PRABHU RAM CHOUDHARY Vs. UNIVERSITY OF JODHPUR

JUDGEMENT

(1.) -

(2.) THIS writ petition is directed against the order of the University of Jodhpur, Annex. 4 dated 31.8.1989 whereby the petitioner's examination of B.A. final for the year 1989 was cancelled and he was debarred from appearing at any subsequent examination of 1989. However, he was allowed to appear at the 1990 examination as Ex or private student if he so desired. Petitioner challenges this order through this writ petition. The contention of the petitioner is that he was student of the University of Jodhpur as it then was because now the name of the University of Jodhpur has been changed to Jai Narain Vyas University of Jodhpur. He was student of B.A. final. He appeared in B. A. Final Examination, 1989 with Roll No. 196. On 16.4.1989, when the petitioner was attempting the question paper of Sociology 1 in S.M.K. Hall Examination Centre at about 10.10 A.M. when the petitioner was about to finish his question paper,1 members of the Flying Squad came in the exanination hall and found a piece of paper on the floor. The flying Squad took the paper in their possession, tore it into two pieces as it was found in between the four tables of the students including the petitioner. The members of the Flying Squad compared these papers with the handwriting of the each candidate. On enquiry, the petitioner told them that he did not bring this paper in the examination hall and he is not guilty of any unfair means. However, neither his copy was taken nor it was seized nor any form was given to him to fill up as required by R. 73 but the paper was taken away by the Flying Squad and thereafter probably it was sent to the examiner and the examiner felt that this paper could have been used by him in answering quesion No. 4b which the petitioner says that he had never attempted. Be that as it may, the Head Examiner also supported this contention of the Examiner whereas probably the report of the Flying Squad was that this paper belonged to the petitioner and he has used it in answering questions No. 1 (b) and 4 (b). Be that as it may, the Registrar, University of Jodhpur gave him a show cause notice vide letter dated 5.05.1989 marked as Annex. 1 whereby he was informed that he has been found in possession of two handwritten notes when he was attempting paper I of subject Sociology of B.A. Final. The Examiner has reported that he could have used the unauthorised material in answering questions No. lb and 4b and material, found in his possession related to the subject concerned and, therefore, he has committed an offence mentioned at S. No. (a) punishable under Ordinance Nos. 94, 95 and 96 of the Jodhpur University on account of having been found in possession of the unauthorised material in the examination hall. Under note S. No. 5, the provisions of Regulation 73-1 have been incorporated and Clause (a) provides that the candidate who is found in examination hall in possession of some material related to the subject which can be used in the examination hall but which has not been used, the candidate's examination for that year, shall be cancelled. He was further informed that in case he desires to be heard in person by the Unfairmeans Committee, he should state so clearly in his reply to the show cause notice by 22.05.19S9. Thereafter, the petitioner filed his reply dated 15.5.1989 Annex. 2 in which he clearly refuted the charge that he was found in possession of any paper rather his clear cut contention was that it was found in between the four tables. He did not bring it to the examination hall and this paper which was found to the floor was torn in two pieces by the members of the Flying Squad. He did not attend the question No. 4b. The members of the Flying Squad tried to compare the paper with the copies of the four students. The Invigilator was Mr. Sona Ram and his statement can be recorded to find-out how the matters have happened THIS unauthorised material was not found in his possession but was found on the floor. Thereafter Annex. 3 has been filed which records the proceedings of the Unfairmeans Committee and a consequential order Annex. 4 which has been passed by the Syndicate. The contention of the petitioner is that the exercise of the power is malafide & arbitrary. There are major contradictions in the report of the Flying Squad and the report of the examiner and the Syndicate has erred in approving the finding of the Enquiry Committee without going through the record and the reports of the Flying Squad and the Invigilator. The show cause notice that was given to the petitioner was that he could have used the material in answering question No. 4 (b) which he has not attempted. The Committee gave a finding that the candidate has used Slip No. 2 in attempting question Nos. lb & 4b but that was not the notice, given to him and, therefore, the wrong findings have been recorded by the Enquiry Committee and they are illegal and liable to be quashed. There is no evidence on record that in whose possession, this paper was found. Nobody from the Flying Squad has been examined nor the Invigilator has been examined because in this case, the paper was not found in the possession of the candidate but was found on the floor and, therefore, it was essential to be established as to who was the person responsible for bringing this paper to the examination hall. The petitioner strongly refuted the charge that he brought this paper in the examination hall. The enquiry, made, was not an enquiry in the eye of law because neither the Invigilator nor the members of the Flying Squad nor the examinees in the hall who were present, have been examined to record a finding as to who brought this paper. It is also alleged that the Syndicate before awarding the punishment to the petitioner has not given reasonable opoortunity of hearing, therefore, Annex. 4 dated 31.7.89 is bad.

