M.M.DAS, J. W.P. (C ) NOS.16459, 16795 & 17180 OF 2010(Decided on 22.11.2010). ARIJIT MAITRA & ORS. ….. … Petitioners. .Vrs. BIJU PATTNAIK UNIVERSITY OF TECH. ORISSA & ORS. ….. ….Opp.Parties CONSTITUTION OF INDIA, 1950 – ART. 21, 226. For Petitioners - M/s. A.A.Das, M.B.Ray, A.K.Behera, B.K.Parida, S.Mohanty, Shelly Das, S.Ray & R.K.Das. For Opp.Parties - M/s. Bijay Ray, B.Mohanty, S.Mohanty, P.Chhotray & B.Moharana (for O.P.3). Addl. Standing Counsel (for O.P.2) Mr. S.Palit (for O.P.1) For Petitioner - M/s. B.K.Ray, B.K.Barik &S.K.Das Mohapatra. For Opp.Parties - M/s. S.Palit, A.K.Mahana,A.Mishra, D.N.Pattnaik & A.Kejariwal (for O.P.1) For Petitioner - M/s. S.S.Mohapatra, P.K.Mohapatra & P.K.Hajare. For Opp.Parties - M/s. Subir Palit, A.Mishra, D.N.Patnaik & A.Kejarwala (for Caveator) M.M. DAS, J. The petitioners are B. Arch. Students, who were continuing the said course at Pilu Modi College of Architecture, Cuttack. They are aggrieved by the directions given in letter dated 13.09.2010 to the College authority and the office order dated 16.09.2010 of the Principal-in-Charge of the College communicating the order dated 13.09.2010 issued in the letter of the Registrar-in-Charge, Biju Pattnaik University of Technology, Odisha. 2. Facts leading to this case, as stated by the petitioners, show that there was some untoward incident on 07.08.2001 in the College campus, when one Soubhagya, Kumar Mishra, while coming from one side and the petitioner no.2 proceeding from opposite direction collided with each other unintentionally. But Soubhagya being aggrieved misbehaved unexpectedly with the petitioner no.2 and there giving rise to an altercation between them and others. Said Soubhagya is a student of 2nd year B. Arch. in the said College, who gave it a colour of ragging and submitted a report before the Markat Nagar Police Station, which has been investigated. The attention of the College authority being drawn in this regard an enquiry was conducted by one Professor L. Nayak, who was asked to submit a report to the Director of the institution on 16.08.2010. In this report after investigation, he clearly observed that this scuffle among the students was mainly due to showing of finger as a mark of vulgar gesture by Sri Soubhagya and it is not a case of ragging, but it is a case of clash between those students on one hand and the said Soubhagya on the other, due to some previous rivalry. 3. This issue was published in the print and broad casted in the electronic media as a case of ragging. After the police investigation was made and the investigation was also made by the College authority, the Government was also informed about the incident on the issue of alleged ragging by the College authorities wherein the College authorities clearly stated that it was a clear case of friction between the students leading to unrest and not a case of ragging but has been deliberately given a colour of ragging. The College authorities also, while intimating the Government, strongly refuted any incident of ragging and it has been clearly stated in the said annexure that since the establishment of the College for last 17 years the institution has been pursuing anti- ragging policies and a student like Soubhagya with his poor academic record has single handedly tried to pollute the academic atmosphere of the institution. 4. The petitioners have also stated several incidents alleging that the said Soubhagya is the cause of the disturbance of the academic atmosphere of the College. One of such incident has been stated disclosing that the said Soubhagya assaulted a 7th semester B. Arch. student, namely, Miss Pabitra Sahoo and when called for discussion, he himself expressed regret for the incident and the matter was settled therein by the committee constituted by the College authorities upon collecting an undertaking from both the students. 5. When the matter stood thus, the opposite party no.1-University issued a letter on 09.08.2010 to the Principal of the College asking him to show cause on the incident of ragging of Soubhagya basing on the news clipping published in the daily ‘The Samaja’ dated 08.08.2010. On receipt of the said letter, the College authority submitted the reply in detail on 18.08.2010 enclosing the report as well as the investigation details of Professor L. K. Nayak and clearly mentioning therein that in course of investigation, it was revealed that the alleged incident took place owing to the vulgar physical gesture of Sri Soubhagya shown to the other students and there was no other motive or incident which can be termed as ragging. It was also mentioned that a minor injury found in the form of a reddish mark on his left cheek and a bruise on his left side neck might have occurred during the scuffle. 