LPA 535/2008 Page 1 of 24 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on :13th September, 2010 % Judgment Pronounced on : 7th October, 2010 + LPA No.535/2008 University of Delhi and others …. Appellants Through: Mr.M.J.S. Rupal, Advocate versus Harpal Singh Sangwan ….Respondent Through: Mr.K. Venkatraman, Advocate CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ In this intra-Court appeal, the appellant-University (hereafter referred to as „the appellant‟) has called in question the legal acceptability of the order dated 15th July, 2008 passed by the learned Single Judge in WP(C) No.6512/2007. 2. The facts which have been uncurtained are that the respondent-writ petitioner (hereinafter referred to as „the respondent‟) was a student of M.A. (Russian) in the Department of Slavonic and Finno Ugrain Studies in the appellant University in 2005-07. He appeared in the final year examination in the said course and at that stage he also appeared in the entrance examination for the Post Graduate course in “Hindi Journalism” for the academic session 2007-08. His result of the MA (Russian) final year examination was declared on 2nd August, 2007. As set forth, the result of the entrance examination for Post Graduate course LPA 535/2008 Page 2 of 24 in Hindi Journalism was published in the first week of August, 2007 and the name of the respondent was initially displayed in the list of successful candidates but the same was substituted by another list which did not reflect his name. At this stage, the respondent received a communication dated 30th July, 2007 whereby the University, in exercise of powers vested under Ordinance XV-B, directed that the respondent be not admitted in any course in the University of Delhi for a period of next five years. Because of the said notification, he was denied the admission to Post Graduate Course in Hindi Journalism. Being dissatisfied with the said communication and action of the University, the respondent invoked the jurisdiction of this Court under Article 226 of the Constitution of India for issue of a writ of certiorari for quashment of the said notification dated 30th July, 2007 issued by the University and further to command the University to extend the benefit of admission in any course and further to consider his candidature for the Post Graduate Course in Hindi Journalism. 3. During the pendency of the writ petition, the University issued a notification on 26th November, 2007 stating that the competent authority had decided to grant post-decisional hearing to the respondent and accordingly constituted a committee consisting of Prof. V.K. Bhasin, Department of Zoology, as the Chairperson and Dr.M. Rahman, Acting Proctor as the Member to look into the complaints against the respondent. The committee was required to submit a report to the Vice- Chancellor within ten days from the date of issue of the notification. The Chairperson of the enquiry committee issued a notice dated 26/28-11-2007 giving an opportunity to the respondent to appear before the committee for hearing on 3rd December, 2007 with regard to his grievance relating to the imposition of LPA 535/2008 Page 3 of 24 punishment under Ordinance XV-B along with the relevant records. He was also afforded an opportunity to present his case before the committee by filing a written statement. The respondent, in pursuance of the said notice, appeared before the committee and the committee put to the respondent four complaints which had formed the basis of the action taken against him. Thereafter, the committee, as asked for by the respondent, supplied the documents and the respondent filed his reply. After the enquiry was over, the Vice-Chancellor, on the basis of the enquiry report, arrived at the conclusion that the response of the respondent was unsatisfactory and unacceptable and there was no justification to alter the decision. The said order was passed by the Vice-Chancellor on 8/9-5-2008. The said order passed by the Vice-Chancellor along with the representation of the respondent were made available before the learned Single Judge by filing affidavit. 4. It was contended before the learned Single Judge that the earlier notification / communication dated 30th July, 2007 is patently illegal as the principles of natural justice were not followed and further the order was an unreasoned one; that taking recourse to post-decisional hearing was not an adequate substitute; that the whole exercise of post-decisional hearing was an eye wash and was also to cover up the laches in the initial order; that the University has failed to establish any of the allegations levelled against the writ petitioner for taking action under Ordinance XV-B which deals with maintenance of discipline among the students of the University; that the enquiry made by the enquiry committee in the course of post- decisional hearing was totally in violation of the norms inasmuch as the respondent was not informed about the charges levelled against him; and that the order passed LPA 535/2008 Page 4 of 24 by the Vice-Chancellor placing reliance on the enquiry report was absolutely vulnerable. 