WP(C) 5777/2009 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Since the issues raised in these 4 petitions arise out of a common incident and pertain to common resolution taken by the Gauhati University and the Governing B ody of M.C. College, Barpeta, the arguments were heard together and the cases ar e disposed of by this common order. 2. WP(C) 5777/09 and WP(C) 55/2010 are filed by Dr. Haladhar Dev Go swami who is the Principal In-charge of M.C. College, Barpeta. WP(C) 5887/2009 a nd WP(C) 120/2010 are filed by Mr. Amarendra Das who is a Lecturer and Head of t he Department of English and who was also the Assistant Officer In-Charge of Exa mination of the College. Mr. A.K. Goswami, learned Senior Counsel and Mr. I. Cho udhury, learned counsel made submission on behalf of the 2 petitioners. 3. The petitioners herein challenge the resolution dated 27.11.2009 adopted by the Executive Council of Gauhati University, whereby, inter alia, th e Principal and the Officer In-Charge of the examination of the college have bee n debarred from administrative and examination works of the University for a per iod of 5 years. The petitioners also challenge the recommendation made by the Ex amination Committee for taking deterrent action on the lecturers who were involv ed with examination duties in the college on 28.3.2009. 4. The decision of the Governing Body of the M.C. College adopted i n its meeting of 3.1.2010 is also under challenge, whereby resolution was adopte d to remove and replace the Principal and the further decision taken by the Gove rning Body, to remove the 2 petitioners from their respective departmental heads hip. 5. The impugned action against the petitioners was preceded by an i ncident in the M.C. College on 28.3.2009 when the examination in Major papers we re being conducted. The examinees appearing in Major Paper 3.3 of the B.A. Part- III Examination in Political Science after receiving the question papers, raised a hue and cry as the questions circulated to them was not according to the syll abus taught to them in course of the academic year. Since the commotion caused d isturbance to the other examinees in the room, the Political Science examinees w ere shifted to another examination room. Some days after the examination were ov er, an anonymous complaint was received by the Comptroller of the Examination of the Gauhati University where it was alleged that after the students appearing i n Examination Hall A-1 created a noisy situation for getting wrong question pape r and they were shifted to another examination room, the examinees were facilita ted in writing their answers, by 2 lecturers of Political Science Department who were assigned invigilation duties in that room and accordingly a request was ma de to the university authorities to take necessary action on the said incident. 6. Because of the said complaint of adoption of unfair means, an En quiry Committee was constituted by the University and the Enquiry Committee in c ourse of its sittings recorded the statements of the examiners and the students and thereafter gave its findings. The Enquiry Committee concluded that the Exami nation Board of M.C. College was responsible for wrong handling of the situation and that 2 teachers Abani Kr. Das and Harihar Deka of the Political Science Dep artment had rendered unfair assistance to their departmental students in the exa mination hall. The College Principal was also held accountable and the petitione r Amarendra Das (the Assistant Officer-In-Charge of examination) was specificall y held responsible for wrong handling of the matter and for engaging invigilator s from the same discipline, in the changed examination room. 7. It appears from the resolution of the Executive Council of the U niversity that the impugned decision of 27.11.2009 were primarily based on the f indings of the Enquiry Committee. 8. That 2 petitioners initially challenged the resolution of the Ex ecutive Council of the University whereby they were debarred for 5 years from an y examination and administrative works in the College. But subsequently when the Governing Body of the M.C. College adopted resolutions on 3.1.2010 to remove th e Principal from his position and also to remove the writ petitioners from their respective departmental Headship, the later 2 (two) writ petitions came to be filed. 9.1 Assailing the resolution of the Executive Council of the Gauhati University, it is contended by the petitioners that since the said decisions wa s based primarily on the findings of the Enquiry Committee constituted by the Un iversity, the petitioners ought to have been furnished with a copy of the said r eport and their explanations should have been secured on the conclusion and reco mmendation of the Enquiry Committee before any stigmatic action was taken agains t them. 9.2. The petitioners contend that although their statements were reco rded by the Enquiry Committee, they were not permitted to otherwise participate in the enquiry proceeding(s), cross-examine the other witnesses and accordingly a reasonable opportunity was denied to them and therefore the University Authori ties could not have based their resolution on the recommendation of such Enquiry Committee. 