HC-NIC C/SCA/20327/2015 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 20327 of 2015 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== JAYMIN RAJENDRA BRAHMBHATT....Petitioner(s) Versus GUJARAT NATIONAL LAW UNIVERSITY & 5....Respondent(s) ========================================================== Appearance: G H VIRK, ADVOCATE for the Petitioner(s) No. 1 MS DHARMISHTA RAVAL, ADVOCATE for the Respondent(s) No. 1 - 6 ========================================================== CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 04/05/2016 CAV JUDGMENT 1. This writ petition has been preferred by a student pursuing legal education in the Respondent No. 1 – Gujarat National Law University (“GNLU”). The Respondent No. 2 – Shri Bimal Patel, is Page 1 of 46 Page 1 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT the Director and Vice Chancellor of GNLU. The Respondent Nos. 3 and 4 were the coram of the “Exam Inquiry Committee” that adjudicated the alleged malpractice of the Petitioner. The Respondent No. 5 was the invigilating faculty during the examination in question. The Respondent No. 6 is another faculty member involved in the present matter. I have heard learned counsel Mr. Gursharan H. Virk for the Petitioner and Ms. Dharmishtha N. Raval for the respondents. 2. Brief facts of the present matter are that the writ Petitioner – student, presently in his third year of a five year integrated LL.B. program, has challenged an e-mail/order dated 03.12.2015 addressed by GNLU on instructions and approval of the Respondent No. 2 – i.e Mr. Bimal N. Patel, who is the Director of GNLU. The said impugned e-mail/order dated 03.12.2015 (at Annexure-D, page 106 of the Memo of Writ Petition) reads as under: “From: GNLU Examination Date: 3 December 2015 at 5:07:15 PM IST To: brahmbhattjaymin33@yahoo.com Subject: Examination malpractice Dear Jaymin (Registration No. 13A031) You are hereby informed that the Examination Inquiry Committee has given the following recommendation (copied below) which has been approved by the Director, with regard to the malpractice reported on 2nd Nov. 2015 during the End Semester Examination (Repeat) of the subject Quantitative Techniques (semester III) : Recommendation of the Examination inquiry Committee: On the basis of exam regulation 44 (a) and 44(a) (iv), the punitive action recommended is “Cancellation of the end-term examination of that particular subject of the candidate” that means the candidate’s end-semester examination held on 2nd November 2015 in the subject of ‘Quantitative Techniques’ of semester III(Repeat) stands Page 2 of 46 Page 2 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT cancelled. Following this, your exam of Quantitative Techniques held on 2nd Nov. 2015 stands cancelled. Examination and Evaluation Management Division Gujarat National Law University” (Emphasis supplied.) 3. An interesting series of events and occurrences have culminated into the issuance of the aforesaid impugned e-mail dated 03.12.2015 and resultant filing of the present writ petition by the Petitioner-student. 4. The fact of the present petition is that on 02.11.2015, from 1.30 pm to 4.30 pm, the Petitioner took the examination for the subject of “Quantitative Techniques”. The invigilating faculty during the said examination was the Respondent No. 5 – one Ms. Richa Sharma. It is further the say of the Petitioner in paragraph nos. 4.5 to 4.11 of his writ petition that at around 4.25 pm, barely 5 minutes before the completion of the examination, the Respondent No. 5 suddenly bolted from across the examination hall and snatched the answer sheet of the Petitioner, alleging that the Petitioner was “…hiding something …”. This Court will refrain from going in greater detail into the facts of the case so as to preserve and protect the modesty and reputation of all involved. Thereafter the Respondent No. 5 sought to physically frisk the Petitioner and persisted in the said demand. However, the Petitioner objected to being physically frisked by the Respondent No.5 – who was a member of the opposite gender in the interest of modesty. Hence, the Respondent No. 5 contacted the Respondent No.6 – one Mr. Avinash Bhagi, to frisk the Petitioner. Upon the arrival of the Respondent No. 6 in the Examination Hall, the Petitioner, requested the Respondent No. 6 to frisk him so that he could be cleared of the allegations that had been so vocally made against him by the Respondent No. 5. However, the Respondent No. 6 did not frisk the Petitioner and instead escorted the Petitioner to the Respondent No. 2 – Director, Mr. Bimal Patel. Page 3 of 46 Page 3 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT 5. Further, the case of the Petitioner is that upon leaving the examination hall with the Respondent Nos. 5 and 6, the Petitioner took his bag placed outside the examination hall and took his phone out of the bag to contact his father. At this juncture, the Respondent No.6, in unparliamentarily language, threated the Petitioner with dire consequences if the Petitioner attempted to contact anyone. Thereafter, the Director – Mr. Patel, called the Petitioner’s parent to the university premises. The Petitioner, his father, the Director himself, and the Respondent Nos. 5 and 6, all assembled in the chamber of the Director, where, the Respondent No.5 changed her allegation to the Petitioner having utilized his cell phone to allegedly commit malpractice. It may be recalled that the original allegation of the Respondent No. 5 was that the Petitioner was “…hiding something…”. Therefore, the cell phone of the Petitioner-student came to be seized by the Respondents. The Petitioner did not raise any issue and submitted his cell phone along with requisite passwords/passcode in the custody of the Director. 6. Thereafter, on 07.11.2015, at 12.28 PM, the Petitioner received the following e-mail from the Respondents: “Dear Jaymin You are hereby informed to be present before the exam inquiry committee at 2.30 pm today in the exam department. Examination and Evaluation Management Division” 7. The Petitioner, therefore, remained present in the university premises at 2.30 pm, as had been directed by the Respondents vide their aforesaid e-mail. The events that transpired thereafter, came to be put into writing and placed on record by the Petitioner vide his e-mail dated 07.11.2015 at 5.51 pm. The contents of the said e-mail, being crucial for the adjudication of the matter at hand, were read out in totality by the advocate for the Petitioner at the time of hearing of the present petition; and are, therefore, also being reproduced herein below, in their entirety. Mr. Virk has Page 4 of 46 Page 4 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT heavily relied on this communication to argue that there was predetermination and prejudice in the adjudication process to which the Petitioner was subject. The e-mail dated 07.11.2015 at 5.51 pm, addressed by the Petitioner to the respondents read as under: “From: Jaymin Brahmbhatt Date: 7 November 2015 at 5:51:43 PM IST To: GNLU Examination , "Bimal N. Patel (GNLU)" , Vcoffice Subject: Re: examination inquiry committee Reply-To: Jaymin Brahmbhatt To, The Vice Chancellor, Shri Bimal N. Patel Ref.: Trailing e-mail dated 07.11.2015 (at 12.28 pm) received from . Dear Sir, In view of the direction issued in the trailing e-mail, mentioned herein above, I, along with my parent and representative, remained present at the office of the Examination Department at 02.20 pm. I am writing this e-mail to you in a sense of desperation in view of the circumstances which have transpired since 02.20 pm till around 05.00 pm. I was made to wait till 03.15 pm outside the Examination Committee. In the meantime, I observed that the members of the “Exam Inquiry Committee” (the terminology used in the trailing e-mail) were sitting inside the room titled “Examination Committee Meeting Room”. During the 45 minutes that I was made to wait, Ms. Richa Sharma (purported complainant in my Page 5 of 46 Page 5 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT case, and invigilator during my exam) went inside the Meeting Room and apparently briefed one of the members of the “Exam Inquiry Committee” – i.e. Ms. Pratima Dube, in my absence as also, very shockingly, in the absence of the entire coram of the Inquiry Committee. I was shocked to see that my answer-sheet as also my cellphone were being examined by being taken out of an unsealed envelop in an absolutely casual manner by Ms. Dube as also Ms. Richa Sharma. Thereafter, Ms. Richa Sharma left the Meeting Room. This act on part of the Examination Committee, of inviting the purported complainant to secretively discuss my matter in my absence is an absolute violation of my rights and the Exam Inquiry Committee and its proceedings are liable to be quashed and set aside on this ground alone. Now, at this stage, at around 3.20 pm, I was called inside the Meeting Room. Along with me, my authorized representative/advocate also entered the room but, in an absolutely rude and unparliamentarily manner, informed me that only I would be permitted to remain present in the room and that no other person would be allowed to remain present. When my advocate politely requested Ms. Udapudi for the reason for taking such an unreasonable stand, she, in a very casual manner stated that “…the Director has constituted this committee and you better go to the Director and procure written permission from him if you wish to remain present during the proceedings…”. Thereafter, so as to strike a conciliatory note and not agitate the Committee members, my advocate agreed to the unreasonable request of the Committee but requested that a copy of the finding or report of the Committee be provided to him before I sign the same. The Committee members refused this request as well. At this stage, they, in a highly derogatory tone stated