5. The learned Single Judge first dwelled upon the issue whether a post- decisional hearing could be an adequate substitute to save the impugned action of the appellants from the vice of arbitrariness. He referred to the decision in Swadeshi Cotton Mills v. UOI (1981) 1 SCC 664, K.I. Shephard & Ors. v. UOI & Ors. (1988) 1 SCR 188 : AIR 1988 SC 686, H.L. Trehan and others v. Bharat Petroleum Corporation Ltd. (1989) 1 SCC 764 and Shekhar Ghosh v. U.O.I. & ors. (2007) 1 SCC 331. After placing reliance on the said authorities, the learned Single Judge came to hold that post-decisional hearing cannot be a substitute for a pre-decisional hearing; that where a pre-decisional hearing is not excluded by the statute only in cases of exceptional urgency, where it is not possible to give a pre- decisional hearing on account of the emergent situation the pre-decisional hearing may be dispensed with provided a full review or appeal on merits against the decision is available. The learned Single Judge has further held that the principle that minimum compliance of the rules of natural justice should be observed as far as possible. 6. After so holding, the learned Single Judge referred to two complaints made against the writ petitioner in the year 2005 and the other two which were made in the year 2007. He took note of Ordinance XV-B to arrive at the conclusion that the same does not exclude the compliance of the principles of natural justice and further it does not lay down any condition with regard to the time period within which action could have been taken by the Vice-Chancellor against the writ petitioner and, hence, there was no urgency to issue the impugned notification. LPA 535/2008 Page 5 of 24 The learned Single Judge further held that in exercise of power under Ordinance XV-B, the Vice-Chancellor, at any time of the academic session, can pass an order and there was no necessity that it should be passed before the student takes admission in any other course in the University. It was further opined by the learned Single Judge that the impugned notification was issued to block the move of the respondent to take the admission in the Post Graduate Certificate Course in Hindi Journalism for the academic session 2007-08 and, therefore, post-decisional hearing stated to have been granted to him was not a legally sustainable substitute. It is worth noting that the plea of the University that the post-decisional hearing sub-served the cause of justice was not accepted. The decisions in Narender Singh v. University of Delhi 70(1997) DLT 509, Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., (Haldia) and others (2005) 7 SCC 764, Satyavir Singh v. Union of India (1985) 4 SCC 252 and M.C. Mehta v. Union of India (1997) 6 SCC 237 were distinguished on facts. 7. After dealing with the aforesaid facet, the learned Single Judge adverted to the complaint made and came to hold that the complainants who had made the complaints against him were not called upon to give their statements before the enquiry committee. The security staff, who were allegedly prevented by the respondent from performing their duties or threatened by him, were not called. The complaint made by Mr.Ravinder Kumar, P.S. in the office of the Director, South Delhi Campus, on 17th April, 2007 was not addressed to by the committee and hence, could not have been treated to have been proved. Thereafter, the learned Single Judge addressed himself with regard to the complaint made against the respondent by Prof.S.K.Vij on 1st May, 2007 who had alleged that on 20th LPA 535/2008 Page 6 of 24 April, 2007 when a meeting of the Departmental Council was being held, the respondent barged into the meeting to make certain demands /claims and he was requested to wait for some time as the meeting was in progress. Later, he was invited to make his representation. At that stage, he behaved in a manner unbecoming of a student. As found by the learned Single Judge, the enquiry committee in its report records that during the course of the enquiry, the respondent / writ petitioner had admitted that he entered into the room of Dr.S.K. Vij, Head of the Department, without his permission when the Head of the Department was presiding over a meeting of the committee and from the same, the enquiry committee concluded that the respondent failed to maintain proper discipline as he had forcibly entered into the room of the HOD when a statutory meeting was going on and misbehaved with the HOD. The learned Single Judge repelled the stand of the University that the complaints made against the respondent were proved. The entire enquiry was an eye-wash and if such a course of action is allowed, the University would victimize any student or ex-student by collecting such complaints and proceeding against him to debar him from studying in the University. Thereafter, as is perceptible, the learned Single Judge dealt with the order dated 8/9-5-2008 and came to hold that the Vice-Chancellor did not apply his mind to the enquiry report but accepted the same mechanically. He has not indicated on what basis and on what material he had come to arrive at the conclusion that the allegations were proved. It is worth noting that the writ petitioner had also made the Vice-Chancellor a party – respondent No.2 in his personal capacity and pleaded that he had taken certain issues which annoyed the Vice-Chancellor. As the Vice-Chancellor had not chosen to file affidavit, the LPA 535/2008 Page 7 of 24 learned Single Judge thought it appropriate not to dwell upon the same and kept it open allowing liberty to the writ petitioner to raise the same at any subsequent stage. 