Wpc 6512.07 Page 1 of 42 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6512/2007 % Date of Decision: 15.07.2008 HARPAL SINGH SANGWAN ..... Petitioner Through: Ms. Aarti Mahajan, Advocate versus UNIVERSITY OF DELHI & ORS. .....Respondents Through: Arvind Nigam with Mr. Amit Bansal, Advocates. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? VIPIN SANGHI, J. (Oral) 1. The petitioner was student of M.A.(Russian) in the department of Slavonic and Finno Ugrain Studies, University of Delhi during the years 2005-07. He appeared in the final year examination, and while awaiting the result for the said examination, the petitioner in pursuit of his quest for further knowledge appeared in the entrance examination on 8.7.2007 for Wpc 6512.07 Page 2 of 42 the Post Graduate course in “Hindi Journalism” for the session 2007-2008. His result of the M.A. (Russian) final year examination was declared on 2.8.2007. In the first week of August 2007, the petitioner learnt that the list of candidates who had cleared the entrance examination for the post graduate course in “Hindi Journalism” was out. The petitioner further learnt that his name had been initially displayed in the list of successful candidates, but the same was substituted with another list which did not include his name. On 6.8.2007, the petitioner states that he received the impugned notification dated 30.7.2007 issued by the respondent university which reads as follows:- “The University Administration has received complaints and reports indicating acts of gross indiscipline committed by Shri Harpal Singh Sangwan, a student of M.A. in Russian Studies, University of Delhi, South Campus. Such acts of indiscipline include physical assault, threat to use physical force against the members of teaching community and students of the Department. It has also come to the light of the authorities that Shri Harpal Singh Sangwan is in a habit of misbehaving with and abusing teachers, students and non-teaching staff of the University. These acts and examples constitute gross indiscipline within the meaning of Clause 3, particularly sub clause (a) and (i) of Ordinance XV-B of the University. After carefully examining the matter in detail, the Vice Chancellor, under the powers vested under Ordinance XV-B, has, in order to maintain discipline, directed that Shri Sangwan be not admitted in any course in the University of Delhi for a period of next 5 years.” Wpc 6512.07 Page 3 of 42 2. The impugned notification came as a blot from the blue and purported to deny him his right to pursue further study in the University for a period of five years. On account of the aforesaid notification, it appears that the petitioner was sought to be denied admission to the aforesaid post graduate course in “Hindi Journalism”. 3. Accordingly, the petitioner filed the present petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash and set aside the impugned notification dated 30.7.2007 issued by respondent no.3; a direction to restraint the respondents from acting in pursuance of the aforesaid notification; a direction to the respondents to permit the petitioner to take admission to any course in the University of Delhi and to consider his candidature for the said post graduate course in “Hindi Journalism” for which he had cleared the written examination. He also sought a restraint against the respondent University from finalizing the process of filling up all the seats for the year 2007-2008 batch in the said post graduate course in “Hindi Journalism” without considering the candidature of the petitioner. 4. This Court issued notice to the respondents on 5.9.2007 which was accepted by learned counsel for the Wpc 6512.07 Page 4 of 42 respondent in Court. On 14.9.2007, this Court passed an interim direction to keep one seat reserved in P.G. Certificate Course in “Hindi Journalism” in South Campus, subject to final outcome of the writ petition. The respondents did not file their response/counter affidavit and consequently vide order dated 12.12.2007, the Court granted one final opportunity to the respondents to file the counter affidavit within two weeks while imposing costs of Rs.30,000/- upon the respondent. Thereafter the respondents have filed their counter affidavit. 5. During the pendency of the petition, the respondent University issued a notification on 26.11.2007 stating that the competent authority had decided to grant post decisional hearing to the petitioner and had accordingly constituted a committee consisting of Professor V.K.Bhasin, Department of Zoology as the Chairperson and Dr. M. Rahman, Acting Proctor as the Member “to look into the complaints against Shri Harpal Singh Sangwan”. This notification further states: “Now therefore, the Committee mentioned above will afford a post decision hearing to Shri Sangwan with regard to his grievance relating to imposition of punishment under Ord. XV-B after giving a proper notice for the said hearing”. The Committee was expected to give its report to the Vice Chancellor within ten days from the date of issue of the Wpc 6512.07 Page 5 of 42 notification. The Chairperson of the enquiry committee, Professor V.K.Bhasin issued a notice dated 26/28.11.2007 giving the petitioner an opportunity to appear before the committee for a hearing on 3.12.2007 with regard to his grievance relating to imposition of punishment under Ordinance XV-B along with the relevant records, if any, in support of his case. He was also given an option to present his case before the Committee through a written statement. On 3.12.2007, the petitioner appeared before the said Committee. The Committee put to the petitioner the four complaints which formed the basis of the action against him. The four complaints were as follows: “i) Complaint of misbehaviour dated 10.11.2005 from one Mr. Neeraj Dubey (Roll No.135) of Certificate course in Russian Language, addressed to the Security Incharge, University of Delhi South Campus wherein the complainant was abused and beaten up by two ex-students. ii) Complaint dated 2.12.2005 from Dr. A. Venkat Raman, Deputy Proctor, University of Delhi South Campus addressed to Prof. A. Maurya, Head, Department of Slavic Studies, UDSC wherein it was reported that on 2.12.2005, the said Shri Harpal Singh Sangwan abused and misbehaved with the security staff and the Deputy Proctor when they were handling with one Mr. Sandeep Singh, Roll No.SCRC-215, an Ex Student of Certificate Course in Russian. Mr. Sandeep Singh was one of the two students against whom a complaint was registered by Mr. Neeraj Dubey. iii) Complaint dated 17.4.2007 from Shri Ravindra Kumar, Private Secretary to the Director, UDSC addressed to the Director, UDSC about the Wpc 6512.07 Page 6 of 42 misbehaviour by the said Shri Harpal Singh Sangwan. iv) Complaint dated 1.5.2007 from Prof. S.K.Vij, Head, Department of Slavanic & Finno Ugrian Studies, UDSC, addressed to the Director, UDSC about the act of misbehaviour by the said Shri Harpal Singh Sangawan wherein he shouted at the complainant and insulted before other faculty members in the HoD’s office. 