IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 25566 of 2010(U) -------------------------------------- PETITIONER(S): ---------------------- SREENIKETHAN CENTRE FOR SOCIAL DEVELOPMENT (REGISTRATION NO.G 190/89), REPRESENTED BY DIRECTOR,DR.N.RAVEENDRAN, CHATHANOOR.P.O,KOLLAM-691572. BY ADVS. SRI.DEVAN RAMACHANDRAN SRI.AJITH KRISHNAN RESPONDENT(S): ------------------------- 1. MAHATMA GANDHI UNIVERSITY,REPRESENTED BY ITS REGISTRAR,KOTTAYAM. 2. THE HON'BLE VICE CHANCELLLOR, M.G.UNIVERSITY,KOTTAYAM. 3. THE DIRECTOR,THE DISTANCE EDUCATION, M.G.UNIVERSITY,PRIYADARSHINI HILLS.P.O, KOTTAYAM-686 560. 4. CONTROLLER OF EXAMINATION,M.G.UNIVERSITY PRIYADARSHINI HILLS.P.O,KOTTAYAM-686 560. ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25566/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEMORANDUM OF UNDERSTANDING DTD. 3.11.2009 ENTERED BY THE PETITIONER WITH THE IST RESPONDENT. P2:- COPY OF THE ORDER NO.UO.NO.261/EA II/1/103/2010/EXAM DTD. 3.5.10. P3:- COPY OF THE JUDGMENT DTD. 21.7.10 IN WPC. 17315/10. P4:- COPY OF THE NOTICE NO.EM/AR/XVI/093/I & MP/A-10 DTD. 1.7.2010 FROM THE UNIVERSITY. P5:- COPY OF THE EXPLANATION DT. 22.7.2010 SUBMITTED BY THE PETITIONER. P6:- COPY OF THE LETTER DTD. 7.5.10. P7:- COPY OF THE LETTER RECEIVED BY THE PETITIONER DTD. 4.5.2010. P8:- COPY OF THE COUNTER AFFIDAVIT FILED IN WPC. 17315/2010. P9:- COPY OF THE LETTER NO.EA1/1/389/1/2010 DTD. 29.5.2010. P10:- COPY OF THE COMMUNICATION DTD. 4.8.2010 ISSUED BY THE 4TH RESPONDENT. P11:- COPY OF THE ORDER ISSUED BY THE SIT RESPONDENT DTD. 6.8.2010. P12:- COPY OF THE LETTER ISSUED BY SMT.GIRIJA TO THE PETITIONER. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE REPORT DTD. 25.4.2010 SUBMITTED BY SRI.MANOJ. R1(b):- COPY OF THE COMPLAINT DTD. 7.5.2010. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 25566 of 2010-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of September, 2010. JUDGMENT The petitioner's grievance in the writ petition, mainly is concerning the cancellation of the recognition of the off campus centre, as per Ext.P11 order passed by the University. 2. Practically, it is the third round of litigation between the petitioner and the University. The petitioner is a charitable society engaged in imparting education and conducting various courses like MBA, BBA, etc. The Memorandum of Understanding entered into between the petitioner and the University is available as per Ext.P1. The details regarding the conduct of the classes, examination, etc. are covered by the various clauses in Ext.P1 itself. It is upto the University to allot the examination centre and the Centre will have to arrange a Government recognised institution with sufficient facilities to conduct the examinations as per University standards at the expense of the Centre, going by clause 22. Clause 23 also provides for various details regarding the conduct of examination and going by the same, the question papers will be brought to the examination Centre by the University or by the person authorised by the University and wpc 25566/2010 2 examination will be conducted under his supervision. There will be a Chief Superintendent in the examination Centre and it is not necessary for the purpose of this case to go into the other details of the various clauses in the agreement, except to state that a power is conferred on the University under Clause 33 to cancel the agreement at any moment, if it is found that any action of the Centre is not satisfactory in the opinion of the University, but the same can be done only after conducting an enquiry. 3. Herein, the cancellation as per Ext.P11 was mainly because of the malpractices which occurred in the examination Centre on 26.4.2010. Initially, the University passed Ext.P2 order, whereby certain students of the Centre were debarred from appearing for the remaining examinations due to mass copying and malpractices, pending enquiry. Item (iii) in para 1 of Ext.P2 concerns the petitioner's Centre and the remaining relate to Centres conducted by other institutions. Accordingly, it was ordered to suspend the petitioner's Centre pending enquiry and an Enquiry Committee was constituted comprising Prof. V.N. Chandra Mohan and Prof. K. Sadasivan Nair, Members of the Syndicate to conduct a detailed enquiry and to submit the report. One Assistant Registrar was co-ordinated as the Secretary of the Enquiry Committee. This was under challenge by the petitioner in W.P.(C) No.17315/2010 which was disposed of as per Ext.P3 judgment. This Court wpc 25566/2010 3 interfered with the suspension of the centre and then, after considering the validity of Ext.P2 herein,(Ext.P4 produced therein), took the view that there should be proper enquiry and the cancellation should precede a finding that the same is warranted and required in the facts and circumstances of the case. 4. Ext.P3 judgment is dated 21.7.2010 and Ext.P4 show cause notice proposing the cancellation is dated 1.7.2010. It appears that even before the judgment was rendered, Ext.P4 show cause notice was issued by the University. The show cause notice evidences the fact that the Enquiry Committee found serious irregularities in the Centre which are given as items 1 to 7 therein. The Enquiry Committee placed its report before the Syndicate and the Syndicate in its meeting held on 5.6.2010 has resolved to authorise the Registrar to issue notice to the Centre authorities to show cause as to why recognition given to the Centre