8. After deliberating on the aforesaid issue, the learned Single Judge opined that the impugned notification / communication dated 30th July, 2007 and all proceedings subsequent thereto including the order dated 8/9-5-2008 whereby the Vice-Chancellor had decided not to recall or review the aforesaid notification / communication deserved to be quashed and, accordingly, quashed the same. After quashing the same, he directed the appellant-University to consider the entrance test result of the respondent for the examination 2007-08 for the current academic year (as he had already qualified in the said entrance test) and to hold an interview for admission to Hindi Journalism P.G. Certificate Course for the academic year 2008-09. Eventually, the writ petition was allowed with imposition of costs of Rs.30,000/-. 9. We have heard Mr. Rupal, learned counsel for the appellants, and Mr. K. Venkataraman, learned counsel for the respondent. 10. Questioning the correctness of the order passed by the learned Single Judge, it is contended by Mr. Rupal that the learned Single Judge has fallen into error by coming to hold that the doctrine of post- decisional hearing could not have been invoked in the case at hand. It is urged by him that the view expressed by the learned Single Judge that pre-decisional hearing was imperative in the case at hand inasmuch as post-decisional hearing only results in giving the stamp of approval to the decision taken earlier and does not serve any fruitful purpose is incorrect. It is contended by him that the learned Single Judge has fallaciously opined that the LPA 535/2008 Page 8 of 24 power had been conferred on the Vice-Chancellor to take action at any point of time and, hence, there was no hurry to issue the impugned notification without appreciating the factual matrix in the proper perspective. It is canvassed by Mr. Rupal that the learned Single Judge has completely misguided himself by expressing the view that the enquiry was a mere eye wash and nothing had been proven against the respondent despite ample material brought on record. 11. Mr. K. Venkatraman, learned counsel appearing for the respondent, submitted that the conclusion arrived at by the learned Single Judge that in the case at hand post-decisional hearing did not sub-serve the cause of justice cannot be flawed inasmuch as the University authorities were bent upon to stick to their decision rendered earlier. That apart, submits the learned counsel for the respondent, there was no warrant or justification not to take recourse to the principles of natural justice as some delay would not have brought in a situation beyond control but on the contrary would have ensued in an appropriate decision in law. The learned counsel submitted that the analysis of the evidence and the materials brought on record by the learned Single Judge is absolutely faultless and does not warrant any interference in the intra court appeal which is basically an appeal of rectification. 12. It is not in dispute that the notification dated 30.7.2007 was issued without affording an opportunity of hearing. It is also not in dispute that the University issued a notification on 26.11.2007 which reflects the decision of the competent authority of the University that it had decided to grant post-decisional hearing to the petitioner and had accordingly constituted a committee. The learned Single Judge has referred to the complaints made against the respondent and thereafter LPA 535/2008 Page 9 of 24 proceeded to deal with the submission whether in the case of the present nature the post-decisional hearing can be an adequate substitute. He has referred to Clauses 3(a) and 4 of Ordinance XV-B and relied on the decisions which we have referred to hereinbefore. Before we advert to the nature of the complaint made against the respondent, the power conferred on the Vice-Chancellor and the obtaining scenario, we think it apposite to refer to certain citations relating to the basic concept inhered in post-decisional hearing. 