W.P.(C) No.1687/2008 Page 1 of 22 *IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 14th September, 2010. + W.P.(C) No.1687/2008 % AKHLAQUE AHMAD KHAN ..... Petitioner Through: Mr. Alamgir, Advocate. Versus JAMIA MILLIA ISLAMIA ..... Respondent Through: Mr. Bharat B Sawhney, Sr. Advocate with Mr. Lakshay Sawhney, Advocate. CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may 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. RAJIV SAHAI ENDLAW, J. 1. The petitioner by this writ petition, instituted in the year 2008, seeks (i) quashing of the order dated 8th June, 2001 of the Vice Chancellor of the respondent University rusticating the petitioner from the University; (ii) direction to the respondent University to allow the petitioner to appear in the examination of two papers/subjects in which he had received compartment and in the viva voce exam which he had not taken, of the final W.P.(C) No.1687/2008 Page 2 of 22 (IIIrd) year of Course of Diploma in Mechanical Engineering, and to so allow the petitioner to complete the said course. 2. The petitioner after clearing his class 12th examination in the year 1999 joined the three year course of Diploma in Mechanical Engineering in the respondent University. The petitioner completed three years of his course. However, just before the final (3rd year) examination of the said course, the petitioner was accused in an FIR dated 4th May, 2001 of offences under Sections 307/34 of the Indian Penal Code, 1860 and owing whereto he was, vide order dated 9th May, 2001 of the University, suspended with immediate effect from the University and debarred from participating in any of the then oncoming annual examination and from entering the Campus of the University. 3. The complainant, at whose instance the FIR was registered, was also a student of the respondent University. It was inter alia his complaint that of all the students who had assaulted him, including the petitioner, one had a pistol. The complainant appeared before the Disciplinary Committee of the respondent University on 23rd May, 2001 and stated that the petitioner was the one in possession of the pistol. Owing to the injuries suffered by the complainant in the said incident, he had to be immediately hospitalized. The Disciplinary Committee of the respondent University which met on 1st June, 2001 being of the view that the misconduct by the petitioner was of a serious W.P.(C) No.1687/2008 Page 3 of 22 nature and that the presence of such student on the rolls of the University was highly detrimental to harmonious academic activities on the campus, recommended stringent action against the petitioner. In pursuance to the said recommendation, the Vice Chancellor of the respondent University vide order dated 8th June, 2001 rusticated the petitioner forever from the rolls of the University and also imposed a campus ban on him restraining him from entering Jamia campus including hostel, offices and residential areas. 4. The FIR aforesaid against the petitioner was preceded by an FIR at the instance of the petitioner against the complainant aforesaid. 5. The petitioner has pleaded and the respondent University has not controverted that the complainant in the FIR against the petitioner was discharged from the Hospital on the very next day. It is also on record that the accused in neither of the FIRs were arrested and applied for anticipatory bail. The said anticipatory bail applications came up before the Additional Sessions Judge on 10th July, 2001. Both sets of accused informed the Court that the FIRs were a result of a fight between them on account of notebooks. Though the allegation in the FIR was of use of firearm but the Sessions Judge not finding any evidence thereof summoned the doctors who had examined the complainant in the FIR against the petitioner and was satisfied that in the said fight there was no use of any firearm. The Sessions Judge being of the opinion that the fight between the parties being on a trivial issue W.P.(C) No.1687/2008 Page 4 of 22 and the accused being students, 20-22 years of age and on being informed that the accused in both the FIRs had amicably settled and there was no bitterness between them, granted anticipatory bail to the accused in both the FIRs. 6. The petitioner owing to the order dated 9th May, 2001 of his suspension was being prevented from taking the examination of his final year course. He preferred WP(C)3042/2001 in this Court and by an ex parte order dated 17th May, 2001 therein the petitioner was permitted to appear in the examination with the further direction of his result to be not declared without permission of the Court. Upon the order aforesaid of rustication dated 8th June, 2001 being made, the said writ petition was on 27th July, 2001 adjourned to enable the petitioner to file appropriate petition or application challenging the rustication. However, the petitioner neither filed any application in the said petition nor a fresh writ petition challenging his rustication and also failed to appear in the said writ petition when it was listed on 29th August, 2001. The said writ petition was accordingly dismissed in default. 