SHAH JAYSHREE MANILAL PUSHPABEN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By way of this petition, the petitioner has challenged the orders passed by the respondent No. 2 on 12.9.2008 and 17.4.2009 on the ground that the said orders are illegal and contrary to law. The Petitioner is a student of law and she appeared for her First Semester examination of 1st Year LL.B. in the month of November, 2007. Thereafter, she appeared for the two papers i.e. Labour Law on 21.4.2008 and paper of Contract-I on 23.4.2008. While writing the paper of Labour Law on 21.4.2008 she was warned by the Junior Supervisor, Senior Supervisor and by the Principal i.e. Respondent No. 4, that she should not talk with the other students who were sitting behind her. Despite, she repeated the act and was caught thrice. Since the aforesaid acts of the petitioner constitute misconduct, the petitioner was called in the chamber of the Principal i.e. respondent No. 4 and in the presence of Junior and Senior Supervisor, she tendered written apology on 21.4.2008. Thereafter she was allowed to appear for the second paper of Contract on 23.4.2008. It is contended that the Petitioner was given an impression that as she has tendered written apology, no action would be taken against her. However, respondent No. 4 gave show cause notice on 6.8.2010 and she was called to answer charges levelled against her of adopting unfair means and malpractice at the time of paper of Labour Law. She was asked to appear before the Board of Examinations on 13.8.2008. Initially, the Petitioner approached this court by way of filing Writ Petition (L) No. 2267 of 2008. The Division Bench of this Court vide an order of 17.11.2008 directed the petitioner to approach the Board of Examinations as she had filed representation to the Vice Chancellor of the University. The said petition was disposed of by directing the Board to hear the petitioner and take a decision. The Board of Examinations after hearing the petitioner, held her guilty for indulging in malpractices and unfair means at the time of examination. The decision of the Board which was taken in the meeting of 28.2.2009 was communicated to the petitioner by letter dated 17.4.2009 by the Controller of Examination. It was informed that the Board of Examinations endorsed the decision of the Unfair Means Enquiry Committee and accordingly the papers in which she had appeared i.e. Labour Law and Contract-I were cancelled and a fine of Rs.300/-was imposed upon her. Further it was communicated that the candidate was entitled to get all other benefits as per University Rules and Regulations inclusive of admission. The Petitioner being aggrieved with the order filed this petition.

(2.) On behalf of the petitioner, the matter was argued at great length. It was submitted that as per the charges levelled against the petitioner, she has committed an act of indulging in talking with other candidates who was sitting behind her and secondly, the misconduct alleged against the petitioner was that she wrote some writing in connection with the paper i.e. Labour Law on her palm. It is submitted that petitioner had tendered written apology only for talking with other candidate and she has not apologized regarding writing on her palm and therefore, allegations about writing something on the palm is afterthought and concocted one. It is submitted by Mr. Saraogi that when it was found that the petitioner was talking with the candidate having seat No. 3772, it is a contributory act and only petitioner is held guilty and is made a scape goat. He further submitted that the Authority after accepting this apology allowed her to appear for the next paper i.e. Paper of Contract on 23.4.2008. This shows that the authority had no grievance and they had condoned this act. He pointed out that there is discrepancy in the report submitted by the Junior Supervisor. In fact Junior Supervisor himself did not witness any such talking by the petitioner with the other candidate. He pointed out that in the report of Junior Supervisor which is before the court and the original report which is produced by the Junior Supervisor, there is discrepancy in respect of the writing on the hand about the labour Law. He submitted that the statement of the petitioner was recorded on 13.8.2008 i..e. at the time of enquiry. In the statement, the petitioner has specifically denied the charges and she has stated that the apology was tendered without admitting any allegations and without prejudice. He pointed out that the statement of the other candidate i.e. seat No. 3772 Payal Shah was recorded by the Board of Examinations on 18.8.2008. The dates of the enquiry of the petitioner was 13.8.2008. Thus, it is clear that the enquiry against the petitioner was concluded on 13.8.2008, whereby the statement of candidate No. 3772 was recorded subsequently i.e. on 18.8.2008, therefore, petitioner was denied an opportunity to meet the allegations made by Payal Shah in her statement. He submitted that this particular statement therefore, ought not to have been relied.

(3.) The learned counsel for the petitioner Mr. Saraogi further argued that there is reference to the recording of statement of the petitioner, however, that statement was neither produced before the Board of Examinations nor it is produced before this court. It is submitted that the said statement of the petitioner is suppressed by the Authority and only letter of apology is produced. He submitted that the punishment given by the Authority is severe and as mentioned in the letter of apology the authority should have taken lenient view and granted mercy.