13. In K.I. Shephard (supra), the Apex Court was considering the exclusion of employees of certain banks under the amalgamation scheme framed under Section 45 of Banking Regulation Act (10 of 1949) without affording an opportunity of hearing. The question that arose in the said case was whether non-compliance of the principles of natural justice vitiated the decision and whether post-decisional hearing would sub-serve the cause of justice. Their Lordships, after referring to the authorities in Perre Brothers v. Citrus Organisation Committee, (1975) 10 SASR 555, Re K (H) (an infant), (1967) 1 All ER 226, State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269, A.K. Kraipak v. Union of India, AIR 1970 SC 150 and Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, AIR 1970 SC 2042, came to hold as follows: “13. Natural justice has various facets and acting fairly is one of them. RBI which monitored the three amalgamations was required to act fairly in the facts of the case. The situation necessitated a participatory enquiry in regard to the excluded employees. Since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the correctness whereof they deny, if an opportunity to know the allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their livelihood and brings adverse civil LPA 535/2008 Page 10 of 24 consequences and could obviously not be taken on the ipse dixit of RBI officers without verification of facts. It is quite possible that a manoeuvering officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirement of natural justice was bad.” After so holding, their Lordships repelled the submission as regards the time period during which the operation was required to be conducted. In this regard, the Apex Court opined thus: “15. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment.” After so stating, their Lordships proceeded to hold thus: LPA 535/2008 Page 11 of 24 “16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post- amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post- decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.” We have referred to the aforesaid decision in extenso as the learned Single Judge has placed heavy reliance on the same. The various factors that weighed with the Apex Court are to be taken note of. They are deprivation of livelihood of employees, possibility of a manoeuvring officer of the banking company adversely disposed of towards a particular employee to exclude an employee, some mistake as regards the identity of an employee, the non-exclusion of the principles of natural justice by the time frame postulated under the scheme and the lack of justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity as a condition precedent before action is taken. At a later stage, when we analyze the factual matrix of the case at hand, we would address ourselves whether the said decision would be applicable or not. 14. In Swadeshi Cotton Mills (supra), the issue that emerged for consideration was whether prior hearing was necessary to be given to the persons affected before LPA 535/2008 Page 12 of 24 an order under Section 18-AA of Industries (Development and Regulation) Act, 1951 was passed. The majority, after scanning the anatomy of Section 18-AA while analyzing the said question, held as follows: “42. “The necessity for speed”, writes Paul Jackson : “may justify immediate action, it will, however, normally allow for a hearing at a later stage.” The possibility of such a hearing - and the adequacy of any later remedy should the initial action prove to have been unjustified- are considerations to be borne in mind when deciding whether the need for urgent action excludes a right to rely on natural justice. Moreover, however, the need to act swiftly may modify or limit what natural justice requires, it must not be thought “that because rough, swift or imperfect justice only is available that there ought to be no justice”: Pratt v. Wanganui Education Board. 43. Prof. de Smith, the renowned author of JUDICIAL REVIEW (3rd Edn.) has at page 170, expressed his views on this aspect of the subject, thus: “Can the absence of a hearing before a decision is made be adequately compensated for by a hearing ex post facto? A prior hearing may be better than a subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the courts have held that statutory provision for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original decision is made. The approach may be acceptable where the original decision does not cause serious detriment to the person affected, or where there is also a paramount need for prompt action, or where it is impracticable to afford antecedent hearings.” 44. In short, the general principle - as distinguished from an absolute rule of uniform application - seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre- decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre- decisional hearing to the person affected and the LPA 535/2008 Page 13 of 24 administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative progress or frustrate the need for utmost promptitude. In short, this rule of fairplay "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands". The court must make every effort to salvage this cardinal rule to the maximum