JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. By means of this writ petition, the petitioner has challenged the order dated 23.8.2007 passed by the respondents by which the petitioner has been punished for using of unfair means in LL.B. Second Year 4th Semester Examination, 2007 on account of which his result of fourth semester LL.B. 2nd Year examination, 2007 has been cancelled and he has been debarred from corresponding the subsequent examination of 2008 also.
3. The petitioner appeared in the Ist, 2nd and 3rd semesters of examination of LL.B. and secured 464 out of 900 marks. Thereafter he got admission in LL.B 2nd year and passed the 3rd semster's examination with good marks. While he was appearing in the 4th semester examination on 9.5.2007 pertaining to 2nd paper of Contract-II the invigilator found that the petitioner was using unfair means and on being caught it is alleged that he swallowed the material which he was using for the unfair means. The invigilators on the spot has seized his copy and a B copy was issued to him in which he answered the 4 questions. However, the petitioner has denied the allegations of using unfair means levelled against him.
4. A show cause notice dated 11.5.2007 was issued to the petitioner for using unfair means which was replied by him denying all the allegations made therein.
5. Learned Counsel for the petitioner submits that the petitioner has been framed and punished on the basis of only an assumption and there being no material on the basis of which it can be proved that the petitioner had used any unfair means in the aforesaid examination. It is also stated that that the petitioner has neither been afforded any opportunity or personal hearing nor the statements of the invigilators who are said to have caught the petitioner red handed were recorded before passing the impugned order. Therefore, the impugned order has been passed only on assumption that the petitioner has used the unfair means in the examination.
6. He also submits that the petitioner has answered the 4 questions in B copy and in case he used the unfair means he would not have been able to answer in the B copy issued by the invigilator; and that the impugned order has been passed only on the hearsay evidence is baseless order and deserves to be quashed by this Court.
7. Sri A.B.L. Gaur, learned Counsel for the University submits that the petitioner was caught red handed in the examination hall with unauthorized material by the invigilator; that he had forcefully swallowed/eaten the said unauthorized material recovered from his possession; and that there is no provision for examining any invigilators or for providing an opportunity to the candidate to cross-examine him in order to prove the case of unfair means by the University.
8. He also submits that there is evidence to the effect that the petitioner had eaten or swallowed the unauthorized material recovered from his possession and there is a specific report of the invigilator in respect of the same; that Rule 1.2(D) and (E) Chapter 28 of the Ordinance of the Universities relating to unfair means and causing disturbance in the examinations specifically mentions that if a candidate has swallowed the unauthorized material which was found in his possession, it will come within the purview of unfair means.
9. There is no evidence that any unauthorized material has been recovered nor was found in possession of the petitioner except the report of the invigilator in the class room where the petitioner was giving his examination. The petitioner claims that he was framed. Neither the invigilator nor the petitioner has been required or given any opportunity to give their oral evidence. Any report by the invigilator in this regard which is in the form of documentary evidence relied upon by the University was therefore, required to be proved by oral evidence. The law in this regard is settled that even where no provision to give an opportunity, principles of natural justice are to be observed and before visiting a person with adverse consequences, he must be given a reasonable opportunity to defend himself.
10. The provisions of Rule 1.2(D) and (E) aforesaid relating to causing disturbance in the examination refer to causing of disturbance in the whole of the examination centre like walk out or indulging in violence by mass of students and not a case where a student may be caught to be using unfair means or may have been alleged to have used unfair means as in the instant case where there is no evidence. No disturbance in the examination can be said to have been caused by the petitioner. The allegations that room invigilator and some other persons had seen the petitioner when he had been caught in possession of unauthorized material and forcefully swallowed can not be believed in the circumstances. The report of the invigilator which is the sole basis of the respondents case does not say so and statement of the room invigilator has not been recorded before awarding the punishment to the petitioner.
11. Considering the fact and circumstances of the case particularly the punishment that the petitioner has already lost one year which in the opinion of the Court is sufficient punishment. The writ petition is accordingly, allowed. The impugned order is quashed. No order as to cost.