7. The prosecution of the petitioner in pursuance to the FIR aforesaid was put to trial. However, owing to the complainant and the other witnesses in the FIR against the petitioner failing to depose against the petitioner, the W.P.(C) No.1687/2008 Page 5 of 22 petitioner was acquitted vide judgment dated 19th January, 2004 of the Sessions Judge. 8. The petitioner had been representing to the respondent University since June, 2001 to allow him to complete his course. After the order of acquittal, the petitioner and his father continued to represent to the respondent University. Though vide order aforesaid in the earlier writ petition it was directed that the result of the examination which the petitioner had undertaken was not to be disclosed without the permission of the Court but it appears that in the year 2007 the University disclosed the said result to the petitioner. As per the said result, out of the 9 papers which the petitioner had taken, he had cleared 7 and received compartment in two papers and in which he was eligible to appear again. It also appears that upon the order of rustication being made, the petitioner was not allowed to appear in the viva voce examination. Thus, the petitioner was marked absent in the same also and was eligible to reappear in the same. The petitioner after declaration of his result renewed his representations to the University. The petitioner pleaded that since he had already completed his three years and had also cleared most of the papers he should be permitted to reappear in the same to enable him to become qualified and obtain the Diploma Certificate. The petitioner represented that he was in employment in a private company but his career prospect would considerably improve if allowed to complete the W.P.(C) No.1687/2008 Page 6 of 22 course. However, the respondent University remained silent. Ultimately the present petition was filed. Notice of the petition was issued. 9. This Court after some hearing on 14th January, 2009 directed the University to produce the original records including the file containing the representations of the petitioner. After some adjournments the counsel for the respondent University informed on 25th August, 2009 that the file had been misplaced. Again, after hearing on 9th September, 2009 the petitioner sought an opportunity to make a representation to the University and the matter was adjourned with direction to the University to consider the said representation of the petitioner. Subsequently, it was informed that the representation had been rejected by the University. 10. The respondent University in its counter affidavit has stated that for some time in the past, the respondent University having a glorious history, had degenerated owing to frequent disturbances and indiscipline on the Campus and which had become a danger to the health of the University and its academic standards and goals; deterrent action by way of rustication/campus ban was accordingly taken against such of the students as were involved in incidents of physical violence, intimidation and other acts of indiscipline. It is further pleaded that the Vice Chancellor of the University who had all the powers vested in him relating to discipline and disciplinary action vide Statute 31 of the Jamia Millia Islamia Act, 1988 has W.P.(C) No.1687/2008 Page 7 of 22 decided after careful assessment and consideration of the delicate and fragile peace on the Campus that allowing any laxity to the petitioner who had a tainted past of indiscipline is fraught with grave risk of jeopardizing the academic environment and interest of thousands of students. It is further pleaded that acquittal by Courts from the provisions of the Indian Penal Code does not imply and necessarily mean that the concerned person needs to be exonerated of indiscipline/misconduct committed by him in the campus of an educational Institution. It is also pleaded that the writ petition is hopelessly time barred having been preferred after a lapse of seven years. It is yet further pleaded that the petitioner having earlier preferred a writ petition cannot be permitted to re-agitate the issue by this writ petition. It is lastly pleaded that the course aforesaid was required to be completed by the petitioner within a maximum period of six years and the petitioner cannot be granted the relief for this reason also. 11. The matter came up again before this Court on 14th July, 2010 when after some hearing the respondent University was directed to place before this Court the Rules, if any, of the University to mete out the punishment as of rustication and regarding the maximum time limit prescribed for completing the course and also the order of the University rejecting the representation of the petitioner. W.P.