criminal 4 machinery into motion. The petitioners had filed reply to the show cause notice within the stipulated period. The petitioners had denied their involvement as alleged on the intervening night of 24/25th April, 2006. They had denied their presence even on the spot. They have also taken a specific objection that the notice could not have been issued under Ordinance 22.20 since it deals with entirely different situation. They have further explained that Ordinance 22.20 deals with the situation where the orders of rustication and expulsion have been passed after giving the student an opportunity of being heard and report to this effect is sent to the Registrar. The Statute 23 deals with the maintenance of discipline amongst the students of the University. The same is reproduced as under: “23. Maintenance of Discipline among students of the University:- (1) All powers relating to discipline and disciplinary action are vested in the Vice-Chancellor. (2) The Vice-Chancellor may delegate all or such powers as he deems proper to such other persons as he may specify in this behalf. (3) Without prejudice to the generality of power to enforce discipline under the State, the following will amount to act of gross indiscipline:- a. Physical assault, or threat to use physical force, against any member of the teaching and non- teaching staff of any institution, department and against any student within the Himachal Pradesh University; b. Carrying or use of, or threat of use of any weapon; c. any violation of the provisions of the Civil Right Protection Act, 1976; d. violation of the status, dignity and honour of students belonging to the Schedule Castes and Tribes; 5 e. any practice whether verbal or otherwise derogatory of women; f. any attempt at bribing or corruption in any manner; g. willful destruction of institution and property; h. creating ill-will or intolerance on religious or communal grounds; i. causing disruption in any manner of the academic functioning of the University system; j. ragging as per Statute 23-A. (4) Without prejudice to the generality of his power relating to the maintenance of discipline and taking such action in the interest of maintaining discipline as may seem to him appropriate, the Vice-Chancellor, may in the exercise of his powers aforesaid order or direct:- a. that any student or students be expelled or b. any student or students be, for a stated period, rusticated; or c. be not for a stated period, admitted to a course or courses of study in a College, Department or Institution of the University, or d. be fined with a sum of rupees that may be specified, or e. be debarred from taking a University or College or Departmental Examination or Examinations for one or more years; or f. that the result of the student or students concerned in the Examination or Examinations in which he or they have appeared be cancelled. (5) The Principals of the Colleges, Heads of Halls, Deans of the Faculties, Heads of Teaching Departments in the University and the Librarian, Dean of Studies, Chief Warden and Wardens of Hostels shall have the authority to exercise all such disciplinary powers over students in their respective Colleges. Faculties and Teaching Departments in the University as may be necessary for the proper conduct of institution. Halls and teaching in the concerned Departments. They may exercise their authority through delegate authority to, such of the teachers or a Committee 6 of the teachers, in their Colleges, Institutions or Departments as they may specify for these purposes. (6) Without prejudice to the powers of the Vice-Chancellor and the person to whom powers are delegated under Clause (2) detailed rules of discipline and proper conduct shall be framed. These rules may be supplemented, where necessary, by the Principals of Colleges, Heads of Halls, Deans of Faculties and Heads of Teaching Departments in this University. Each student shall be required to sign declaration that on admission he submits himself to the disciplinary jurisdiction of the Vice Chancellor and the several authorities of the University who may be vested with the authority to exercise discipline under the Act, the Statutes the regulations and the rules that have been or may be framed here under by the University.” The Ordinances 22.18, 22.19 and 22.20 are reproduced below for better appreciation of the rival submissions made by the learned counsel for the parties: “22.18. Rustication shall mean the loss of one academic year i.e. the student concerned shall not be allowed to appear in any University examination during the academic year in which he is rusticated. The actual period of exclusion from the college or institution shall depend upon the time of the year when the rustication order is passed. A rusticated student may, with the permission of the Head of the College or Institution concerned, rejoin his class in the same college or institution at the time of admission in the following academic year.” 22.19. A student, who is expelled from a college or institution, shall not be allowed to appear in any University examination during the academic year in which he is expelled and the next following year, and shall not thereafter be re-admitted to the same or any other college or institution without the prior sanction of the Vice Chancellor. 