9.3. In so far as the College Governing Body’s resolution is concerne d, it is the contention of Mr. Goswami and Mr. Choudhry, the learned counsels re presenting the 2 petitioners that although the Governing Body decided to remove the petitioners from the post of Principal and Headship of the department respec tively, the said decision was based entirely on the resolution of the Gauhati Un iversity and the College can’t take such stigmatic decision without conducting a formal enquiry/departmental proceeding against the petitioners. 9.4. It is the specific contention of Mr. A.K. Goswami, learned Senio r Counsel representing the Principal that on the day of the examination i.e. on 28.3.2009, he was not present in the College until 11 a.m. as he was attending a meeting with the Deputy Commissioner, Barpeta in connection with the impendin g Panchayat elections and therefore there could be no adverse recommendation or action against the Principal as he could not have been held personally responsib le for the alleged unfair practice adopted in the Political Science examination. 9.5 Mr. Goswami also contends that he has been selectively targeted for disciplinary action because the President of the Governing Body of the Colle ge is not keen to continue him as Principal only because as Principal, the petit ioner had suggested 4 other persons name to be the President of the Governing Bo dy of the College. To show that the Governing Body has been selective, the couns el points out that no action has been taken against the Head of the Department o f the Political Science Department., for whose default, the wrong syllabus was t aught leading to the examination fiasco on 28.3.2009. 9.6. On behalf of the Assistant Head Examiner, it is contended by Mr. I. Choudhury that his client did not have any other role other than shifting th e Political Science examination to another Examination Hall because the other ex aminees were disturbed by the hue and cry raised in the common examination hall and the said decision to shift the examinees was a bona fide decision taken at t he spot, to tackle a potentially volatile situation in the surcharged atmosphere of the examination hall. The counsel submits that even assuming that it was a w rong decision, at best it can be an error of judgment and no punitive action is warranted for a wrong decision taken by the examination in-charge. 10.1 Mr. LP Sharma, learned counsel representing the respondent Unive rsity submits that the examination on 28.3.2009 in the Political Science-III pap er were conducted in M.C. College in violation of the norms prescribed by Rules 30 & 72 of the Revised Examination Rules, 1972 (hereinafter referred to as the Examination Rules ) and therefore the University was perfectly justified in dec iding to debar the concerned persons from involving in examination and administr ative for a period of 5 years. 10.2 The University counsel submits that although unfair means were a dopted by the examinees in the college on 28.3.2009, no intimation of the said i ncident was given by the College or the examination in-charge and accordingly th e University after getting information about the violation was obliged to take a ppropriate remedial action to protect the purity of the examination process. 10.3 The learned counsel points out that the petitioners in their dep ositions before the Enquiry Committee had more or less admitted that unfair mean s were adopted during the Political Science paper on 28.3.2009 and therefore he contends that no further opportunity was necessary to be given, before the impug ned resolution was adopted. 11.1 Representing the M.C. College authorities, Mr. A.M. Bujarbaruah, learned counsel submits that during the Governing Body’s meeting, the Principal as Member Secretary was very much present and he had the opportunity to give ex planation on his conduct for the incident of 28.3.2009 and therefore it cannot b e said that opportunity was not available to the Principal, before the impugned resolution was adopted to remove him from the post of Principal and the Headship of the Physics Department. 11.2 Mr. Bujarbaruah further contends that culpability of the petitio ners have been clearly established by the Enquiry Committee constituted by the G auhati University and considering the recommendation of deterrent action against the petitioners, the Governing Body of the M.C. College was well within its rig ht to adopt the impugned resolution. 12. I have given my anxious consideration to the submissions of the rival counsels. It is seen from the proceedings of the Enquiry Committee that t he statements of the examiners and students who were involved with the examinati on in the college premises on 28.3.2009 were recorded and the Committee gave its findings and recommendation on the basis of those statements. It has been concl uded by the Committee that the situation arising out of the examinees’ agitation was wrongly handled by the Examination Board of the college and accordingly tho se found responsible for the wrong handling of the situation and adoption of unf air means have been held accountable. The Committee however doesn’t record that the Principal was absent when it was decided to shift the examinee to another ha ll and to have the examination conducted in the new hall, with invigilators of t he same department. But the Enquiry Committee held the Principal to be accountab le. So the role ascribed to the Principal is not one of any individual responsib ility but he has been made accountable as the Principal of the College, although at the given point of time, he was attending a meeting with the Deputy Commissi oner, Barpeta, in the latter’s office. 