IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION Nos.8021 – 8022/2019 (EDN – EX) BETWEEN:
1. SRI ASHVIN VISHWANATH S/O SAMPATH AGED ABOUT 20 YEARS PERMANENTLY R/AT NAIVELI TOWNSHIP, 12-B, NLC, NAIVELI, KADALUR DISTRICT-607802 2. SRI E.NOYEL PRASHANTH S/O YESURAJ M., AGED ABOUT 21 YEARS GOPALAPURAM POST VIRUDHACHALAM VILLAGE NAIVELI, KADALUR DISTRICT-607802 ... PETITIONERS [BY SRI M.SUBRAHMANYA BHAT, ADV.] AND:
1. STATE OF KARNATAKA DEPARTMENT OF TECHNICAL EDUCATION PALACE ROAD, BENGALURU-560001 REP. BY THE SECRETARY 2. THE DIRECTOR DEPARTMENT OF TECHNICAL EDUCATION PALACE ROAD, BENGALURU-560001 3. THE SECRETARY TECHNICAL EXAMINATION BOARD PALACE ROAD, BENGALURU-560001 4. THE PRINCIPAL SRI VINAYAKA POLYTECHNIC COROMANDAL POST KGF-563118 …RESPONDENTS [BY SMT.PRAMODHINI KISHAN, AGA FOR R-1 TO R-3; SRI H.N.MURALIDHAR, ADV. FOR R-4.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE CIRCULAR DATED 01.08.2018 ISSUED BY THE R-3 AND THE SMP PUNISHMENT LIST ENCLOSED TO THE SAME, COPY OF THE SAME IS PRODUCED AS ANNEXURE-D, TO THE EXTENT THE SAME RELATES TO THE PETITIONERS, AS THE SAME IS ARBITRARY, IRRATIONAL AND OPPRESSIVE BESIDES BEING VIOLATIVE OF ARTICLE 14 OF THE CONSTITUION OF INDIA.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners are claiming to be the students of respondent No.4 – Polytechnic College, pursuing Diploma Course in Mining Engineering, which is of three years’ duration. During the theory examination conducted for Maths – 2 subject, 2nd semester on 31.05.2018, examination squad consisting of Chief Superintendent of examinations, Deputy Superintendent of examinations and Chief Observer made a surprise visit and found that 11 students were alleged to have involved in examination malpractice by impersonation. They recorded their observation in a Register, along with the names of 11 students who were allegedly involved in malpractice. Subsequently, respondent No.3 issued a notice dated 06.07.2018 to the petitioners calling upon them to appear before him for an enquiry on 16.07.2018. The petitioners accordingly appeared before him and admitted their mistake. Respondent No.3 issued the impugned circular imposing the penalty of cancellation of the performance in the examination and debarring the petitioners from appearing for the next seven semesters till April/May 2022. Pursuant which, the results of the petitioners in the 4th semester was declared as “malpractice” and no marks are awarded. Being aggrieved, the petitioners are before this Court.
2. The learned counsel appearing for the petitioners would submit that the petitioners are meritorious students who have passed the first three semester in distinction and have appeared for all examination in 4th semester. The alleged malpractice against the petitioners is not proved. The farce of an enquiry was conducted by respondent No.3 on 16.07.2018 and by the impugned circular, maximum penalty of cancellation of examination and also debarring the petitioners from appearing for the next seven semesters, till April/May 2022 has been imposed contrary to the well established principles of natural justice and the regulations of the Diploma Programme as per the Curriculum prescribed. The learned counsel for the petitioners placed reliance on the judgments of the Hon’ble Apex Court in the case of Board of High School and Intermediate Education, U.P. Allahabad vs. Ghanshyam Das Gupta and others, reported in AIR 1962 SC 1110 as well as in the case of Kammalapati Brahmarao vs. Gulbarga University, Gulbarga and others reported in 1995 (3) Kar.L.J. 491.