that if their wishes were not met, they would record that I had refused to cooperate with the Committee and that they would give their findings ex parte. Therefore, left with no option in view of the unreasonable stand taken by the Committee, I entered the Meeting Room alone while my father and my advocate waited outside. Page 6 of 46 Page 6 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT At this stage it is pertinent to note that I was and have not been informed as to under which provision, this purported “Exam Inquiry Committee” has been constituted. The procedure or conduct of the said purported Committee has not been brought to my notice and it appears that the said Committee was constituted with the sole intention to harass me. I reserve my right, without prejudice to the present communication, to challenge the said Committee, its constitution, procedure (if any), and manner of conduct of its proceedings. Now, after I sat down alone before the Committee members, they informed me that they would not hear me. They stated that if I so desired, I could write down my rendition of facts. In view thereof, I agreed to their unreasonable directive but requested that I be provided with a copy of my statement. They denied the said request, for reasons not known to me. In view of the aforesaid, I have given my written statement as per the unilateral directive of the Committee members. I have not been provided with a copy of the said statement given by me. After my statement was submitted, the Committee members decided to take my cellphone, which had been in their custody since 02.11.2015 at 4.45 pm (collected from me by the Hon’ble Director in his chamber, in presence of Ms. Richa Sharma, Mr. Avinash Bhagi, Ms. Mamta Biswal and my father), and charge it. As they did not have the charger for my phone, the same was provided to them by me so as to express my bonafides and that I had nothing to hide. The Committee members charged my phone and, asked for the password for accessing the phone. I had already given the password for my phone while handing it over to the University on 02.11.2015, but, once again, so as to not create any petty issue, I gave the password to Ms. Udapudi and Ms. Dube. Page 7 of 46 Page 7 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT Thereafter, both the Committee members examined my phone to their satisfaction. They accessed my private photographs without any jurisdiction but, at the cost of my privacy, I did not object to the same so as to, once again, express my bonafides. Thereafter, to my utter shock, they called Mr. Santosh Thakur (purportedly belonging to the IT Department of the University), and informed me that they would be copying all data from my phone to their desktop-computer. I did not object to the same, however, I gave my reservation as to the legality of such an action on part of the Committee. Then, the Committee members connected my phone to their desktop-computer and, having accessed all the private data in my phone, proceeded with viewing, on full-screen and in front of a handful of administrative staff, my private photos so as to probably embarrass me. However, as had been my stand since the beginning, the Committee members did not find any incriminating evidence/photos on my phone which could prove that I had utilized it to copy during my QT (Quantitative Techniques) examination on 02.11.2015. At one stage, Ms. Udapudi excitedly exclaimed that she had “caught me” when she found that I had a photograph of certain notes of “Interpretation of Statutes” subject which was taught to me during earlier semester. However, having realized that the said photograph had nothing to do with the impugned issue, she disappointedly returned to her normal self. What becomes evident from the aforesaid narration of facts is as follows: 1. The University has, after retaining my cellphone for 5 days, and after having found nothing to corroborate their baseless allegation, called me for a hearing before a “Committee” in an absolutely cosmetic and off the cuff matter with the express intent of meeting a procedural formality. Therefore, the entire proceedings that have taken place today are absolutely predetermined and malafide. 2. The Committee members, for reasons not known to me, have engaged into a fishing/roving inquiry to find anything and Page 8 of 46 Page 8 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT everything to implicate me for any baseless allegation tendered by Ms. Richa Sharma. 3. The Committee has been constituted in an absolutely casual manner. I have not been informed as to under which provision/Rule, the said Committee has been constituted. Therefore, the constitution of the Committee is questionable. 4. The principles of natural justice have not been followed in the facts of the present case for the following reasons: a. I have not been given an opportunity of being heard; b. I have not been given an opportunity to confront my accusers/complainants; c. I have not been given an opportunity to cross examine witnesses; d. I have not been given an opportunity to be represented by adequate counsel; e. I have not been provided copies of any documents/records or my statement; and f. I have not been permitted to make oral or written submissions (except the unilaterally mandated and coerced statement that was procured from me by the Committee). Coming back to the narration of facts, once the Committee had exhaustively searched my phone and found no evidence of any malpractice, they returned my phone to me, as they could do nothing else. I, once again, requested for copies of my statement as also the report/complaint submitted by the complainant-Ms. Richa Sharma, but they denied the said request. In view thereof, I am certain that the Committee has been constituted as a mere formality. Resultantly, I can expect nothing but negativity from it, judging from the manner in which I have been treated today afternoon. I, therefore, request you to give me your final decision at the earliest; and, I further request that, in case you propose to give adverse decision against my interest, that you give me an opportunity of making written submission and confronting/cross Page 9 of 46 Page 9 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT examining the complainant(s) so that correct version of facts can be put to record. I pray for your kind, fair, positive and equitable indulgence in this matter. Thanking you. Yours faithfully, Jaymin Brahmbhatt 13 A 031” 8. The respondents never replied to the said e-mail addressed by the Petitioner, and, instead, addressed the impugned e-mailcommunication dated 03.12.2015 which has already been reproduced herein above. Even upon perusal of the Affidavit in Reply filed by the Respondents, it becomes evident that the Respondents have no answer to the aforesaid communication of the Petitioner. 9. I have heard learned advocate Mr. Gursharan H. Virk for the Petitioner. Advocate for the Petitioner has taken the court through the narration of facts, as above, more particularly the contents of the e-mail dated 07.11.2015 at 5.51 pm addressed by the Petitioner to the Respondents. 10. Advocate for the Petitioner, Mr. Virk, has thereafter taken the Court through certain provisions of the Gujarat National Law University (Academic, Examination, Moots, Internship, Hostel and Related Matters) Regulations, 2015 (hereinafter referred to as the “Rules”). The provisions of the Rules, relied on behalf of the Petitioner, are: “2 (xiv) “Examination Committee” shall mean the committee established to plan, execute and manage the examination process in accordance with these regulations. 10 (b) The Director shall constitute an Examination Page 10 of 46 Page 10 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT Committee comprising of minimum of three teachers, two from law and one from non-law area of teaching in consultation with teachers and head of departments of the University. The Examination Committee shall select a Chairperson from amongst the members. 27 (v) A student shall have to pass all the subjects to be promoted to the IV Year. No carry over is permitted to the IV year. 38 (a) Committees for various Disciplinary Measures: The University shall have the following committees to look into the matters as specified against them: (i) The Student Disciplinary Committee shall consider the report submitted by the Faculty or Warden as regards breach of proper discipline within the Academic Block, Hostel and University campus. (ii) The Student Disciplinary Committee shall consider the matters for action against the student indulging in ragging etc. (iii) The Examination Committee shall look into the report submitted by the Faculty for unfair means and malpractice detected during the examination and thereafter for taking proper disciplinary action against them. The Examination Committee shall inquire into all cases of errors, mistakes, negligence, improper conduct and malpractice of any kind reported or suspected to have taken place at any level in the conduct of the examination by papersetter, moderator, supervisor, officer or employee of the University. (b) Procedure for taking the Disciplinary Measure (i) On receipt of the report about an indiscipline, the appropriate Committee shall consider as to whether prima facie action is required to be taken against the erring student. The Page 11 of 46 Page 11 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT appropriate Committee shall issue the show cause notice to the erring student indicating alleged misconduct and/or alleged action and/or breach of discipline at the Examination Hall or Academic Block or Halls of Residence or University campus. (ii) The student(s) may be furnished with a copy of the report and the documents which are relied upon and are to be used against him and/or may direct him to take inspection of such student(s), if it is not possible to furnish a copy thereof. (iii) The show-cause notice shall also contain the proposed penalty that can be imposed against him, if the misconduct is established. (iv) The erring student shall furnish his explanation within the prescribed time and shall be given an opportunity of personal hearing before the appropriate Committee and the Committee shall on consideration of the evidence before it and after giving him reasonable opportunity to defend shall make recommendations as regards penalties to be meted out against such student. (v) The said report of the appropriate Committee containing brief reasons for arriving at the conclusion against the erring student(s), alongwith all the documents, which are part of the evidence, shall be furnished before the Executive Council for the decision on the disciplinary measure against the erring student. 