6. The petitioners allege that notwithstanding the above clarification given by the college authorities, the University issued a letter on 13.09.2010 on the subject of ragging of Soubhagya, the 2nd year B. Arch. student, which is said to have been issued basing on the finding of the enquiry committee and action directed to be taken was that the petitioners along with others be debarred from studies and University examination for two years with effect from 13.09.2010. According to the said direction, the Principal- in-Charge passed the office order dated 16.09.2010 debarring the present petitioners from continuing their studies and the University examination for two years. 7. A counter affidavit has been filed on behalf of the University stating that, on going through the news item published on 08.08.2010 in a local daily ‘The Samaja’ relating to ragging in the opposite party no.3-College, the University issued a show cause notice to the Principal of the College with regard to the ragging in the said College. The University was also directed by the higher authorities to conduct a detailed enquiry about the said incident since the Human Rights Commission has sought for a 2 report on the said issue. Subsequently, the Principal filed his show cause reply before the University on 20.08.2010. After receiving the said reply, the University conducted a spot enquiry on 24.08.2010-28.08.2010 by collecting version of the students of different semesters. During the course of enquiry, said Soubhagya also filed his written version before the Inquiring Officer. While conducting enquiry, it was found out that prior to the incident on 07.08.2010, said Soubhagya also filed a complaint before the local Police Station alleging ragging by senior students for which the University requested the Inspector-in-Charge to provide information to the Inquiring Officer. Thereafter, from the said documents, it was found out that Soubhagya had also lodged an F.I.R. on 27.10.2010. His father also on 28.07.2010 brought this fact to the notice of the Principal regarding ragging by senior students. The University has alleged that the College authorities disputed the fact of ragging and tried to patch up the said incident and have joined hands with the senior students without taking strict action against such students. 8. Mr. A. A. Das, learned counsel for the petitioners raised two questions before this Court being (i) as to whether the BPUT has the power and authority to issue the impugned order under Anneuxre-6 series, debarring the students from the studies and examination, and (ii) whether the incident as per the material available on record is a case of ‘ragging’ as per the interpretation and the law laid down by the Hon’ble Supreme Court in the case of University of Kerala V. Council of Principals of College in Kerala and others, A.I.R. 2009 SC 2223. He vehemently urged that the University notifications dated 03.09.2009 and 10.09.2009 prescribing guidelines for prevention of ragging in professional educational institutions annexed as Anneuxre-D/1 series and the Regulation of University Grant Commission in that regard annexed as Anneuxre-G/1 to the counter affidavit filed by the University dealing with ragging and the measures to be taken for prevention of ragging at the institution nowhere authorize the University to take action against the students as has been done. Rather, as per the University Grants Commission as well as the decision of the Hon’ble Apex Court, it is the duty of the institutional authority to deal with the case of ragging. Mr. Das, learned counsel submitted that there has been no power given in the University under the Regulation or the Notification to issue the directions as has been done under Anneuxre-6 series and the same are liable to be quashed. Referring to Paragraph-15 of the case of the University of Kerala (supra), he submitted that the Supreme Court has interpreted the word ‘ragging’ as a form of systematic and sustained physical, mental and sexual abuse of fresh students at the college/university/any other educational institution at the hands of senior students of the same institution and sometimes even by outsiders. Ragging means causing, inducing, compelling or forcing a student, whether by way of a practical joke or otherwise, to do any act which detracts from human dignity or violates his person or exposes him to ridicule or to forbear from doing any lawful act, by intimidating, wrongfully restraining, wrongfully confining, or injuring him or by using criminal force on him or by holding out to him any threat of such intimidation, wrongful restrain, wrongful confinement, injury or the use of criminal force. Mr. Das, learned counsel further submitted that in the instant case, the complainant Soubhagya being a 2nd year B. Arch. student is not a ‘fresher’. The enquiry report, conducted by the College authority, the police and the Sub-Collector do not at all disclose any such case so as to satisfy any of the ingredients for constituting a case of ragging. Therefore, the University cannot justify the incident as a case of ragging by a so-called committee report of their own as the Constitution of the said 3 committee is without any authority of law and not in accordance with the regulation and the guidelines provided by the Hon’ble Supreme court. 