22.20. Each case of rustication or expulsion shall be reported to the Registrar of the University immediately after the order is 7 passed. A certificate signed by the Dean of Studies/Associate Dean/Head of the College or Institution to the effect that the student had been given adequate and reasonable opportunity to explain his position before the order was passed shall accompany the report.” Mr. S.R. Sharma, Advocate had drawn the attention of this Court to the proceedings of the meeting of the Committee constituted by the Vice- Chancellor vide notification dated 23rd May, 2006 filed along with the reply. The relevant portion of the proceedings is reproduced below: “The replies thereto and the Police Challans were also placed before the Committee. After considering the said material, the Committee was of the considered opinion that acts of gross indiscipline and misconduct have been committed by these students which amount violation of Ordinance 22.16 of the First Ordinances of the Himachal Pradesh University, 1973 (as amended) and the explanations rendered by these students in their above referred replies to the Show Cause Notices were not found to be satisfactory vis-à-vis their involvement in the act of indiscipline and misconduct by them and as such the Committee after detailed deliberations recommends as under: 1. The students who are studying in the different departments be put under ‘Conduct Probation’ for a period of one academic year under the provisions of Ordinance 22.16 of the Ordinances ibid; 2. Those students who have not taken admission in any Course/Teaching Department are recommended to be debarred from seeking admission to a Course or Courses of study in a College, Teaching Departments of the University and Institutions affiliated to and maintained by the Himachal Pradesh University; 3. The Committee further recommends that in case any of the student as listed above has already been admitted to any discipline in the University, to a Course or Courses of study in a College, Teaching Departments of the University and Institutions affiliated to and maintained by the Himachal Pradesh University before the consideration of replies to 8 the Show Cause Notice to him, he shall stand expelled for the academic session 2006-2007 under the provision of Statues 23 (4) (a) of the First Statutes of Himachal Pradesh University, 1970 (as amended). The meeting ended with a vote of thanks to the Chair.” Mr. Sharma further contended that there is no violation of principles of natural justice since the show cause notices were issued to the petitioners and they had been permitted to file the replies which were considered by the committee constituted on 23rd May, 2006 and it was only thereafter the office orders dated 21st July, 2006 and 8th August, 2006 were issued by the Dean of studies and the Registrar of the University. The basis for the issuance of the notification is the registration of FIR only. The University had not conducted any independent inquiry to go into the veracity of the allegations levelled against the petitioners. The notices have also been issued under Ordinance 20.20 which was not attracted at all in the present case at the initial stage. The Ordinance 20.20 only comes into play when the student is already rusticated/ expelled and the authorities send this information to the Registrar with the report disclosing therein that the student was heard before his expulsion. The issuance of notice is the out come of non-application of mind. The object of first information report from the view point of the informant is to set the criminal law in motion. The report does not constitute substantive evidence though it is important and conveying the earliest information about the occurrence. The Apex Court has explained the object and use of the first information report in Hasib v. State of Bihar, AIR 1972 SC 283 as under: “Here the High Court appears to have clearly gone wrong in law. The legal position as to the object, value and use of first information report is well-settled. The principal object of the first information report from the point of view of the information is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain 9 information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted. It can, however, only be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Indian Evidence Act or for contradicting him under Section 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses. The High Court was, therefore, in error in seeking corroboration of the testimony of P.W.10 from the F.I.R. of which he was not the maker. The petitioners had filed reply on 15th May, 2006 to the notice dated 10th May, 2006 though the same from the very inception was bad in law. They had denied their involvement in any of the activities which had taken place on the intervening night of 24/25th April, 2006. The reply was detailed one. The authorities of the University were bound to consider the reply filed by the petitioners. What has been stated in the proceedings of the meeting constituted by the Vice Chancellor on 23.5.2006 is that the replies and the police challans were placed before the committee. The copy of the police challan could not be but before the committee since the FIR was registered on 25th April, 2006 and the matter had not gone at that stage to the competent court. The committee was only having the copies of the replies and the FIR dated 25th April, 2006. The committee had not taken into consideration the replies filed by the petitioners except making a bald assertion that they were not found satisfactory. In what manner the reply was not satisfactory has not been explained. The version of the students was also required to be considered by the committee in its deliberations which took place on 23rd May, 2006. The committee