44(a)(iv) ITEM: Adopting unfair means, such as possession of materials like anything written on any part of the question paper, or on clothing, or on any part of the body or carrying any object or gadget such as a compass box, a scale, tissue paper or handkerchief, etc. with depictions on it which could be used for committing a malpractice. Page 12 of 46 Page 12 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT MEASURE: Cancellation of the end-term examination of that particular subject of the candidate.” 44(c) Any disciplinary measure(s), once imposed shall be communicated in writing to the student, parents and/or guardians of the candidate and the Committee for Recruitment Affairs. A copy of all correspondence from the University to student shall be placed in the personal file of the student and the records shall be updated accordingly. (d) A Student who is subjected to the above measures shall be considered ineligible and prohibited from representing the University in any co-curricular and extracurricular activities in the following one year at least. (e) A Student who is subjected to any of the above measures shall be considered ineligible and prohibited from consideration of recruitment and internship through the University, any medal, award and financial aid from the University. (f) Notwithstanding the above measures, the Executive Council on the report of the Examination Committee may consider imposition of any other measures as it may deem appropriate. (Emphasis supplied.) 11. Mr. Virk has vehementry placed reliance on the provisions of the Rules and has submitted that: a. The “Examination Committee” (and not the “Student Disciplinary Committee” or the ad hoc “Examination Inquiry Committee”) was the nodal committee that was required to look into any malpractice during examinations. The Respondents, for reasons not evident on record, have Page 13 of 46 Page 13 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT constituted a special ad hoc “Examination Inquiry Committee” constituting the Respondent Nos. 3 and 4 so as to deprive the Petitioner of the fair procedure prescribed under the rules. The stand of the Respondents changes once again in their Affidavit-in-Reply, wherein they contend that it is the “Student Disciplinary Committee” that would look into the alleged malpractice of the Petitioner. Therefore, the Respondents, having realized that they have failed to follow their own prescribed procedure, are now concocting belated stories and imaginary procedures to harass the Petitioner. The faculty alleging malpractice (the Respondent No. 5 in the present case) was required to submit a “report” as contemplated under the Rules. In the facts of the present case, the said “report” does not exist, since it has not been made available to the Petitioner (either in the form of a hard copy or for inspection), as contemplated under the Rules. Therefore, the Respondents have no basis for the initiation of any inquiry against the Petitioner. Despite a specific provision in the Rules to this effect, the Respondents have not provided the Petitioner with a copy of the “report” of the Respondent No. 5, if any; or any material or evidence sought to be relied on against the Petitioner. Even inspection of the said crucial materials has not been provided to the Petitioner. b. The Respondents were required to issue a detailed show cause notice containing the particulars of the allegations against the Petitioner along with the penalty proposed to be imposed on him. Instead the Respondents issued a nonspeaking and summary e-mail dated 07.11.2015 (reproduced in earlier paragraphs of this judgment), whereby a period of merely two hours was given to the Petitioner to remain present during holidays in the university, and that too without any particulars or details. The Petitioner was required to be permitted to furnish his explanation with a prescribed time and was required to be given an opportunity of personal hearing before the appropriate committee, which could only make Page 14 of 46 Page 14 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT recommendations against the Petitioner. This crucial step was given a complete go-by by the Respondents who supplanted their recommendatory powers with finaldirective powers, thereby denying fair treatment and justiciable equity (under common law as also under the Rules) to the Petitioner. The Executive Council of GNLU was the final decision making body which would decide the outcome of the recommendations of the appropriate committee (i.e. the Examination Committee). Instead, the Director of GNLU has usurped the powers of the Executive Council for reasons not evident on record. c. There was no depiction evidencing commission of malpractice found on the body or person of the Petitioner, therefore, Rule 44 would not be applicable in the present case and the Petitioner could not be subjected to harsh punitive measures on the basis of wrongful application of the said Rule.Notwithstanding the powers of the Examination Committee, the Executive Council on the report of the Examination Committee could consider imposition of any other measures as it may deem appropriate. This crucial power was given to the Executive Council since the imposition of penalties under the Rules would irreversibly and prejudicially affect the career of any student of GNLU. The Director of GNLU replaced his powers for the powers of the Executive Council and thereby irretrievable affected the career of the Petitioner. 12. Following authorities have been relied on behalf of the Petitioner: 13. To put forth the settled principle of natural justice under academic jurisprudence, advocate for the Petitioner relied on “Administrative Law”, Tenth Edition, Commentary by H.W.R. Wade and C.F. Forsyth, Oxford University Press, page nos. 426 and 465: “THE RIGHT TO KNOW THE OPPOSING CASE Page 15 of 46 Page 15 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT A proper hearing must always include a ‘fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view. Lord Denning has added: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them… ACADEMIC DISCIPLINE …Students have the protection of their contracts of membership. It will be implied that in return for their fees they will be treated in accordance with the university or college rules, and natural justice will operate in the same way as with members of a trade union or association…” 14. A pointed contention taken on behalf of the Petitioner is that there is evident bias in the minds of the Respondents against the Petitioner. Therefore, the Petitioner could never have expected fair treatment at the hands of the Respondents. Mr. Virk has argued that the Respondents conducted a fanciful inquiry with a predetermined state of mind, and to put this contention into force, relied on the decision of the Hon’ble Supreme Court of India in the case of A.K. Kraipark & Ors. v. Union of India & Ors., (1969) 2 SCC 262: “13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the Page 16 of 46 Page 16 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasijudicial power…. 19. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alterant partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural Page 17 of 46 Page 17 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and Ors. [1969]1SCR317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the Constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.” 15. Next, another decision of the Supreme Court, in the case of Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant & Ors., (2001) 1 SCC 182 has been relied on behalf of the Petitioner: “10. The word 'Bias' in popular English parlance stands included within the attributes and broader purview of the word 'malice', which in common acceptation mean and Page 18 of 46 Page 18 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT imply 'spite' or 'ill- will' (Stroud's Judicial Dictionary (5th Ed.) Volume 3) and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record so come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice. 11. While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal enquires, intention, as distinguished from motive is the all-important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse (see in this context Jones Bros. (Hunstanton) v. Steven 1955 (1) Q.B. 275….” 16. Narrowing down on his argument of bias to the extent of perversity in academic/student matters, Mr. Virk has relied on the decision of this Court in the case of Bhupendra Singhal v. P.R. Mehta & Ors., AIR 1990 GUJ 48, wherein this Court observed as under: “2. Petitioner, an engineering student, studying in third year Mechanical Engineering, is rusticated with immediate effect by the Principal, by order dated March 27, 1989 from Sardar Vallabhbhai Regional College of Engineering and Technology, Surat, for the period of three years and also dismissed as the General Secretary of the Students 'Council by the President, Students' Council, by order of the same date, for having been found involved in the incident of causing hurt, instigating the students to cause hurt to the Municipal Corporator, creating tension in the College and behaving rudely with some faculty members and not pacifying the students and controlling the situation as a leader of the students community and failing in his responsibility. 