9 Miss. Pabitra Sahoo-petitioner in W.P.(C) No.17180 of 2010 is not connected with the alleged incident that took place on 07.08.2010. 10. Mr. Bijan Ray, learned senior counsel appearing for the opposite party no.3- College also supported the case of the petitioners, inter alia, submitting that a thorough inquiry was conducted by the college authorities upon which they came to the conclusion that it is not a case of ragging and, accordingly, reply was given to the University. He also submitted that the action of the University in debarring the petitioners from continuing their studies in the institution and from appearing in the examinations for two years is without authority of law. 11. Mr. Palit, learned counsel appearing for the B.P.U.T. while reiterating the assertions made in the counter affidavit submitted that as per the U.G.C. Regulation, 2009, ragging constitutes one or more, of any of the acts mentioned in the Regulation-3. He further urged that the University authorities conducted the enquiry fairly giving full opportunity to the students and upon considering the same passed the impugned directions under Anneuxre-6 series. 12. On the issue of ragging, the Hon’ble Supreme Court had the occasion to deal with the same in the case of University of Kerala (supra) and previous to that in the case of Vishwa Jagriti Mission Through President V. Central Government Through Cabinet Secretary and Ors, A.I.R. 2001 SC 2793. According to Mr. Palit, the case at hand is a clear case of ragging and the University had the authority to pass the directions given in Anneuxre-6 series. In the case of University of Kerala (supra), on 16.05.2007 the Hon’ble Supreme Court passed an interim order considering the report of the committee constituted pursuant to a previous order to suggest remedial measures to prevent ragging in educational institutions. In the said interim order, discussing the suggestions given by the committee, the Supreme Court, during pendency of the said case felt that some of the recommendations given by the committee should be implemented without any further lapse of time, which are follows:- “1. The punishment to be meted out has to be exemplary and justifiably harsh to act as a deterrent against recurrence of such incidents. 2. Every single incident of ragging where the victim or his parent/guardian or the Head of institution is not satisfied with the institutional arrangement for action, a First Information Report must be filed without exception by the institutional authorities with the local police authorities. Any failure on the part of the institutional authority or negligence or deliberate delay in lodging the FIR with the local police shall be construed to be an act of culpable negligence on the part of the institutional authority. If any victim or his parent/guardian of ragging intends to file FIR directly with the police, that will not absolve the institutional authority from the requirement of filing the FIR. 3. Courts should make an effort to ensure that cases involving ragging are taken up on a priority basis to send the correct message that ragging is not only to be discourages but also to be dealt with sternness. 4 4. In addition, we direct that the possibility of introducing in the educational curriculum a subject relating to ragging shall be explored by the National Council of Educational Research and Training (NCERT) and the respective State Council of Educational Research and Training (SCERT). This aspect can be included in the teaching of the subjects “Human Rights”. 5. In the prospectus to be issued for admission by educational institutions, it shall be clearly stipulated that in case the applicant for admission is found to have indulged in ragging in the past or if it is noticed later that he has indulged in ragging, admission may be refused or he shall be expelled from the educational institution. 6. The Central Government and the State Governments shall launch a programme giving wide publicity to the menace of ragging and the consequences which follow in case any student is detected to have been involved in ragging. 7. It shall be the collective responsibility of the authorities and functionaries of the concerned institution and their role shall also be open to scrutiny for the purpose of finding out whether they have taken effective steps for preventing ragging and in case of their failure, action can be taken; for example, denial of any grant-in-aid or assistance from the State Governments. 