shall not be cancelled. The petitioner duly replied to them and the complaint raised in the writ petition actually relates to the irregular and illegal manner in which the enquiry was conducted by the Enquiry Committee and the decisions were taken by the various authorities including the Vice Chancellor relying upon the same. The petitioner mainly alleges that a proper enquiry was not conducted. In spite of the judgment of this Court, the enquiry has been done without wpc 25566/2010 4 furnishing any opportunity to the petitioner to defend the action and it was conducted with undue haste. Mainly it is pointed out that without allowing the petitioner to cross examine the persons who had submitted statements to the Committee at various stages, that too allegedly behind the back of the petitioner and without furnishing the copies of the various reports this action was taken. Various other irregularities and defaults have been narrated in the writ petition. 5. Lastly, it is pointed out that the petitioner was served with Ext.P10 telegram to appear before the Enquiry Committee for a hearing on 5.8.2010 at 2 p.m. in the Syndicate Room of the University. It is pointed out that the petitioner appeared before the Committee along with his counsel and the hearing was over by 5 p.m. Immediately next day, viz. on 6.8.2010 the Vice Chancellor passed Ext.P11 order cancelling the Centre. But therein it is recorded that the Vice Chancellor approved the recommendation of the Syndicate Standing Committee on Examinations. According to the learned counsel for the petitioner, the said Committee even though is stated to have conducted an enquiry on 5.8.2010, the same is factually incorrect and the petitioner was not associated with any such enquiry said to have been conducted by the Syndicate Standing Committee on Examinations. It is therefore submitted that even while passing Ext.P11 order, undue haste has wpc 25566/2010 5 been shown and according to the petitioner, it is unbelievable as to how the Vice Chancellor could have passed an order in a matter like this, that too on the next day of the conclusion of the enquiry. 6. Learned counsel for the petitioner further submitted that even the statements received by the Enquiry Committee which have been produced as Ext.R1(a) under the signature of Shri Manoj R. and Ext.R1(b) under the signature of Smt. Girija V. are really suspicious, full of incorrect facts and it is further pointed out that they have been straight away accepted without putting them to the notice of the petitioner and requiring them to answer them. No opportunity was given to cross examine them. It is further pointed out that the complicity of Smt. Girija who was a teacher in a C.B.S.E. school, in the entire episode is really suspicious and my attention was invited to Ext.R1(b) produced along with Ext.P8, copy of the counter affidavit in the earlier writ petition. She has given a statement dated 11.5.2010 and a reading of the same, according to the learned counsel, will show that the document produced as Ext.R1(b) along with the counter affidavit now, will be a concocted one. It is explained that if all these were made available to the petitioner and a proper opportunity was given to adduce evidence by a properly constituted Enquiry Committee, the petitioner could have established the innocence of the Centre. It is further wpc 25566/2010 6 pointed out that the petitioner is ready to face a fresh enquiry as the future of various students will be affected if the recognition of the Centre is cancelled. 7. Heard learned Standing Counsel for the University. He submitted that the enquiry that is contemplated under Clause 33 of Ext.P1 cannot be equated with an elaborate one like a disciplinary enquiry conducted based on allegations against employees etc. and therefore, what is required is only forming of an opinion by the University with regard to the activities of the Centre. It is therefore submitted that the accusations made against the petitioner in the enquiry and the manner in which the enquiry was conducted, cannot be said to be illegally done. It is further pointed out that the enquiry was going on simultaneously during the pendency of the earlier writ petition and therefore the same was concluded by the Committee appointed in a proper manner and after giving due opportunity to the petitioner also. It is thus argued that what is contemplated is only a summary enquiry wherein the University and its various authorities including the Enquiry Committee were given proper information by the persons concerned about the malpractices Committed by the Centre, the complicity of the authorities of the Centre, etc. which justifies the final order passed by the Vice Chancellor. Learned Standing Counsel sought to wpc 25566/2010 7 justify the cancellation of recognition which is distinct from those institutions covered by Ext.P2 and submitted that only in the case of the petitioner alone, the complicities of the office bearers of the Centre were found out. 8. The question therefore is whether a proper enquiry ought to have been conducted by the University and whether the enquiry which was conducted suffered from any of the infirmities pointed out. The conduct of the Centre and the other activities are governed by Ext.P1 Memorandum of Understanding. Clause 33 really gives freedom to the University to take any action if in the opinion of the University, actions taken by the Centre are not