4. The Petitioner has challenged the orders rusticating him from College and dismissal as the General Secretary, Page 19 of 46 Page 19 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT mainly on the ground that the Petitioner was not afforded opportunity of being heard and the order is passed behind his back and even the statement of the Petitioner was not recorded by the Inquiry Committee or by any authority of the College and, therefore the action is violative of principles of natural justice and fair play and is arbitrary, unjust and mala fide. It is also contended that the criminal case was already filed against him and, therefore, the disciplinary action should not have been taken against the Petitioner as that would prejudice the case of the Petitioner and such an action is violative of Arts. 14 19 and 21 of the Constitution of India. The Report by the Inquiry Committee was also not furnished to the Petitioner and even after the final punishment order, no such report is given to the Petitioner. According to the Petitioner, there is no sufficient evidence to implicate the Petitioner for any such act and the impugned order of penalty is based on no legal evidence and, therefore, the finding is perverse and the penalty order is null and void. One of the main grievances of the Petitioner is that before imposing the penalty, no show cause notice was served nor any imputations of charges were given or served to the Petitioner to which the Petitioner could have effectively answered and consequently, no reasonable opportunity is given to the Petitioner to meet with the alleged charges and, therefore, the impugned order deserves to be quashed. Grievance is also made that the penalty of rustication for three years is disproportionate and harsh and that the order suffers from bias. The penalty order is challenged as it cannot be considered to be a speaking order. The Petitioner has tried to support his contention by his affidavits, the Affidavit- in rejoinder and producing certain documents referred to above. 6. The main contention of the Petitioner is that the inquiry was held in his absence and, therefore, the entire inquiry is vitiated as being in violation of Page 20 of 46 Page 20 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT principles of natural justice…. 9. The point requiring consideration is as to whether the sufficient show cause notice containing the charges and the imputations of allegations against the Petitioner, or even the summary of the charges, is required to be served. As discussed above, notice served was only to the effect that the Petitioner had to remain present on March 27, 1989 at 3.10 p.m. in the Conference Room of the College before the Committee of the College Hostel Wardens in connection with the incident that took place at night on March 19, 1989. By the notice the Petitioner was not given any intimation that the inquiry committee had submitted the findings and the findings were against the Petitioner. It was also not stated as to what were the charges or the imputations of allegations for which the Petitioner had to remain present before the Disciplinary Committee. At least the notice in the form of show cause notice containing the summary of the findings should have been served to the Petitioner so that the Petitioner could have prepared himself to defend the allegations against him and remained present before the disciplinary committee. In absence of any such show cause notice it cannot be said that the principles of natural justice are observed and not violated. It is true that there are no statutory provisions like the provision under Art. 311, Constitution of India, before amendment, for the service of second notice for showing cause for not imposing particular penalty, but merely because there is no statutory provision either under the South Gujarat University Act or under any rules or regulations framed under the Act, that by itself is not sufficient to hold that the delinquent should not be even informed of the allegations against him or the findings of the inquiry held against him. The decision by the Disciplinary Committee, therefore, is vitiated for this Page 21 of 46 Page 21 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT reason. 24. None of the judgments referred by Mr. Shelat learned Advocate for the respondents, lays down the broad principle of law that mere service of notice without any show cause does not offend the principles of natural justice and that only fair play would suffice the requirement before the punishment of rustication is imposed. 26. From the above discussion, it should be held that the Principal and the Disciplinary Committee of Sardar Vallabhbhai Regional College of Engineering and Technology, Surat, while considering the disciplinary action of rustication against the student is a quasi-judicial authority and the principles of natural justice should be observed before imposing the penalty. Compliance of the principles of natural justice in such a case required the service of show cause notice containing the details of substance of the allegations and the findings of the Inquiry Committee informing the delinquent student of the allegations and the findings against the student so as to enable to meet the charges and afford sufficient opportunity to show cause. The opportunity of being heard should be afforded to the students before imposing the penalty. In the instant matter, even though both the notices are held to be served to the Petitioner, the show cause notice even indicating the allegations or the charges and even the summary of the findings of the Inquiry Committee were not served to the Petitioner and, therefore, the principles of natural justice are violated entailing the quashing of the punishment imposed on the Petitioner.” 17. Finally, Mr. Virk has relied on another decision of this Court in the case of Jeet Patel v. Gujarat Technological University & Anr., 2012 GLH (1) 226, wherein this Court, in identical facts Page 22 of 46 Page 22 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT and circumstances, observed as under: “4. The factual matrix of both the petitions is similar. For the sake of brevity, the facts, as obtaining in Special Civil Application No.13441 of 2011, are being reflected. The Petitioner in that case is a student, pursuing the course of Bachelor of Engineering (Mechanical) in the Sardar Vallabhbhai Institute of Technology (SVIT), Valsad (respondent No.2). He appeared for the 6th Semester Examination in the month of May/ June, 2011. Before the final results of the said examinations were declared, classes for the 7th Semester began on 28.06.2011, which were regularly attended by the Petitioner. On 13.07.2011, respondent No.2 -College handed over to the Petitioner, a communication addressed by the Gujarat Technological University (respondent No.1) to respondent No.2, dated 08.07.2011. By the said communication, respondent No.1 - University instructed the Principal of respondent No.2 - College to inform the Petitioner to appear before the Examination Committee of respondent No.1 - University on 20.07.2011, at 10:30 a.m., in connection with an Unfair Means Case that had purportedly been registered against him. According to the Petitioner, the said communication does not state the details of the Unfair Means Case, or ask for any explanation. However, the Petitioner appeared before the said Examination Committee at the time and date stipulated in communication dated 08.07.2011. It is the case of the Petitioner that he was informed for the first time by the Examination Committee, that he has been found guilty of indulging in unfair means and suitable punishment would be inflicted upon him. The Petitioner asserted his innocence before the Examination Committee by submitting that he has not indulged in unfair means. According to the Petitioner, the members of the Examination Committee informed him that, in the subject of Dynamics of Machinery, the answer to question No.3(a) of the Petitioner and another student, Page 23 of 46 Page 23 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT (Petitioner of Special Civil Application No.15424 of 2011) is identical, and contains the same mistakes, the Petitioner has allowed the other student to copy the answer from his answer- sheet. According to the Petitioner, the answer-sheets were not handed over to him but were only shown to him from a distance of approximately fifteen feet. The Petitioner was made to record a statement, which he did, asserting that he is innocent and has not copied from the other student, though he was sitting behind him. Ultimately, on 18.08.2011, the authorities of respondent No.2 - College handed over to the Petitioner, a copy of the impugned decision dated 27.07.2011 taken by respondent No.1 University, whereby, the Petitioner has been found guilty of indulging in unfair means. A penalty has been imposed upon the Petitioner, cancelling the results of all subjects of the current Semester examination, and debarring him from appearing in the next two summer/ winter examinations. Aggrieved by the impugned decision, the Petitioner has invoked the extra-ordinary jurisdiction of this Court. 