(3.) IT was contended by Mr. Jakhar that no compliance of Regulation 73 has been made. The Flying Squad which, it is alleged, picked up the paper from the floor of the examination hall, or for that matter, the Invigilator did not take into its possession the copy of the petitioner, did not supply the petitioner with any other copy and did not call the Supirintendent or Additional/Deputy Superintendent of the Examination Centre. He does not know whether the suspected material was signed by the Superintendent or Addl /Deputy Superintendent or by the Invigilator. No form in Appendix 'A' was supplied to him for being filled-up by him. The suspected material alongwith his copy was not sealed and no second copy was supplied to him. He rather requested that the Invigilator should be examined but he has not been examined. He does not know what is the report of the Flying Squad because that report was not scribed before him on Appendix 'A' as per Regulation 73-D and no proceedings as required by Regulation 73-D were taken. He has not been supplied with or allowed to inspect the report of the Invigilator or Flying Squad or the Centre Superintendent which is essential as per Regulation 73-H. The allegation against the petitioner was that a paper was found near him but nobody has been examined to show that whether that paper was picked up by the Invigilator or by the Flying Squad. Nobody has been examined to show that that paper has been compared with his copy and it has tallied with it. IT has been stated by the respondents that the Invigilator tallied it with the petitioner's copy but that Invigilator has not been examined and his report has not been produced for inspection of the candidate. Rather the candidate categorically requested for the examination of the Invigilator but he has not been examined. Be that as it may, the paper was taken into possession not by the Invigilator but by the Flying Squad and probably as per Annex. 3, it has been compared by the Flying Squad with his copy but the Committee felt as per Annex. 3 that member of the flying Squad has no right to compare the note, recovered from candidate with his answer-book. IT is not mentioned in Annex. 3 that the Invigilator has compared it with his answer-book and reported that it has tallied with the handwriting of candidate examinee. When this fact itself has been disputed by him in his reply Annex. 2 that this paper was not found in his possession and it was not recovered from him and it was not brought by him in the examination Hall, it ought to have been established by the University before punishing him that this paper was brought by him in the examination hall. The examiner and the Head examiner had no personal knowledge about the possession of the paper and the Annex. 3 docs not disclose that they have compared this manuscript paper with his handwriting contained in his answer-book and have given a report that the handwritten note was in the hand of the petitioner. Rather, the examiner's report is thai this paper could have been used in answering question No. 4b and this what is contained in Annex-1 notice which has been given to him. IT is not the case of the examiner that this paper has been used in answering questions No. lb and 4b. IT has been reported to the Committee by somebody else whose name has not been disclosed in Annex. 3 to show as to who is the author of this report but that report definitely conflicts with the report of the Head Examiner. In the notice Annex.1, it has not been alleged that the petitioner has used this material in answering questions No. 1b and 4b. Rather the notice, given to him, claims that this material could have been used by him in answering question No. 4b and it related to the subject. Thus, the findings of the Committee which were based on the report of the flying squad and which are certainly in conflict with the report of the examiner, could not have been allowed from the basis for visiting the petitioner with such an extreme penalty of cancellation of his examination of B.A. Final for the year 1989 and the autonomous Authorities which are expected to safeguard the career of the students, cannot play in such a perfunctory manner. Petitioner has categorically stated that he did not attempt question No. 4b and it is not the report of the examiner that the suspected material has been used by him in answering question No. lb whereas Annex. 3 shows that these two slips have been used by the petitioner in attempting question Nos. lb and 4b whereas the examiner states that the candidate has not used the note, recovered from him but this note could have been used in answering question No. 4b and the candidate has categorically stated that he has not attempted question No. 4b and, therefore, the Committee should have carefully scrutinized the reports of the Flying Squad and of the Examiner which are contrary to each other and to have come to a categorical finding as to which one is correct. IT is, therefore, clear that the Invigilator had sent no report but the report has been sent by the Flyinquad and it has been scrutinised by the examiner and both have differed from each other whereas the categorical case of the respondents in the reply is that this note which was found on the floor which might have been picked-up by the Flying Squad or by anybody, was compared by the Invigilator with the petitioner's copy and he opined that it belongs to the petitioner. No such record of the report of the Invigilator finds mention in Annex. 3. The examiner or the Head examiner has nowhere reported that these two manuscript papers which are alleged to have belonged to the petitioner, were compared with his handwriting and found to have belonged to the petitioner. Thus, the Committee itself did not record any categorical finding. IT has not been established that he was found in possession of the paper whereas notice, issued to the petitioner, was that he has been found in possession of the paper. Nobody has been examined to established this fact. His answer book has not been seized alongwith the suspected material. He was not asked to fill up the form in Appendix 'A' as required by Regulation 73-C and no report has been made as required by Regulation 73-D. Thus, when all these regulations have not been complied-with and it has not been established that the manuscript paper which was found in two pieces, belonged to the petitioner, or was brought in the examination hall by him for use, he cannot be punished for using the unfairmeans. IT was the primary duty of the University to have established this fact and to have brought this material before the Court to show that they have compared it with the copy of the petitioner and it was found on comparison to have belonged to him. Thus, there is a total non-compliance of Regulation 73B and 73D. Even, there is a noncompliance of Regulation 73-H which provides that the Committee shall permit the parties to file declaration in support of their case and allow inspection of the documents filed by either party. Neither any declaration was filed by the University nor any documents whereby it is alleged that the guilt of the petitioner has been established, were shown to the petitioner for inspection. Rather Annex. 