satisfactory and accordingly they have given a right to cancel the agreement at any moment after conducting an enquiry. Even though the said clause gives an impression that there is a larger and wide power conferred on the University to utilise the power to cancel the recognition of the Centre, in the light of the well settled legal principles it cannot be disputed that a drastic step like cancellation of the recognition of the Centre, really visits with adverse civil consequences to the petitioner. Therefore, compliance with the principles of natural justice is a must and that alone will ensure fair play and justice. Therefore, it has to be considered whether a proper enquiry as directed by this Court in Ext.P3, was conducted by the University. A wpc 25566/2010 8 reading of Ext.P3 judgment shows that this Court was of the view that the action that is proposed against a student and the actions, if any, proposed against a Centre are really different. A malpractice committed by a student probably may invite cancellation of the examination undertaken by him, but to say that automatically the same should result in cancellation of a Centre itself, will not be proper, This Court was pleased to hold in Ext.P3 judgment that unless there are grounds for cancellation, the same cannot be justified. Of course, this Court was only called upon to consider the validity of the suspension alone in Ext.P3. But ultimately, in para 14, after referring to Clause 33 of Ext.P1, it was observed thus: “Even for terminating the services of a centre co-ordinator, Clause 33 provides for proper enquiry after giving prior intimation. It goes without saying that the agreement can be cancelled by the University only after making a proper enquiry and after finding that the cancellation of the campus is warranted and required in the facts and circumstances.” The said finding therefore binds the respondents. 9. Evidently, herein the enquiry was conducted before the judgment was rendered. As noted already, a two member committee of the Syndicate was appointed to conduct the enquiry. The report of the Committee was placed before the Syndicate on 5.6.2010 and accordingly the show cause notice was issued. Even Ext.P4 show cause notice shows that items 5 and 6 wpc 25566/2010 9 therein are the points noted against the management. Therefore, the issue as far as the management is concerned, is serious and naturally they should get a proper opportunity to defend themselves in the enquiry. Evidently, the enquiry report was submitted even without conducting an elaborate enquiry, especially since now it is pointed out by the learned counsel for the petitioner that the statements relied upon by the said Committee and the facts stated therein are, according to the petitioner, really incorrect and ought not have been relied upon by the Enqiry Committee. Therefore, naturally the petitioner should have been given a proper opportunity to avail of all the defences. When we come to the final order Ext.P11, what is evident is that the Syndicate Standing Committee on Examinations is stated to have been conducted an enquiry on 5.8.2010 which is factually incorrect, going by the narration of facts already made above. What was done is only an enquiry by a two member committee of the Syndicate and their report was already approved by the Syndicate on 5.6.2010, going by Ext.P4 show cause notice. In fact, as pointed out by the learned counsel for the petitioner, the telegram Ext.P10 required the petitioner to appear before the Committee and really the Enquiry Committee was shown as the “Enquiry Committee” and not the Syndicate Standing Committee on Examinations. It is not clear as to how the said Committee, viz. the Syndicate Committee wpc 25566/2010 10 on Examinations conducted the enquiry and its report was accepted by the Vice Chancellor while passing Ext.P11. All these things really happened behind the back of the petitioner and therefore they cannot be accepted. The facts really point out the necessity to have a fresh enquiry as sought for by the petitioner. 10. Therefore, Ext.P11 is quashed. There will be a direction to conduct a proper enquiry by a properly constituted body and the same will be conducted with due notice to the petitioner and after affording all opportunities to them to defend their case. All the materials available and sought to be relied on, will be furnished to the petitioner and if the petitioner seeks for examination of any witnesses or cross examine anybody, that opportunity also will be given. The enquiry will be completed expeditiously and the petitioner shall co-operate with the enquiry. The conduct of the Centre in the meanwhile, will be subject to the result of the enquiry. Learned counsel for the petitioner submitted that the petitioner may have to examine Prof. Chandra Mohan and therefore he may not be associated with the enquiry as that will violate the principles of natural justice. This is a matter for the University to consider. Since Ext.P11 is quashed, the name of the Centre will have to be shown in all the official informations given by the University for the knowledge of the wpc 25566/2010 11 students, including website if it is normally being done in the case of other Centres. If the petitioner has got any complaints in this regard, it will be open for them to approach the Vice Chancellor who will take appropriate action in that regard. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/