8. It is clear from the material on record that no show cause notices have ever been issued to the Petitioners, regarding the alleged unfair means adopted by them, and neither have they, at any point of time, been asked to render their explanations, before being summoned to appear before the Examination Committee. The only communication issued by the respondent University is dated 08.07.2011. It is addressed by the Incharge Controller of Examinations of respondent No.1 - University, to the Principal of respondent No.2 -College, instructing the College to inform the Petitioners to remain present at the stipulated date and time before the Examination Committee in connection with cases of unfair means registered against them. This Page 24 of 46 Page 24 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT communication does not contain any details of the type of unfair means allegedly indulged by the Petitioners and is merely an intimation to the College, which has further informed the Petitioners. By no stretch of imagination can this communication be called a show cause notice, as it neither mentions the details of charges against the Petitioners nor calls for any sort of explanation from them. As such, it cannot be said that the Petitioners were in a position to defend themselves adequately, being unaware of the exact nature of the allegations against them. This would definitely put them at a disadvantage, insofar as their defences are concerned. The Petitioners have been straightaway summoned before the Examination Committee. The exact nature of proceedings that took place before the Committee is not on record. However, it has been asserted by the Petitioners that even their answersheets were not given to them, but were only shown to them from a distance of about fifteen feet. This allegation has not been refuted by the respondent-University in the affidavit-in-reply. There is no material on record to indicate that the Petitioners have been supplied with material in support of the allegations against them. In such a situation, there can be no adequate or effective defence on the part of the Petitioners, which would cause prejudice to them. 9. The exact nature of the charges against the Petitioners is not very clear. Nothing is stated in the impugned order regarding which of the Petitioners is alleged to have copied from the other, and which of them has permitted such copying. A perusal of the impugned order dated 27.07.2011 makes it evident that the said order is devoid of facts and shorn of reasons. It merely Page 25 of 46 Page 25 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT states that the Petitioners have been found guilty and are being punished as per Clause- 3(d) of the Circular dated 03.11.2010, entailing cancellation of results of all the subjects of the current Semester examination and debarring them to appear in the next two summer/ winter examinations. No reasons in support of the conclusions regarding the finding of guilt are stated in the said order. It, therefore, is not possible to gauge the grounds on which the Examination Committee has arrived at this finding and what the material was, on the basis of which, the decision has been taken. It is a settled position of law that unreasoned order is not sustainable in law. 10. Another noteworthy aspect of the matter is that the Petitioners have not been supplied with a copy of the Report of the Examiner, on the basis of which the Examination Committee appears to have arrived at the impugned decision. By not issuing the Petitioners a show cause notice, not supplying the Report of the Examiner and any other material against them, the Petitioners have been prejudiced. There is no material on record to indicate that the Report of the Examiner has been subjected to further scrutiny by any Body of Experts. There is also no indication that any inquiry has been conducted into the allegations against the Petitioners. This aspect would assume significance keeping in view the nature of punishment inflicted upon the Petitioners. As such, it is evident from the record that the principles of natural justice have not been followed by the respondent University. The Petitioners are none the wiser regarding the allegations against them and even at the stage of their appearance before the Examination Committee, their defences would be rendered meaningless and a mere formality. Page 26 of 46 Page 26 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT 11. For the above reasons, which emerge strongly from the material on record, this Court cannot hesitate to state that, by not issuing the Petitioners a show cause notice enumerating the charges or allegations against them, by not asking for their explanation in response to the same and, by not supplying them with the copies of the Report of the Examiner and other material against them, the principles of natural justice have been violated by the respondent No.1 - University, causing prejudice to the Petitioners. 12. It is, no doubt, true that ordinarily, the Court would not lightly interfere in decisions taken by educational institutions, in educational matters. There can be no two opinions that the standards and purity of education ought to be maintained, and with this purpose in mind, the action taken by educational institutions in cases where unfair means are alleged to have been adopted, ought to be sustained. At the same time, it cannot be denied that any action taken by educational institutions is required to conform to the settled principles of law and fair play. The said action should be free from the taint of arbitrariness, which would go to the very root of the matter. When the action taken against any student (in this case, the Petitioners) causes prejudice and entails civil consequences, it would be all the more necessary to follow the principles of natural justice. An opportunity of hearing should not merely be an empty formality, as in the present case, but should be a reasonable and adequate one, enabling the student to put up an effective defence. Not issuing a show cause notice or supplying the Report of the Examiner and other material to the Petitioners, has resulted in a situation where the hearing before the Examination Committee has been rendered a mere formality, as the opportunity of hearing granted to the Petitioners is neither reasonable, nor adequate. The Petitioners have been deprived of an adequate opportunity to defend themselves which has Page 27 of 46 Page 27 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT caused prejudice, especially in view of the severe nature of the punishment imposed upon them. 13. In Malav kumar Arunbhai Patel v. Sardar University And Others -2007 (1) GLR 413, this Court, after considering various judgments of the Supreme Court, has held as below: 22. The provisions of Section 23(xxxii) of the Act make it clear that the Syndicate was fully empowered to constitute the "Unfair Means Committee". Therefore, the ground taken by the Petitioner that the Committee, being contrary to the Ordinance of the University, had no power to inflict the punishment upon the Petitioner and that the proceedings should be declared null and void is not correct and is not accepted. 23. Any action taken by an administrative or quasi judicial authority which entails civil consequences should only be taken after complying with the principles of natural justice. Although the principles of natural justice cannot be put into a strait- jacket formula, it cannot be disputed that the doctrine of natural justice exists not only to secure justice but also to prevent the miscarriage of justice. It is true that strict rules of evidence do not apply in proceedings such as those which took place in the case of the Petitioner before the "Unfair Means Committee". However, even the requirement of preponderance of probabilities has not been adhered to since the impugned Notification dated October 4,2000 as well as the Minutes of the proceedings which led to the passing of the impugned order do not disclose the material which was available with the committee which pointed out the involvement of the Petitioner in the incident. In that view of the matter, the impugned order is also not a speaking one and does not disclose the reasons or the grounds on which the decision to permanently Page 28 of 46 Page 28 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT debar the Petitioner has been taken. In A.K.Kraipak v. Union of India, reported in MANU/SC/0427/1969 : AIR 1970 SC 150 the aim and relevance of the principles of natural justice have been clearly enunciated by the Constitution Bench of the Supreme Court in para 20 thereof, which reads as under: 20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as Page 29 of 46 Page 29 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala, Civil Appeal No. 990 of 1968, D/- 157-1968 = (MANU/SC/0368/1968 : AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.” 18. Heard learned counsel for the Respondents, Ms. Raval, who, on the other hand relied on the Affidavit in Reply dated 16.03.2016 filed by one Shri Thomas Mathew, Registrar of GNLU. She has stated that the Respondents are willing to give a fresh opportunity of hearing to the Petitioner and that the impugned communication dated 03.12.2015 had been “inadvertently” addressed. However, she has been unable to respond to or deal with any of the pointed legal contentions and factual averments made on behalf of the Petitioner. 