had to 10 consider only replies filed by the petitioners to the notices but it has exceeded its jurisdiction by making the following recommendations: “The Committee further recommends that in case any of the student as listed above has already been admitted to any discipline in the University, to a Course or Courses of study in a College, Teaching Departments of the University and Institutions affiliated to and maintained by the Himachal Pradesh University before the consideration of replies to the Show Cause Notice to him, he shall stand expelled for the academic session 2006-2007 under the provision of Statues 23 (4) (a) of the First Statutes of Himachal Pradesh University, 1970 (as amended).” It was only on the basis of the recommendations made by the committee that the office order dated 21st July, 2006 was issued by the Dean of Studies expelling the petitioners from the Departments. In sequel to the office order dated 21st July, 2006, the Registrar had issued notification dated 8th August, 2006 notifying the expulsion of the petitioners. It is evident from the phraseology employed in Ordinance 20.20 that the certificate is required to be signed by the Dean of Studies to the effect that the student had been given adequate and reasonable opportunity to explain his position before the order was passed accompanying the report to be furnished to the Registrar. The emphasis is on the words ‘adequate and reasonable opportunity.” In the present case the notice itself has been issued under Ordinance 22.20 as is evident from Annexure P-2 dated 10th May, 2006. The petitioners had filed the replies to this notice in detail but the same have not been taken into consideration at all by the committee constituted vide order dated 23rd May, 2006. The authorities were bound to consider each and every averment made in the reply filed to the show cause notice. The same could not be brushed aside by stating that the same was not found satisfactory. The entire exercise undertaken by the authorities was 11 mechanical without taking into consideration even the relevant provisions of law. The reply furnished by the petitioners to the notice was required to be taken into consideration and in the absence of the same, it cannot be presumed that the petitioners had been afforded adequate and reasonable opportunity as contemplated under Ordinance 20.20. The authorities were swayed by the fact that an FIR has been registered on 25th April, 2006 where the petitioners’ names have been mentioned and only on that basis the notices were issued. The authorities of the University were bound to make an inquiry after hearing the petitioners. There was no material before the committee except the report of the FIR dated 25th April, 2006. It has already been discussed above that the registration of FIR only sets the criminal machinery in motion. Thereafter the investigation is required to be gone into and on that basis the challan has to be put up in the competent court of law. It appears that the authorities had already made up their mind to expel the students merely on the basis of the registration of FIR dated 25.4.2006. There is a glaring defect in the order dated 8th August, 2006 passed by the Registrar since a certificate is required to be signed by the Dean of Studies that an adequate and reasonable opportunity to explain the position has been provided to the students accompanying the report. The University had also not placed any material on record to substantiate that in fact such certificate was accompanying the report by the Dean of Studies. The replies furnished by the petitioners have not been taken into consideration at all since as per the language employed in Ordinance 20.20 it was incumbent upon the Dean of Studies to certify that the petitioners had been afforded an adequate and reasonable opportunity to explain their position. The Dean of Studies was also one of the members of the committee constituted by the Vice Chancellor. The committee after 12 deliberations had recommended the expulsion of the students. The Dean of Studies had implemented the orders of the committee of which he was also one of the members. The Committee was not called upon to make the recommendation. It was constituted primarily to look into the replies filed by the petitioners. The expression report as mentioned in Ordinance 20.20 pre- supposes that inquiry ought to have been held after complying with all the provisions of law as well as principles of natural justice. The report in the context in which it is used in Ordinance 20.20 will mean the inquiry report. The Hon’ble Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei and others AIR 1967 Supreme Court 1269 has held that even an administrative order which involves civil consequences, has to be passed consistently with the rule of natural justice. Their Lordships have held as under:- “It is true that some preliminary enquiry was made by Dr. S. Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907, should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order while involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right insetting aside the order of the State.” 13 The Hon’ble Supreme Court in a land mark judgment A.K. Kraipak and others v. Union of India and others AIR 1970 SC 150 has held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The Supreme Court has opined as under:- “The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought (1) no one shall be a judge in his own cause (Nemo debet ess judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that