3 does not show that the suspected material was compared by the Invigilator with his handwriting. IT only suggests that the flying squad had no right to compare the notes, recovered, with the answer-book of the candidate. The categorical report of the flying squad is that these manuscript papers have been used in answering questions No. lb and 4b. The petitioner has categorically stated that he did not attempt question No. 4b and, therefore, the suspected material has not been used in answering question No. 4b and the examiner says that this material could have been used in answering question No. 4b. IT is not the report of the examiner that the suspected material could be used in answering question No. 1-b and 4 b and when this is the stand taken by the petitioner, the order passed by the Syndicate cannot be sustained because firstly it is in contravention of Regulation 70-C, 70-D and 70-H and secondly it has not been established that this manuscript paper found on the floor of the S.M.K.. Examination Hall was brought into the Hall by the petitioner. The notice that has been given to him, show that he was found in possession of the material and the punishment that has been awarded to him, is for the possession of the unauthorised material whereas the respondents have failed to prove that he was found in possession of the suspected material. IT is true that Syndicate has not given a second notice to the petitioner as regards punishment as has been claimed by Mr. Jakhar, learned counsel appearing for the petitioner, on the strength of Ordinances 95 and 96 but it has only to give a notice as regards the proposed punishment and which, it has done by issuing Annex. 1 and it has only to grant an opportunity of hearing or an opportunity of leading evidence to the petitioner and that has also been done in this case and so to that extent, the contention of Mr. Jakhar that the Syndicate ought to have issued a second notice as regards the punishment, cannot be sustained. In such cases, only principles of natural justice have to be adhered to as has been held by their lordships of the Supreme Court in Board of High School and Intermediate Education, U.P. Allahabad v. Ghanshyam Das Gupta(l). Their lordships further observed that in dealing with cases of examinees using unfairmeans in examintion hall the Board or its Examination Committee acts quasi-judicially and, therefore, a duty is cast on them to act judicially and observe principles of natural justice that is that must provide an opportunity to the person proceeded against show cause and adequate opportunity of presenting his case. In this case, that has been done. My attention was drawn to a decision of this Court in Ranjeet Singh v. The University of Rajasthan (2) wherein also, the learned Judges of the Division Bench held that the University in exercising its function in relation to taking of disciplinary action against an erring examinee acts quasi-judicially and, therefore, it is under a duty to follow the principles of natural justice before taking ultimate action against the candidate. The principles of natural justice require that the candidate must be given an opportunity of presenting his case before that organ of the University, viz., the Syndicate which awards the punishment. The University can act according to its usual rules of business and those rules must conform to the principles of judicial procedure. In this case, Annex. 1 a show cause notice informing the candidate of his alleged guilt, was given and he was asked to show cause and to file his written submissions and he was also given an opportunity of personal hearing and, therefore the principles of natural justice stand complied-with in this case. IT is true that this Court usually does not interfere with the decisions of the autonomous bodies as has been laid down by their lordships of the Supreme Court in Vice Chancellor, Utkal University v. S. K. Ghosh (3) and Division Bench decision of Bombay High Court rendered in Miss Blaise Louis and others vs. The Nagpur University (4) wherein it has been held that the Court does not sit in appeal over the decision of the autonomous bodies like the University on matters in the academic field which under the Act is exclusively the field of the University and the decision is supported by the evidence. Here, it is not a case of academic decision but it is a case where erring student, alleged to have used unfair means in the examination hall, has been punished severely and the Courts are always free to examine that aspect of the matter. My attention was drawn to the S.B. decision of this Court in Narendra Gupta vs. University of Raj-asthan(5) wherein the learned Single Judge of this Court held that too technical view of the ordinances cannot be taken. Even if the material found, relates to the syllabus of that paper but if that has not been used in answering the question then the petitioner cannot be punished. I am doubtful whether I can go so far but here I have to accept this writ petition on this ground that in this case, Regulations 73-C and 73-D have not at all been complied with and no material has been brought on record to show that they have been complied with. Secondly, it has not been established by the respondents from any evidence how it has been concluded by them that the manuscript paper in two pieces which was picked up by the flying squad from the floor of the S.M.K. Examination Hall could be related to the petitioner. None has been examined to prove it and no report of any body has been produced before the Court to show that this fact stands proved as alleged by the respondents in their reply wherein it has been stated that the Invigilator compared them and his report was approved by the examiner and the Head examiner as also by the Examination Superintendent. That material has been withheld from the Court and under these circumstances, order Annex. 4 dated 31.7.89 which has been passed on a conflicting report of the Examiner and the Flying Squad as mentioned by the Examination Committee marked Annex. 3 cannot be sustained and accordingly it is set aside and quashed and it is hereby ordered that the result of the examination of the petitioner of B. A. Final for the year 1989 be declared and if he has passed, he will be entitled to prosecute his further study if he so desires, He is also entitled to recover Rs. 3000/- as costs from the respondents as his one valuble year has been lost on account of this irresponsible act or decision on the part of the Examination Committee and the Syndicate.