8. Anti-ragging committees and squads shall be forthwith formed by the institutions and it shall be the job of the committee or the squad, as the case may be, to see that the Committee’s recommendations, more particularly those noted above, are observed without exception and if it is noticed that there is any deviation, the same shall be forthwith brought to the notice of this Court. 9. The Committee constituted pursuant to the order of this Court shall continue to monitor the functioning of the anti-ragging committees and the squads to be formed. They shall also monitor the implementation of the recommendations to which reference has been made above.” 13. As to what ‘ragging’ means, the Supreme court in Paragraph-10 of the said judgment in the case of University of Kerala (supra) observed that ragging is a set of undisciplined activities undertaken by the seniors to break the ice with the juniors, who have been suddenly thrown into a totally new environment. The contention of seniors behind all such activities is simply to bring the freshers down to earth because in their opinion the freshers do not respect the seniors and by doing all such inhuman activities under the garb of “Introduction” the seniors rag the freshers so that the freshers may respect them and be under their control. The Supreme Court described such act of the seniors as “fist of steel against ice” and observed that likewise by doing so they shatter the ambition, aim and object of freshers and they become aloof in this practical world. It took note of the case of Vishwa Jagriti Mission (supra), wherein series of guidelines were given to educational institutions whether being Central, State or private institutes. It described ‘ragging’ to be in essence a human rights’ abuse. Ragging can be in various forms, such as, physical abuse or mental harassment. Deprecating and defining ragging in so many words, and referring to various incidents in our country as well as abroad, the Supreme Court ultimately held in paragraph – 27 thereof as follows and directed the matter to be listed again before it. 5 “A question raised was regarding giving opportunity to the offender before taking actions like expulsion etc. Delay in taking action in many cases would frustrate the need for taking urgent action. In such cases if the authorities are prima facie satisfied about the errant act of any student, they can in appropriate cases pending final decision, suspend the student from the institution and the hostel if any and give opportunity to him to have his say. Immediately, the police shall be informed and criminal law set into motion. If it comes to the notice of the university or controlling body that any educational institution is trying to shield the errant students, they shall be free to reduce the grants in aid and in serious cases deny grants in aids.” 14. Pursuant to the interim orders passed by the Hon’ble Supreme Court on 16.05.2007 in the above case, the U.G.C. framed regulations of curbing the mense of ragging in higher educational institutions. Regulation No.3 prescribes as to what constitutes ragging which reads as follows:- “3. What constitutes Ragging- Ragging constitutes one or more of any of the following acts: a. any conduct by any student or students whether by words spoken or written or by an act which has the effect of teasing, treating or handling with rudeness a fresher or any other student; b. indulging in rowdy or indisciplined activates by any student or students which causes or is likely to cause annoyance, hardship, physical or psychological harm or to raise fear or apprehension thereof in any fresher or any other student; c. asking any student to do any act which such student will not in the ordinary course do and which has the effect of causing or generating a sense of shame, or torment or embarrassment so as to adversely affect the physique or psyche of such fresher or any other student; d. any act by a senior student that prevents, disrupts or disturbs the regular academic activity of any other student or a fresher; e. exploiting the services of a fresher or any other student for completing the academic tasks assigned to an individual or a group of students, f. any act of financial extortion or forceful expenditure burden put on a fresher or any other student by students; g. any act of physical abuse including all variants of it: sexual abuse, homosexual assaults, stripping, forcing obscene and lewd acts, gestures, causing bodily harm or any other danger to health or person; h. any act or abuse by spoken words, emails, post, public insults which would also include deriving perverted pleasure, vicarious or sadistic thrill i. from actively or passively participating in the discomfiture to fresher or any other student; 6 j. any act that affects the mental health and self-confidence of a fresher or any other student with or without an intent to derive a sadistic pleasure or showing off power, authority or superiority by a student over any fresher or any other student.” 