3. The learned Additional Government Advocate appearing for the respondent Nos.1 to 3 justifying the impugned circular/order submitted that the petitioners were involved in malpractice as evident from the report of the examination/malpractice checking squad conducting the surprise visit during the examination on 31.05.2018. The photographs of the petitioners were affixed on the hall tickets of other students (juniors) appearing for Diploma Examination. Sufficient opportunity was provided to the petitioners by the Enquiry Committee constituted by respondent No.3 to have their say in the matter. The petitioners have admitted the guilt of malpractice in writing. Hence, the punishment as per the circular is issued under Section 7(1) read with Section 145 of the Karnataka Education Act, 1993, which do not warrant any interference by this Court. Learned Additional Government Advocate placed reliance on the judgment of the Hon’ble Apex Court in the case of Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh and others vs. Vaibhav Singh Chauhan reported in (2009) 1 SCC 59 as well as the order in W.P.No.23967/2018, dated 05.07.2018 (Kumari. Aishwarya. V vs. Karnataka State Law University and another).
4. I have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
5. Annexure – D is the common circular issued by respondent No.3 imposing the punishment to about 592 students depending on the nature of malpractice proved, during May/June 2018 Diploma examination. There are certain technical flaws found in the procedure of the Enquiry Committee as pointed out by the learned counsel for the petitioners inasmuch as non-mentioning the names of the petitioners in the Register at Annexure – B, where the names of 11 students who are allegedly involved in the malpractice is depicted; no signature of the Chairman/Secretary of the enquiry committee found in the student charge sheet and statement of the petitioners recorded on 17.07.2018. However, these defects are hyper technical in nature and the petitioners who have admitted their guilt of impersonation before the Enquiry Committee cannot be exonerated and left scot-free on these minor technical defects.
6. The Hon’ble Apex Court in the case of Dr.
Ambedkar Institute of Hotel Management, supra, has held thus:-
“19. Moreover, the respondent examinee has been given the minimum punishment under the Rules and no lesser punishment could have been imposed, except in exceptional circumstances. It is true that when a person confesses his guilt it is often treated as a mitigating circumstance and calls for lesser punishment if that is permissible. However, this is not an absolute rule and will not apply in all kinds of cases. In particular, as stated above, in academic matters there should be no leniency at all if our country is to progress. Apart from that, the respondent had been given the minimum punishment under Rule 9.2 and we fail to understand how a lesser punishment could have been given to him, except by exercising discretion in a particular case. This is not that kind of exceptional case, and no sympathy was called for.
22. The learned Division Bench has repeated the view of the learned Single Judge that the punishment given was disproportionate to the offence committed. We entirely disagree with that view. As already stated above, the minimum punishment was imposed on the respondent and we fail to understand what other punishment could have been given to him even when he has confessed his guilt. In our opinion, this was not a fit case for exercising discretion by waiving or reducing the minimum punishment.”
7. Similarly, in the case of Ghanshyam, supra, the Hon’ble Apex Court has observed thus:
“The statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially, will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively.”
8. In Dr. Ambedkar Institute of Hotel Management,, supra, it is held that when a person confesses his guilt it is often treated as a mitigating circumstance and calls for lesser punishment if that is permissible. However, this is not an absolute rule.
9. Keeping the judgments referred to above, this Court is of the view that the punishment given to the petitioners appears to be disproportionate to the offence committed considering the mitigating circumstances of the guilt confessed by the petitioners vis-à-vis non speaking order of imposing grave/maximum punishment. The same calls for lesser punishment. In the circumstances, this Court is of the considered opinion that the ends of justice would be met in exercising the discretion by reducing the punishment to PEC + 3 instead of PEC + 7 imposed by the respondents – authorities.
10. Accordingly, petitioners are permitted to appear for the fourth semester Diploma course in Mining Engineering during April, 2020. The respondent No.4 is permitted to admit the petitioners to the fifth semester of the said course during October-November, 2020 if they are found to be eligible upon declaration of their results of the fourth semester with the further direction to respondent Nos.2 and 3 to approve the admission of the petitioners to the fifth semester in the fourth respondent – Institute subject to eligibility. However, the examination centre of these petitioners shall be other than the fourth respondent – Institute and same shall be decided by respondent Nos.2 and 3. It is made clear that if such malpractice is recurred by the petitioners, they will be certified as ‘unfit’ students and maximum punishment shall be imposed.
With the aforesaid observations and directions the writ petitions are disposed of.
Sd/- JUDGE PMR/SAC