19. Countering the contents of the Respondents’ Affidavit in Reply dated 16.03.2016, the Petitioner has preferred an Affidavit in Rejoinder on 22.03.2016. In the said Rejoinder of the Petitioner, each of the contentions of the Respondents has been dealt with in great detail. Some of the relevant portions of the Rejoinder of the Petitioner (dealing with the Reply of the Respondents) may be reproduced herein under for ready reference: “3. I state that on 02.03.2016, when the captioned matter was listed for hearing, I was personally present in Page 30 of 46 Page 30 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT the Hon’ble High Court of Gujarat when, at 5 pm, the Respondents mentioned the matter out-of-the-blue and stated that since the disciplinary inquiry/proceedings were conducted in violation of the Rules in question and since the said proceedings had been challenged by the Petitioner, the Respondents were ready and willing to give a fresh hearing to the Petitioner…. Contention of the Respondents that “disciplinary proceedings have not yet been completed” 6) In their Reply, the Respondents have contended that the captioned Petition is allegedly premature because the disciplinary proceedings have not yet been completed. The Respondents have now come up with a concocted case that impugned order dated 03.12.2015 (at pg. 106) was the outcome of an alleged “prima facie inquiry”. According to the Respondents, this prima facie inquiry is pending completion of the inquiry by the “Student Disciplinary Committee”. This argument is absolutely spurious and depictive of the oblique motives of the Respondents, guided by the Respondent No. 2 and 5, for the following reasons: a) The Rules constitute various Committees. The Student Disciplinary Committee has no jurisdiction over examination related matters. It is only the Examination Committee that take decisions in this regard; b) The Rules do not provide for any “prima facie inquiry” as is sought to be belatedly suggested by the Respondents; c) The outcome of the inquiry by the Examination Committee was required to be furnished before the Executive Council, which would take the final decision. Instead, the Respondent No. 2 – Director of GNLU usurped the powers of the Executive Council and Examination Committee and has now orchestrated a new Page 31 of 46 Page 31 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT story in the present Reply with the view to, as mere formality, express inclination to conduct de novo inquiry with a predetermined mind and then, come to the same decision that he arrived at vide the impugned order dated 03.12.2015; d) The alleged de novo inquiry before the Student Disciplinary Committee that the Respondents now propose to conduct cannot be “de novo” (as the Respondents contend), since it is admittedly based on the alleged prima facie inquiry that took place on 07.11.2015 even as per the Respondents themselves. Therefore the entire idea of “de novo inquiry” (not contemplated under the Rules) is a misnomer being utilized to mislead this Hon’ble Court. Contention of the Respondents in paragraph no. 8 of their Reply that “it was reported that the Petitioner had indulged in certain malpractice” 7) The Petitioner has taken a categorical stand in the captioned Petition that the Respondent No. 5 never submitted the mandatory “report” about the alleged indiscipline of the Petitioner, and the entire inquiry was conducted without any such “report”, merely under oral instructions of the Respondent No. 2, who is personally interested in destroying the academic career of the Petitioner. 8) This allegation of the Petitioner stands established and proved beyond doubt in view of what has been stated by the Respondents in paragraph no. 8 of their Reply. The Respondents have utilized the vague phrase “…it was reported…” since they are well aware that there never was any “report” that was submitted by the Respondent No. 5 (as contemplated under the Rules). Had there been any such report, the Respondents would Page 32 of 46 Page 32 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT definitely have produced it before the Hon’ble Court as part of their Reply since the Petitioner has made serious allegations against the Respondent No. 2, 3, 4 and 5 apropos the said “report”. 9) It is also pertinent to note that the said “report” is not some sacrosanct, confidential document; and the Rules mandate that the Petitioner is entitled to a copy of the said report along with a show cause notice as also other documents/evidence proposed to relied upon against the Petitioner. Therefore, there is no plausible reason that would have constrained the Respondents from producing the said report as part of their Reply. 10) Upon receipt of the present Rejoinder, if the Respondents do submit any such report, it is required to be disregard by this Hon’ble Court as it would obviously and evidently be a belated outcome of the contents of the present rejoinder. Any such “alleged” report, submitted after receipt of the present Rejoinder by the Respondents would obviously be fabricated at the behest of the private Respondents. Contention of the Respondents in paragraph no. 10 of the Reply that “through inadvertence, instead of informing the Petitioner about the hearing to be given before the Student Disciplinary Committee, the Examination Section wrote an e-mail on 3rd December, 2015 that examination stands cancelled” 11) The laughable contention of the Respondents in paragraph no. 10 of their Reply is that they never intended to cancel the examination of the Petitioner after the alleged “prima facie inquiry” by the Examination Committee and intended it to be subject to the decision of the Student Disciplinary Committee (which does not have any powers or jurisdiction in this regard, as stated Page 33 of 46 Page 33 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT herein above), which would, again, in turn, be subject to the decision of the Executive Council of GNLU. 12) I respectfully submit that there is absolutely no logic in the said submission of the Respondents. The impugned order dated 03.12.2015 was consciously drafted with the specific intent of summarily subjecting the Petitioner to highly punitive actions with a view to destroy the academic career of the Petitioner. The illogical contentions of the Respondents in paragraph no. 10 are afterthought and belated. The impugned order dated 03.12.2015 (at pg. 106) reads: ”Dear Jaymin… You are hereby informed that the Examination Inquiry Committee has given the following recommendation (copied below) which has been approved by the Director… Recommendation of the Examination inquiry Committee: On the basis of exam regulation 44(a) and 44(a)(iv), the punitive action recommended is “Cancellation of endterm examination of that particular subject of the candidate” that means the candidate’s end-semester examination held on 2nd November, 2015 in the subject of ‘Quantitative Techniques’ of semester III (Repeat) stands cancelled. …” (Emphasis supplied.) Contrary to the contents of the Reply of the Respondents, more particularly those stated in paragraph no. 10 of the Reply, following things become evident from the impugned order dated 03.12.2015 (reproduced herein above): (a) The said order was a conclusive order which was a result of a conclusive inquiry. Page 34 of 46 Page 34 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 (b) CAV JUDGMENT The said order was passed under the express directions and instructions of the Respondent No. 2. (c) Since the said order was a final/conclusive order, it is established beyond doubt that the inquiry by the Examination Inquiry Committee was a final inquiry and not a “prima facie inquiry” as is the belated stand of the Respondents in the paragraph under reply. (d) The Respondents never intended to refer the matter to the Student Disciplinary Committee (as is their belated case in their Reply) since they were well aware that the Rules never contemplated such referral to the Student Disciplinary Committee or encroachment by it on the jurisdiction of the Examination Committee. (e) The inquiry proceedings were highly partial and absolutely predetermined since they were not conducted by the Examination Committee (as contemplated under the Rules) but by another fly-by-night “examination inquiry committee” that was conveniently constituted by the Respondent No. 2 for the sole purpose of destroying the academic career of the Petitioner. (f) The examination inquiry committee constituted by the Respondent No. 2 had admittedly considered Rule 44 of the Rules before giving its recommendation to the Director. Therefore, the said inquiry by the examination inquiry committee was conclusive and final. However, no speaking order or reasons for the final decision were ever provided to the Petitioner. (g) The Respondent No. 2 Director admittedly and uncontestably “approved” the final recommendation of the committee he had constituted. Hence, he, in conscious breach of the Rules, never intended to submit the said “approved” final decision for consideration by Page 35 of 46 Page 35 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT the Executive Council. Contention of the Respondents in paragraph no. 14 of their Reply that Rule 38 of the Rules “… visualized…de novo inquiry…after prima facie inquiry…” 13) I respectfully submit that the contents of paragraph no. 14 are absolutely false, mala fide, and vexatious and have been averred with the express intent of reversing the clock and wriggling out of the Writ Jurisdiction of this Hon’ble Court. I respectfully pray that should the contents of the said paragraph under reply be negated, then this Hon’ble Court be please to impose exemplary cost on each of the private Respondents, more particularly the Respondent No. 2. The Respondents now propose to constitute four hurdles (alleged prima facie inquiry and subsequent final inquiry, to be subjected to the approval of the Director and then the approval of the Executive Council) that the Petitioner is expected to climb-over blindly, without any documents that allegedly form the basis of the Respondents’ predetermined state of mind. By cosmetically showing false bone fides and stating that they would give the Petitioner a fresh opportunity of hearing, the Respondent intend to do nothing but prejudice the Hon’ble Court. The outcome of the said fresh hearing will be the same as the outcome of the ‘hearing’ that the Petitioner was subject to earlier since both these hearings will be conducted under the tutelage of the Respondent No. 2. I state that being office-bearers of a national law university, the private Respondents were expected to show respect for