6. The petitioner sought copies of the complaints so that he could file reply to them. The hearing was thereafter fixed on 10.12.2007. The petitioner replied to the aforesaid notice which was delivered on 3.12.2007. He submitted another reply on 10.12.2007, to the specific complaints against him. Thereafter it appears that the enquiry committee prepared its report on 26.12.2007 which was given to the petitioner for his comments on or about 4.1.2008. The petitioner gave his response dated 31.1.2008 to the enquiry report. Thereafter the respondent University passed a further order dated 8/9.5.2008 stating that the Vice Chancellor has, after considering all the facts and circumstances of the case and the report of the enquiry committee, and after having examined the matter in depth come to the conclusion that the response of the petitioner is unsatisfactory and unacceptable and that there are no grounds for review of its decision dated 27.7.2007 which culminated in the impugned order dated 30.5.2007 and hence the decision dated Wpc 6512.07 Page 7 of 42 27.7.2007 was upheld. The order dated 8/9.5.2008, inter alia, states that the Vice Chancellor has gone through the details of the case, findings of the Committee and the subsequent response of Mr. Sangwan, the petitioner and has taken into account: “(a) that the subsequent memorandum was issued to him to afford him one more opportunity to present his side for defence, but his response thereto was vague, and unsatisfactory which did not explain the charges against him and hence it was unacceptable; (b) that in his response, Mr. Sangwan did not offer any evidence or material to disprove the allegations that the Committee had concluded as proven; (c) that in his response Mr. Sangwan did not bring out any material irregularity or omission in the inquiry proceedings; (d) that Mr. Sangwan’s assertions in denying the changes were in the nature of statements without any evidence or proof which was grossly unacceptable since the charges against him had been proved; (e) that in his response, Mr. Sangwan has not indicated any such ground that the Inquiry Committee ought to have taken into account but failed to take into Wpc 6512.07 Page 8 of 42 account, that could have had significant impact on the enquiry proceedings or its findings; and (f) that the material facts and ground realities of this case have remained unaltered;” 7. The petitioner’s representation dated 31.01.2008 and the order dated 8/9th May, 2008 have been produced at the time of hearing and the petitioner has been required to place them on record. The same have, accordingly, been placed on record by petitioner vide Additional Affidavit dated 15.07.2008. 8. The first submission of learned counsel for the petitioner is that the impugned notification dated 30.7.2007 is patently illegal and arbitrary, inasmuch as, it is evidently in violation of the Principles of Natural Justice. The said order had been passed without any notice, much less an opportunity to the petitioner to show cause against such a drastic action as to debar him from studying in the University for a period of five years. The order is non-speaking. It ought to have been preceded with a show cause notice and a hearing since it vitally affected the petitioner’s rights of pursuing further studies in the respondent University. It is further submitted by the learned counsel for the petitioner that in a case like the present a post decisional hearing cannot be an adequate substitute. The impugned notification Wpc 6512.07 Page 9 of 42 cannot be saved by resort to the cover up exercise resorted to by the respondents of pretending to give a post decisional hearing to the petitioner. In this regard reliance is being placed by the petitioner on the decision of the Supreme Court in K.I. Shephard & Ors V. UOI & Ors., (1988) 1 SCR 188 and Shekhar Ghosh V. U.O.I & Others (2007) 1 SCC 331. 9. Learned counsel for the petitioner further submits that even the so called post decisional hearing granted to the petitioner was an eye wash and was also in violation of the Principles of Natural Justice. The respondents have completely failed to establish any of the allegations made against the petitioner for taking action under Ordinance XV-B. Ordinance XV- B which deals with maintenance of discipline among students of the University states that “All powers relating to discipline and disciplinary action are vested in the Vice Chancellor”. Clause 3(a) of Ordinance XV-B states: “Without prejudice to the generality of power to enforce discipline under the Ordinance, the following shall amount to acts 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 University of Delhi;” Wpc 6512.07 Page 10 of 42 10. Clause 4 prescribes the action that could be taken to maintain discipline by the Vice Chancellor. The relevant extract of clause 4 reads as follows:- “4. Without prejudice to the generality to his/her powers relating to the maintenance of discipline and taking such action in the interest of maintaining discipline as may seem to him/her appropriate, the Vice-Chancellor may, in the exercise of his/her powers aforesaid order or direct: - (a that any student or students be expelled; or (b)…….. (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)…………. (e)…………. (f)………….” 