13. The specific role ascribed to the Assistant Examination In-Charg e is of wrong handling of the situation and engaging invigilators from the same subject in the newly arranged room. In respect of the charge of engaging invigil ators from the same subject, I find that Rule 30 of the Examination Rules does n ot place a total bar on appointment of invigilators from the same discipline. Th e rule prescribes that as far as practicable, the subject teachers shouldn’t be appointed as invigilators. Such being the requirement of the Examination Rules, the petitioner Amarendra Das can’t said to have violated an inflexible Examinat ion Rules of the University. At best it can be said that a wrong decision on th e spot was taken by the Examination In-Charge which might have enabled the stude nts to adopt unfair means. In this context, it must also be recorded that no ben efit had accrued to the students who allegedly adopted unfair means in the exami nation of 28.3.2009 as the said examination was scrapped and the students were s ubjected to a fresh examination on a subsequent date. 14. In so far as the accountability of the Principal, since he was n ot present in the College at the relevant time, the worst allegation that can be made against him is that, he did not inform the University Authority about the incident in the College on 28.3.2009. But according to the statement given by th e Principal before the Enquiry Committee, after he returned back to college at a bout 11 a.m., he ascertained the position from the examination in-charge and lea rnt that the problem has been settled. He stated that during his regular rounds in the examination halls nothing untoward was seen by him. If the Principal’s st atement has to be given credence that the situation did not go out of hand and n othing untoward was personally noticed by him, it cannot reasonable to say that even then he was under an obligation to inform the University Authority of the i ncident of 28.3.2009. Since the changed seat plan of the examinees was not notif ied to the University, there might be infringement of the Rule 72(ii) of the Ex amination Rules. But no adverse findings against the Principal has been recorde d by the Enquiry Committee or by the University Authority on any specific infrac tion and he was made generally accountable for the incident of 28.3.2009. 15. It is also seen from the case materials and the submissions that the petitioners were not furnished with the copies of the Enquiry Report and ye t the enquiry findings and the recommendations have been made the basis for the impugned resolution of the Gauhati University adopted on 27.11.2009. Since the e ffect of the resolution has adverse consequences on the petitioners, this Court is of the view that the decision taken by the University ought to have been prec eded by a reasonable opportunity to the petitioners, to contest the findings of the Enquiry Committee and to give their explanation to those findings. 16. In so far as the resolution adopted by the Governing Body of the College to remove the petitioners from their respective positions, it is seen t hat no opportunity was afforded to the petitioners before the impugned decisions . Therefore it is apparent that the decision to remove the petitioners from thei r respective position(s) have been taken in breach of the principle of natural j ustice. Furthermore it is also seen that Gauhati University’s resolution of 27.1 1.2009 has been made the basis for the College Governing Body’s decision of 3.1. 2010. But this Court has concluded that the University could not have been recor ded any adverse resolution, without affording a reasonable opportunity to the pe titioners to contest the adverse findings of the Enquiry Committee, the college Governing Body’s decision too can’t be sustained for the same reasons. 17. In the above circumstances, I am of the considered opinion that the impugned decision of the Gauhati University and also the Governing Body of M .C. College cannot be sustained and the same are accordingly interfered with an d quashed. However the respondents are granted liberty to proceed De Novo if so advised, by affording all reasonable opportunities to the petitioners to defend the charges made against them. 18. Considering however the nature of the allegation and the alleged selective targeting for disciplinary action, I deem it appropriate to record th at placing either of the petitioners under suspension may not be warranted, if t he college authority decides to initiate a disciplinary/enquiry proceeding again st the petitioners. If a De Novo proceeding is started against the petitioners, it is expected that they would render their cooperation in such proceeding. 19. The writ petitions are allowed in terms of the above order witho ut any order on cost.