due process and natural justice, if not respect for their own Rules. I respectfully submit that there have been innumerable cases where students who, Page 36 of 46 Page 36 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT for some or the other reason, are not complacent to the unreasonable demands of the Respondent No. 2, Respondent No. 5 as also the deponent to the Reply, are “put in line” by utilizing disciplinary mechanisms. With utmost respect to the Respondent No. 5, I state that I was sexually harassed by the Respondent No. 5, and when I agitated the said issue, I was sought to be silenced by utilization of disciplinary mechanisms. I state that I have, being fully conscious of the repercussions, made extremely precise allegations against each of the Respondents. Had any of the said allegations been false, the private Respondents would definitely have produced evidence/corroboration as part of their Reply to nullify my allegations. However, none of my extremely precise and pointed allegations have been dealt with by the Respondents. This only goes to show that the Respondents have no answer to the absolutely correct submissions made by me in the Memo of the captioned Petition. I respectfully urge the Hon’ble Court to take note of this silence (which is a sign of acceptance of the contents of the Memo of Petition) on part of each of the private Respondents, and take appropriate exemplary action against each of the private Respondents involved in the said mischief. 14) Finally, I respectfully submit that the following pertinent issues raised by me in the captioned Petition remain unanswered by the Respondents, for reasons not known to me, and for reasons not evident on record, and possibly for extraneous considerations: a) The Respondents have remained silent regarding the allegation of harassment faced by me at the behest of the Respondent No. 5. The said contention, therefore, stands proved beyond doubt. b) The Respondents have admitted that Respondent Page 37 of 46 Page 37 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT No. 4 could not have presided over the inquiry against the Petitioner. Even if the incapacity of the Respondent No. 4 is ignored, the coram of Examination Committee was not constituted in toto, and, therefore, the entire punitive proceedings initiated against me are defective. c) The Respondents have not dealt with the pointed contention of the Petitioner that the disciplinary action (contrary to the Rules) has been orchestrated by the Respondent No. 2 to silence the Petitioner. The Respondent No. 2 Director has, therefore, taken personal interest in the present matter, for reasons not evident on record. d) The Respondents have remained silent in relation to my specific contention that they have not complied with the substantive and procedural requirements prescribed under the Rules. e) The Respondents have admitted that qua the inquiry against the Petitioner, the deciding authority and the hearing/inquiry authority were never the same. Therefore, the predetermined mindset of the Respondent No. 2 was superimposed over the entire adjudication process since the very beginning. 15) I expressly deny that I expressed any regret before the Respondent No. 2, as has been vaguely averred in paragraph no. 8 of the Reply. Since I had not committed any offence, the question of expressing regret does not arise. 16) I expressly deny the contents of paragraph no. 11 of the Reply. However, out of respect for the concerned female faculty member, I would not like to agitate this issue unnecessarily. 17) Apropos the contents of paragraph no. 14 of the Page 38 of 46 Page 38 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT Reply, I respectfully submit that the requirement of permitting an inadequately equipped student to be represented by counsel/advocate/helper is not a right that the Rules of the University can take away, much less confer, on the Petitioner. The said right has its roots in equity, which any academic institution, more particularly the Respondent No. 1 University – imparting legal education, was required to follow. I had anticipated absolutely insensitive and ridiculous treatment at the hands of the Respondent No. 2, 3, 4, 5 and 6, and had, therefore, opted to be accompanied by an advocate for the inquiry. The contents of my e-mail dated 07.11.2015 (at pg. 99) would go to show that my apprehensions in this regard were not unfounded. 18) I, therefore, respectfully pray and submit that I have been singled out and victimized by the private Respondents for extraneous considerations. The Respondents have barred me from pursuing my legal education and from being promoted to the Fourth Academic Year (Seventh Semester). This highly punitive action is capable of destroying my career. Even as on date, I am not aware of the reasons (and the Respondents have produced no reasons as part of their Reply) for which I have been subjected to such highly punitive actions. I state that the Respondents consciously sat tight over the captioned Petition and did not file their Reply till 17.03.2016 so as to ensure that I would be disabled from being promoted to the Fourth Academic Year. I respectfully state and submit that I have emotionally and mentally traumatized by the private Respondents for reasons not evident on record and I pray that exemplary cost is required to be imposed on the Respondents for harassing me, defaming me and jeopardizing my career for extraneous considerations. Page 39 of 46 Page 39 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT …” 20. This court has considered the arguments tendered by the Petitioner and the Respondents. All the pleadings on record, more particularly the contents of the Affidavit in Reply of the Respondents and the Affidavit in Rejoinder of the Petitioner have been considered. Aforementioned authorities and commentary cited by the advocate for the Petitioner has been considered. Having considered all the relevant aspects of the matter, as reproduced herein above, it becomes evident that the private Respondents, more particularly the Respondent Nos. 2, 3 and 4, went to great lengths to ensure that that Petitioner is cornered and victimised, and that the Petitioner does not receive the just treatment prescribed under the Rules. The reason for the said victimisation of the Petitioner at the hands of the Respondents is not evident on record. Right from the day when the Petitioner appeared for the examination in question, he appears to have been specifically selected for punitive treatment. The Respondents did not find any incriminating evidence on the body or person of the Petitioner. No averments, written or oral, were made by the Respondents during the hearing and adjudication of the present petition, to suggest otherwise. In fact, the Respondents have remained silent on all the detailed factual averments and legal contentions raised by the Petitioner. Next, instead on giving the Petitioner a reasonable opportunity to submit his case, contest the evidence against him (if any), and verify the “report” of the Respondent No. 5 (if any), the Petitioner was haphazardly asked to remain present on 07.11.2016 at 2.30 pm by an e-mail addressed by the Respondents at 12.28pm. The reason for such callousness at the hands of a prestigious National Law School is not known. 21. The deplorable treatment meted out to the Petitioner during his interrogation by the ad hoc “Exam Inquiry Committee” is on record in view of the Petitioner’s detailed e-mail dated 07.11.2015 (at Annexure C, page 99 of the Memo of Petition). The Respondents have not responded to the said e-mail of the Petitioner. When the contents of the said e-mail are perused, it becomes evident that the Respondent Nos. 3 and 4 had been instructed by the Page 40 of 46 Page 40 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT Respondent No. 2 to conduct an inquiry for the sake of meeting a procedural formality. The Respondents had already decided to destroy the Petitioner’s career even before the inquiry could have commenced. The inquiry conducted by the Respondent Nos. 3 and 4 at the behest of the Respondent No. 2 can, at best, be compared to the interrogation of criminals. Students in prestigious universities are not expected to be treated in this manner. Even the impugned order dated 03.12.2015 is replete with prejudice. The said summary and non-speaking order merely communicated the fact that the Petitioner had been subject to penalties under Rule 44(a)(iv) as per the recommendation of the “Examination Inquiry Committee” approved by the Director. The Petitioner was never informed as to what were the contents of the “report” of the Respondent No. 5 – invigilator. In fact, the Reply of the Respondents suggests that the said “report” does not exist at all, as is the contention of the Petitioner. Additionally, the Petitioner was never given an opportunity of being heard, nor was he permitted to inspect any material or evidence that was proposed to be used against him. In fact, on 07.11.2015 itself, the Respondents had, after thorough technical scrutiny of the cell phone of the Petitioner at the hands of the IT Executive of GNLU, returned the cell phone to the Petitioner without any allegation. Therefore, even if all the other illegalities committed by the Respondents are ignored for the sake of argument; even then, on merit and factual analysis – the Petitioner did not commit any illegality. The conspicuous silence of the Respondents, in their pleadings as also during oral arguments, is suggestive of the fact that the Respondents cannot escape the illegalities committed by them. The self-explanatory contents of the Rejoinder of the Petitioner (reproduced herein above) nullifies each of the belated contentions of the Respondents. I have also observed that though notice was served upon the Respondents on 12.12.2015, the Respondents waited for a period of over four months before they filed their Affidavit in Reply on 16.03.2016. Mr. Virk has argued that the Respondents have consciously delayed the adjudication of the present matter so that ongoing academic year (third year) would conclude and the Petitioner’s career would be affected irreversibly since, the most punitive outcome of the impugned Page 41 of 46 Page 41 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT order dated 03.12.2015 would be that the Petitioner would be debarred from attending classes in the subsequent year (fourth year), as per Rule 27(v) of the Rules. 