11. Learned counsel for the petitioner submits that a perusal of the notice issued by the enquiry committee would show that even at that stage the petitioner was not informed as to what were the charges against him, much less the material on which the charges were based. No documents were supplied to the petitioner which formed the basis of the charges. There was nothing to which the petitioner could have responded at that point of time. On 3.12.007, he was confronted with four complaints alleged to have been made against him. He was Wpc 6512.07 Page 11 of 42 provided the copies of these complaints, only upon his request. Out of these four complaints, one was of 10.11.2005 and another of 2.12.2005 i.e over 18 months prior to the passing of the impugned order dated 30.7.2007, while the other two were of 17.5.2007 and 1.5.2007. 12. Learned counsel for the petitioner then took me through the four complaints which formed the basis of the impugned action. Before I proceed to examine the issue of legality of the procedure adopted by the enquiry committee, I proceed to consider the issue as to whether, in a case like the present, a post decisional hearing could be an adequate substitute to save the impugned action of the respondents from the vice of arbitrariness. 13. In Swadeshi cotton Mills Vs. UOI, (1981) 1 SCC 664, the appellant challenged the order passed by the Government of India in exercise of its power under Section 18- AA(1)(a) of the Industries (Development and Regulation) Act, 1951 for taking over the management of the company by the National Textile Corporation on the ground of non-compliance of the principle of audi alteram partem. The Full Bench of this Court took the view that Section 18-AA(1)(a),(b) excludes that the requirement of giving prior hearing to the party affected by an Wpc 6512.07 Page 12 of 42 order thereunder and that Section 18(F) expressly provides for a post decisional hearing to the owner of the industrial undertaking, the management whereof is taken over under Section 18-AA. It was also held by the Full Bench of this Court that the taking over of management under Section 18-AA is not vitiated by failure to grant a prior hearing. The Supreme Court reversed the decision of the Full Bench of this Court by a majority decision on the aforesaid aspects. The ratio of the majority view, as found in the head note of the decision reads as follows:- “Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice viz: (i) audi alteram partem and (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. 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 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 Wpc 6512.07 Page 13 of 42 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 process 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 extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.” 14. In paragraph 67 and 68 of the judgment, the Supreme Court interpreted the expression “that immediate action is necessary” used in Section 18AA and concluded that it could not be said that the use of such an expression excludes absolutely, by inevitable implication, the application of the cardinal canon of fair play in all cases where Section 18-AA(1)(a) may be invoked. The Supreme Court held that the use of the expression “immediate action” could at best be construed as “without prior investigation”. Dispensing with the requirement of such prior investigation does not necessarily indicate an intention to exclude the application of the principles of natural justice or the duty to act fairly by affording to the owner of the undertaking likely to be affected at the pre-decisional stage, wherever Wpc 6512.07 Page 14 of 42 practicable, a short measure fair hearing adjusted, attuned and tailored to the exigency of the situation. The Supreme Court held that the audi alteram partem rule is a very flexible, malleable and adaptable concept of natural justice to adjust and harmonise the need for speed and obligation to act fairly. It can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation. In the ultimate analysis, the question as to what extent and in what measure this rule of fair hearing will apply at the pre-decisional stage would depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case. 15. In K.I. Shephard (supra), action was initiated for amalgamation of three private banks with Punjab National Bank, Canara Bank and State Bank of India respectively. Various employees of the said three banks were adversely affected since they were being taken out of employment as a result of the amalgamation. The Supreme Court held that the rights of the employees who were excluded from employment were vitally affected by the decision to amalgamate and they ought to have been heard before taking any decision to this effect. One of the questions that arose before the Supreme Court was as to whether the employees who were affected could be given a post Wpc 6512.07 Page 15 of 42 decisional hearing. The Supreme Court rejected the suggestion that the post decisional hearing was an adequate remedy for the affected employees, and while doing so, the Supreme Court held as under:- “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 consequences and could obviously not be taken on the ipse dixit of RBI officers without verification of facts. It is quite possible that a maneuvering 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.” Xxx xxx xxx xxx xxx xxx xxx xxx xxx “ Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Wpc 6512.07 Page 16 of 42 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.” “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 Wpc 6512.07 Page 17 of 42 tendency to uphold it and a representation may not really yield any fruitful purpose.” 16. In H.L.Trehan and Others V. Bharat Petroleum Corporation Ltd, (1989) 1 SCC 764, the Supreme Court held that there could be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a government servant will offend against the provision of Article 14. The Supreme Court further held that a post decisional opportunity of hearing does not sub-serve the rules of natural justice. Once a decision has been taken, there is a tendency to uphold it and