(C) No.1687/2008 Page 8 of 22 12. The respondent University in response to the order dated 14th July, 2010 of this Court has placed before this Court extract of its Statute 31, Ordinance 14 and 15 and the handwritten noting stated to be of the Vice Chancellor on the representation of the petitioner in pursuance to the order dated 9th September, 2009 aforesaid in these proceedings where the Vice Chancellor has only observed “Let the matter be decided in court. We must pursue vigorously.” 13. The senior counsel for the respondent University besides urging on the aspects aforesaid taken in the counter affidavit has contended that the Courts ought not to interfere with the decision of educational bodies. Reliance is placed on the Division Bench judgment of this Court on Kumari Preeti Srivastava Vs. Central Board of Secondary Education 1994 III AD (DELHI) 1425 where the Division Bench refused to interfere when the student was found to be short of attendance. He also argued that the petitioner had attacked the complainant in the FIR with a knife and an iron rod and stabbed the complainant in the chest. It is also urged that no mandamus contrary to the Rules can be issued. 14. The respondent University has been established vide The Jamia Millia Islamia Act, 1988 enacted by the Parliament of the Country. Section 30 of the said Act is as under: W.P.(C) No.1687/2008 Page 9 of 22 “30. (1) Any student or candidate for an examination whose name has been removed from the rolls of the University by the orders or resolution of the Shaikh-ul-Jamia (Vice- Chancellor), Discipline Committee or Examination Committee, as the case may be, and who has been debarred from appearing at the examinations of the University for more than one year, may, within ten days of the date of receipt of such orders or copy of such resolution by him, appeal to the Majlisi- Muntazimah (Executive Council) and the Majlis-i-Muntazimah (Executive Council) may confirm, modify or reverse the decision of the Shaikh-ul-Jamia (Vice-Chancellor) or the concerned Committee, as the case may be. (2) Any dispute arising out of any disciplinary action taken by the University against a student shall, at the request of such student, be referred to a Tribunal of Arbitration and the provisions of subsection (2), (3) and (4) of section 29 shall, as far as may be, apply to a reference made under this sub- section.” The Tribunal of Arbitration under Section 29 of the Act is to consist of one member appointed by the Executive Council, one member nominated by the student concerned and an umpire appointed by the Visitor of the University. Under Section 8 of the Act the President of India is the Visitor of the University. Section 31 of the Act also vests a right of appeal in a student of the University to the Executive Council against the decision of any officer or authority of the University and vests the power in the Executive Council to confirm, modify or reverse the decision appealed against. 15. Statute 31 of the University produced by the University pursuant to the order dated 14th July, 2010 in these proceedings is as under: W.P.(C) No.1687/2008 Page 10 of 22 “31. MAINTENANCE OF DISCIPLINE AMONG STUDENTS OF THE UNIVERSITY: (1) All powers relating to discipline and disciplinary action in relation to students shall vest in the Shaikh-ul-Jamia (Vice- Chancellor). (2) The Shaikh-ul-Jamia (Vice-Chancellor) may delegate all or any of his powers as he deems proper to any officer as he may specify in this behalf. (3) Without prejudice to the generality of his powers relating to the maintenance of discipline and taking such action in the interest of maintaining discipline as may seem to him appropriate, the Shaikh-ul-Jamia (Vice-Chancellor) may, in the exercise of his powers, by order, direct that any student or students be expelled or rusticated, for a specified period or be not admitted to a course or courses of study in a Department or an Institution of the University for a stated period, or be punished with fine for an amount to be specified in the order, or be debarred from taking an examination or examinations conducted by the University or a Department or an Institution for one or more years, or that the results of the student or students concerned in the examination of examinations in which he or they have appeared be cancelled.” 