22. It appears that the Affidavit in Reply of the Respondents is also silent on this aspect. Even during course of hearing of the present petition, the learned advocate for the Respondents was unable to establish that the Petitioner was involved in any malpractice. To the pointed averments made by the learned advocate for the Petitioner during hearing of this petition, evasive and slippery replies were offered by the Respondents’ advocate. The only request of the Respondents which, therefore, remains to be considered is as to whether the Petitioner can be subject to a fresh re-inquiry at the hands of the Respondents as has been requested by them? I am not inclined to entertain this extremely belated and highly prejudicial request of the Respondents. By making such a request, the Respondents have indirectly admitted that their impugned inquiry procedure (in dereliction of their own Rules) was illegal and, resultantly, the contentions raised by the Petitioner would appear to be true in their entirety. Secondly, the Respondents had willingly returned the cell phone of the Petitioner after they found no evidence to suggest that the Petitioner was involved in any malpractice. The Respondents have not produced any evidence to suggest that the cell phone of the Petitioner contained any questionable content. Also, the Respondents appear to have cosmetically made rule Regulation 44 of the Rules applicable to the present case without any basis or evidence. Finally, it would be highly prejudicial to the interest of the Petitioner-student if, after facing almost four months of agony, he is, once again, subjected to a new inquiry for no apparent or plausible reason. The actions of the Respondents are suggestive of grave prejudice against the Petitioner and this prejudice is likely to permeate the re-inquiry that is being asked for by the Respondents so innocently and innocuously. 23. This court is, therefore, of the view that the Respondents acts, commissions and omissions since the 02.11.2015 till date, including the highly self-contradictory and demeaning nature of the Reply of the Registrar of GNLU, evidences the prejudicial and Page 42 of 46 Page 42 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT biased mindset of the Respondents. The Respondents are in breach of their own Rules, more particularly the Rule 38. The Reply of the Respondents further cements the contention of the Petitioner that the Respondents adjudicative process has been affected by a pre-determined mindset and mala fides. 24. The identical facts and resultant decisions of this Court in the cases of Bhupendra Shingal (supra) and Jeet Patel (supra) also come to the rescue of the Petitioner. Relevant portions of these decisions have been reproduced herein above. In Bhupendra Shingal, a student had been rusticated with immediate effect. The student contended that the inquiry was held in his absence and, therefore, the entire inquiry was vitiated as being violative of principles of natural justice. This Court, in that matter, had considered whether a sufficient show cause notice containing the charges and imputations of allegations against the Petitioner, or even the summary of charges, was required to be served. Identical to the present case, even in that matter, the student was simply asked to remain present on a specific date and time and no other details were provided to the student. This Court held that the said act of the institution was in violation of the settled principles of natural justice since while considering disciplinary actions, the university was a quasi-judicial authority and the principles of natural justice were required to be observed. In Jeet Patel, this Court was faced with a situation where students were not in a position to defend themselves against the allegations made by the university, being unaware of the exact nature of the allegations against them. This Court held that by not issuing show cause notice, not supplying the Report of the Examiner and any other material against the students, the students had been prejudiced. 25. I have found that said decisions cited by Mr. Virk squarely apply to the facts of the present case. 26. In the present case, the ramifications of the highly punitive action taken by and at the behest of the Respondent No. 2 – Director of GNLU was highly punitive and would have long-term negative implications on the career of the Petitioner-student. The said Page 43 of 46 Page 43 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT decision would have resulted into the wastage of one academic year for the Petitioner as he would not have been permitted to be promoted to and attend the fourth academic year, as has been discussed in detail in foregoing paragraphs of this judgment. Additionally, highly punitive ramifications at Regulation 44(c), 44(d) and 44(e) would be attracted. It is for this reason that the Executive Council, comprising highly distinguished legal luminaries, was required to be the final decision making authority in all disciplinary matters. However, as has been rightly submitted on behalf of the Petitioner, for reasons not evident on record, the Respondent No. 2 decided to bestow upon himself the powers of the Executive Council and approved the impugned decision himself instead of placing it before the Executive Council, as has been mandated under the Rules. Additionally, it was the Examination Committee that was required to adjudicate the Petitioner’s case. However, an ad hoc “Exam Inquiry Committee” was constituted contrary to the Rules especially for the case of the Petitioner. So as to not open a pandora’s box, I would constrain myself from further discuss another pertinent contention of the Petitioner that one of the members of the “Exam Inquiry Committee”, i.e. one Ms. Shobhalata Udapudi was also a member of the Executive Council. It, therefore, becomes absolutely evident that, in an absolutely haphazard manner, the Petitioner was made the subject of an unjust experiment initiated by the predetermined and biased mindset of the private Respondent Nos. 2 to 6. 27. It is true that this Court would generally not interfere in academic matters of universities, unless, of course, exceptional circumstances persuaded the conscience of this Court to undo grave and irreparable injustice. Even in such matters, this Court would be slow in undoing a university’s decision unless, as is the fact in the present case, the decision of the university is wholly baseless, arbitrary, malafide, unreasonable, illegal and in stark contradiction to the principles of natural justice. The facts of the present case coupled with the law laid down by the Hon’ble Supreme Court as also this Court, has constrained this Court to interfere in the present matter. All universities are cradles of the Page 44 of 46 Page 44 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT nation’s future. They are, therefore, required to conduct all acts in a highly bona fide and exemplary manner. This responsibility increases exponentially when the university is a premier National Law School imparting legal education to the nation’s future lawyers. How is a student of law expected to be a patron of justice when his university is the epitome of injustice? 28. On consideration of arguments made by both the learned counsels for the parties and perusal of the reply filed by the Respondents and judgments cited by learned counsel for the Petitioner, for above reasons it appears that for reasons not evident on record, the Respondent Nos. 2 to 6 bypassed the Rules and the Respondent No. 2 decided to supplant himself for the authority of the Executive Council. Therefore, it appears that the apprehension of the Petitioner that the private Respondents have made the Respondent No. 1 University into an oligarchy where all decisions are taken, reviewed and implemented by a select few, and students are casually denied basic human rights and natural justice. 29. The key question involved in the present petition, as per the perusal of the matter and in view of the observations made by the Hon’ble Apex Court, and facts involved in the present case as evident from the contentions of the e-mail of the Petitioner and the conduct of the respondents, I have found that, the impugned order dated 03.12.2015 which is against the principles of natural justice and prima facie it can be considered that decision of the Respondents is mala fide. Hence said order dated 03.012.2015 is required to be quashed and set aside and the present writ petition is also required to be allowed in totality. Hence, petition is allowed and the Respondent No. 1 University is directed to expeditiously evaluate and declare the result of the Petitioner for the examination of “Quantitative Techniques” that was taken by the Petitioner on 02.11.2015, but no later than 2 week from the date of the receipt of the present order. 30. Direct Service is permitted. Notice is hereby discharged. Page 45 of 46 Page 45 of 46 Created On Thu May 05 15:51:03 IST 2016 HC-NIC C/SCA/20327/2015 CAV JUDGMENT (Z.K.SAIYED, J.) KKS After pronouncement of the judgment Ms.Raval, learned advocate for the respondents prays for stay of the judgment for four weeks. The request is rejected. (Z.K.SAIYED, J.) Page 46 of 46 Page 46 of 46 Created On Thu May 05 15:51:03 IST 2016