15. Reading the entire regulations, this Court finds that Regulations - 5 and 6 provide measures for prohibition of ragging and prevention of ragging at the institution level. Regulation-7 deals with the action to be taken by the head of the institutions. Administrative actions to be taken have been envisaged in Regulation-9 of the said Regulation. The role of the University to which a College is affiliated where ragging takes place is given in Regulation-6.3(g) and in Regulation - 9(c) as well as Regulation - 9.2 which are as follows: “6.3. Every institution shall constitute the following bodies, namely, (a) to (f) xx xx xx (g) Every University shall constitute a body to be known as Monitoring Cell on Ragging, which shall coordinate with the affiliated colleges and institutions under the domain of the University to achieve the objectives of these Regulations; and the Monitoring Cell shall call for reports from the Heads of institutions in regard to the activities of the Anti-Ragging Committees, Anti-Ragging Squads, and the Monitoring Cells at the institutions, and it shall also keep itself abreast of the decisions of the District level Anti-Ragging Committee headed by the District Magistrate. 9.(c) An appeal against the order of punishment by the Anti-Ragging Committee shall lie, i. in case of an order of an institution, affiliated to or constituent part, of a University, to the Vice-Chancellor of the University ; ii. in case of an order of a University, to its Chancellor. iii. in case of an institution of national importance created by an Act of Parliament, to the Chairman or Chancellor of the institution, as the case may be. 9.2. Where an institution, being constituent of, affiliated to or recognized by a University, fails to comply with any of the provisions of these Regulations or fails to curb ragging effectively, such University may take any one or more of the following actions, namely ; (i) Withdrawal of affiliation/recognition or other privileges conferred. (ii) Prohibiting such institution from presenting any student or students then undergoing any programme of study therein for the award of any degree/diploma of the University. Provided that where an institution is prohibited from presenting its student or students, the Commission shall make suitable arrangements for the other students so as to ensure that such students are able to pursue their academic studies. (i) Withholding grants allocated to it by the University, if any 7 (iv) Withholding any grants channelized through the university to the institution. (v) Any other appropriate penalty within the powers of the university.” 16. From the said Regulation by which the B.P.U.T. is governed, it is clearly manifest that the University is to constitute a body known as “Monitoring Cell” on ragging which shall coordinate with the affiliated Colleges and institutions to achieve all the objectives of the regulation, it shall call for reports from the heads of the institutions in regard to the activities of the Anti-Ragging committees, Anti-Ragging squad and the Monitoring Cells at the institutions and it shall also keep itself abreast of the decisions of the District Level Anti-Ragging Committee headed by the District Magistrate. Under regulation 9.1 (c) as quoted above, an appeal shall lie against the order of the Anti-Ragging committee to the Vice-Chancellor of the University. 17. The student mass are at youth, but lack the experience of an adult, always anxious to express valour. Result, therefore, amongst such young mass reading in the college is inconsequential ego clashes. Very often, it is found that students for flimsy reasons combine together in groups and over-trifle matters such groups clash amongst themselves resulting, may be, in some instances to injuries on person of such students. It may also lead to commission of criminal offences under the Penal Code. However, such clashes cannot be termed as a ‘ragging’. A holistic reading of the observations of the apex Court in the case of University of Kerala (supra) would lead to the irresistible conclusion that ragging is a form of torturing ‘freshers’ who enter into the college and have not adjusted to the new environment. Keeping the above in view, this Court on going through the inquiry reports conducted at the institution level as well as the investigation conducted by the police and the report of the committee constituted by the University, finds that the incident, in question, in the light of the observations made by the Hon’ble Supreme Court does not constitute a case of ‘ragging’ but a case of scuffle between some students of the institution. This Court also finds that under the Regulation, the University has no jurisdiction to pass the order as has been done under Annuexre-6 series. However, considering the anguish expressed by the Hon’ble