16. Ordinance 14 titled “Students Discipline” provides: “4. Students found guilty of breach of discipline shall be liable to such punishment, as prescribed below: (1) Fine; (2) Campus Ban (3) Expulsion; and (4) Rustication. However, no such punishment shall be imposed on a erring student unless he is given a fair chance to defend himself. This shall not preclude the Shaikhul-Jamia (Vice- W.P.(C) No.1687/2008 Page 11 of 22 Chancellor) from suspending an erring student during the pendency of disciplinary proceedings against him. 5. All powers relating to discipline & disciplinary action in relation to the student shall vest in the Shaikhul-Jamia (Vice-Chancellor). However the Shaikhul-Jamia (Vice- Chancellor) may delegate all or any of his powers as he deems proper to the proctor or to the discipline committee as the case may be or any functionary of the University. 6. Powers relating to discipline/misconduct shall be regulated by Statute 31 read with Section 30 of JMI Act, 1988. 7. (i) Without prejudice to Section 30 of JMI Act 1988 as also Statute 31, There shall be a Discipline Committee comprising of the following members (1) The Shaikhul Jamia (Vice-Chancellor)-(Chairman); (2) The Naib Shaikhul Jamia (Pro-Vice-Chancellor); (3) The Dean Students‟ Welfare; (4) The Provosts; (5) The Deans of the Faculties; (6) The Warden, who shall be invited, when the matter concerning his/her Hostel/Kitchen is required to be placed before the Committee for consideration; and (7) The Proctor (Member/Secretary).” 17. A perusal of the aforesaid provisions show that clause 3 of the Statute 31 though preserving the general power of the Vice Chancellor to take such action in the interest of maintaining discipline as may be appropriate makes provision for rustication for a “specified period” only and not “forever” as has been done in the present case. Ordinance 14 in clause 4 thereof, though not qualifying the punishment of rustication with “for a specified period”, but clause 6 of the said Ordinance provides that the powers relating to W.P.(C) No.1687/2008 Page 12 of 22 discipline/misconduct shall be regulated by Statute 31 read with Section 30 of the Act. The question which therefore arises is whether rustication “forever” is permissible under the Statute aforesaid and if permissible whether it is justified. 18. The other interesting facet which a perusal of the Act, Statute and Ordinance reveals is that though the Act provides for appeal to the Executive Council against the decision of the Vice Chancellor and for reference to of the dispute if still remaining to the Tribunal of Arbitration but notwithstanding the repeated representation of the respondent in the present case, neither was the said procedure followed nor the petitioner advised to follow the same nor has the same been referred to in the counter affidavit. Inspite of express direction to the respondent University in the order dated 14th July, 2010 to produce the provision for meting out punishment for misconduct, the provisions of the Act were not relied upon. 19. I have recently had an occasion to deal with a case of rustication by the University of Delhi, in judgment dated 8th September, 2010 in WP(C)1897/2010 titled Akshay Chaudhary Vs. University of Delhi. There can be no dispute with the reasoning given by the University of the requirement to maintain discipline in the University and with which I have expressly agreed in Akshay Chaudhary. However, I fail to understand as to why the University in the present case has not abided by its Act, Statute and W.P.(C) No.1687/2008 Page 13 of 22 Ordinance. The petitioner has pleaded and it is not disputed that he belongs to a poor family. The father of the petitioner in his representation to the University has stated that he has a large family and was with great efforts educating the petitioner for a better future and if the petitioner is deprived of education all his hopes will plummet. The said pleadings of the petitioner have not been controverted in the counter affidavit. With the petitioner coming from such a class of the society, the ignorance of the petitioner of the provisions of the Act, Statute and Ordinance can be well understood. The petitioner did not invoke the provisions of the Act to make an appeal to the Executive Council or to seek reference of the dispute to Tribunal of Arbitration. However, the same, in my view, does not justify the respondent University from taking advantage of the situation. It is not as if the petitioner was keeping quiet. The petitioner right from 8th June, 2001 was regularly representing to the University. The least which the University could have done was to guide the petitioner to the correct remedy. It remains unexplained as to why the same was not done. 20. The order dated 8th June, 2001 of rustication in the present case was within about a month of the incident of misconduct on 4th May, 2001. May be the order in the circumstances then prevailing was justified. However, substantial events had transpired since then; in July, 2001 itself the complainant, at whose instance the FIR was registered against the petitioner, supported the petitioner in obtaining anticipatory bail. During the said W.P.(C) No.1687/2008 Page 14 of 22 proceedings of anticipatory bail it was also clarified that there was no use of firearm as may have been believed till then. Thus, the case which may have existed against the petitioner at the time of order of rustication on 8th June, 2001 was found to have not existed. 21. However, the Vice Chancellor of the University notwithstanding the direction by this Court in order dated 9th September, 2009 to consider the representation of the petitioner, appears to have not considered the matter. He chose to leave it to this Court to decide with a direction to his advocates to argue vigorously. 22. No mind appears to have also been applied as to why the order of rustication of the petitioner should not be for a specified period and should be forever. I have in Akshay Chaudhary observed that, all in all punishment hardens and renders people more insensible; it concentrates; it increases the feeling of estrangement; it strengthens the power of resistance (courtesy Friedrich Nietzsche, German Philosopher) and that any punishment that does not correct, that can merely rouse rebellion in whoever has to endure it, is a piece of gratuitous infamy which makes those who impose it more guilty in the eyes of humanity, good sense and reason, nay a hundred times more guilty than the victim on whom the punishment is inflicted (Courtesy Marquis De Sade, French Novelist). The French Philosopher Voltaire famously said that the punishment of criminals should be of use, when a W.P.(C) No.1687/2008 Page 15 of 22 man is hanged he is good for nothing. Justice Krishna Iyer also in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. AIR 1978 SC 429 observed that punitive harshness should be minimized. 23. The petitioner was a young lad of about 20-22 years when the incident aforesaid happened. I have no doubt in my mind, notwithstanding his acquittal that he was involved in the incident. However the said guilt has to be viewed in the context of his youth. Aristotle said “Young people are in a condition like permanent intoxication, because youth is sweet and they are growing”. Oscar Wilde by saying “To get back one‟s youth one has merely to repeat one‟s follies” put the matter succinctly. The punishment of rustication forever is the hardest administrative punishment possible which could have been meted out to the petitioner. The Supreme Court in Ranjit Thakur Vs. Union of India AIR 1987 SC 2386 held that the question of choice and quantum of punishment, though within the jurisdiction and discretion of the punishing authority, but the sentence has to suit the offence and the offender; it should not be vindictive or unduly harsh nor it should be so disproportionate to the offence so as to shock the conscience and amount in itself to conclusive evidence of bias; the punishment if in outrageous defiance of logic, then would not be immune from correction. Reliance was placed on the earlier judgment in Bhagat Ram Vs. State of Himanchal Pradesh AIR 1983 SC 454 laying that penalty imposed must be commensurate with the gravity of the misconduct and that any penalty W.P.(C) No.1687/2008 Page 16 of 22 disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution. 24. The Division Bench of the Karnataka High Court in T.T. Chakravarthy Yuvraj Vs. Principal, Dr. B.R. Ambedkar Medical College AIR 1997 Karnataka 261 held that in inflicting appropriate punishment, certain aspects have to be borne in mind. The relationship of the Head of the Institution and the student is that of a parent and child, the punishment imposed should not result in any retribution or give vent to a feeling of wrath. The main purpose of punishment is to correct the fault of the student concerned by making him more alert in future and to hold out a warning to other students to be careful, so that they may not expose themselves to similar punishment and the approach is that of a parent towards an erring or a misguided child. It was held that the concerned Head of the Institution must necessarily have an introspective and a rational faculty as to why lesser penalty cannot be imposed. In doing so, it should also be borne in mind that when the maximum penalty is imposed, total ruination stares one in the eye rendering such student a vagabond as being unwanted both by the parents and the educational Institution. Frustration that would result would seriously jeopardise young life.