JUDGMENT R.R.K. Trivedi, J.
1. This bunch of special appeals arises out of a common Judgment of learned single Judge dated 1.8.1997 by which 21 writ petitions were allowed. These writ petitions were filed challenging the orders of the University awarding punishment for adopting unfair means during examinations. The orders have been quashed and respondents-appellants have been directed to declare the results of the petitioners within one month. The University has also been saddled to pay Rs. 1,500 as costs in each case. As the questions of law and fact involved in these appeals are common, they can be conveniently decided by a common judgment against which parties have no objection. The leading case shall be Special Appeal No. 779 of 1997.
2. Out of 21 writ petitions.
counter-affidavit was filed by the University only in one writ petition, namely. Civil Misc. Writ Petition No. 14007 of 1997 filed by Shailendra Kumar Srlvastava from which the leading case, i.e., Special Appeal No. 779 of 1997 arises. As clear from the judgment of the learned single Judge. the- writ petitions have been allowed mainly on questions of law, hence counter-affidavits were not filed in other writ petitions. In the circumstances, in our opinion, it is not necessary to mention the facts of each case in this judgment. The original record was produced by the University before the learned single Judge and before us as well.
3. We have heard Shri Ashok Bhushan. learned counsel appearing for the appellants and Shri J. N. Verma and Shri K. K. Roy for the respondents.
4. Learned counsel for the appellants has submitted that the view taken by the learned single Judge that provision for service of notice within seven days of the incident, on the candidate, in Ordinance No. 1.3 of the Ordinances on the use of unfair means and causing disturbance in examination, is mandatory is not correct. Learned counsel has also submitted that the word "shall" used in Ordinance No. 1.3 could not be taken to be mandatory as it shall defeat the very purpose for which the Ordinances were framed, i.e., to prevent the use of unfair means in the examinations held by the University. Learned counsel has further submitted that learned single Judge placed reliance on the cases. Amit Kumar Singh v. Registrar, (1992) 1 UPLBEC 722 : Sundaram Srivastava v. Allahabad University, 1990 (2) UPLBEC 941 and Jyoti Prakash Pandey v. University of Allahabad. 1996 AWC 1094, whereas a contrary view was expressed by another learned single Judge in case of Mahendra Tripathi v. Allahabad University and others, AIR 1997 All 143. and in these circumstances, the appropriate course for the learned single Judge was to refer the matter for decision to a larger bench. The learned counsel in support of his submission has placed reliance on the judgments of Hon'ble Supreme Court in cases : Mahendra Slngh and others v. International Airport Authority of India and others, (1997) 9 SCC 132 and Man Sukh Lal Vitthal Das Chauhan v. State of Gujarat. JT 1997 (7) SC 695.
5. The second submission of the learned counsel for the appellants is that the Ordinances no where require to record reasons for awarding punishment. There is also no executive Instructions to this effect. In the circumstances, the orders passed could not be held to be illegal merely on the ground that reasons were not recorded by the Committee for awarding punishment. The learned counsel has submitted that the view taken by the learned single Judge is not in consonance with the view already taken by Hon'ble Supreme Court and this Court. Reliance has been placed by the learned counsel on the following cases :
State Bank of Pat tat a and others v. S. K. Sharma, JT 1996 (3) SC 722 ; Union of India and others v. E. G. Nambudiri. AIR 1991 SC 1216 ; M/s. Woolcombers of India Ltd. v. Woolcombers Workers' Union and another. AIR 1973 SC 2758 and Htmanshu Singh v. University of Allahabad. 1985 ALJ 700.
6. Learned counsel has further submitted that the order impugned in the writ petition should not be quashed merely on the basis of the violation of the principles of natural justice, namely, not recording reasons in the order but the Court should also look into whether any prejudice has been caused to the petitioner which could be ascertained from the record. Reliance has been placed on the case : Board of High School and intermediate Education, U. P., Allahabad and another v. Bagleshwar Prnsad and another, AIR 1966 SC 875.
7. Learned counsel for the appellants has also submitted that the costs of Rs. 1,500 awarded against the University in each case is exhorbltant and unjustified in the facts and circumstances of the case. It has also been submitted that the orders passed by the University have been quashed on technical ground but there is no finding that the proceedings Initiated against the petitioners were mala fide or arbitrary in any way. It has been requested that the University may be exempted from payment of the costs.
8. Shri J, N. Verma, learned counsel appearing for the respondents, submitted that in some cases notice was not given to the petitioners at all and the orders were passed without giving any opportunity of hearing. Learned counsel has submitted that it is settled law that if order has been passed in violation of the principles of natural Justice, it is sufficient for quashing the order and no further prejudice is required to be seen. It is submitted that provisions contained in Ordinance 1.3 are mandatory as they have been framed to ensure compliance of the principles of natural justice before passing an adverse order against the student affecting his academic career. It is further submitted that the object of providing a period of seven days for service of notice is to ensure expeditious disposal of the cases of use of unfair means as any delay may seriously prejudice the academic progress of the candidate. It has further been submitted that preservation of evidence in such matters for long time is not possible, hence a provision has been made for a short period of notice. Considering the aforesaid objects, the provision has rightly been held to be mandatory. Learned counsel has further submitted that recording of reasons in the order awarding punishment is necessary as in absence of reasons it cannot be ascertained as to how the authority concerned functioned and whether the necessary material was taken into consideration or not. Reliance has been placed on the case of Vasudev Vishioanath Saraf v. New Education Institute and others, AIR 1986 SC 2105.
9. We have thoroughly considered the submissions of the learned counsel for the parties and have also perused the record. Much has been argued with regard to the nature of the provisions contained in Ordinance No. 1.3. For convenience. the aforesaid Ordinance is being reproduced below :
"1.3 A candidate found using unfair means in an examination shall be served with a notice therefor in the examination hall itself and, if he refuses to accept or avoids or escapes personal receipt of such notices, such notice shall be sent to him by Registered Post within seven days of the Incident. The candidate shall be required to submit his reply to the notice within 10 days of the issue of such notice. If no reply is received within this period, it would be presumed that the candidate has nothing to state in his defence."
10. Hon'ble Supreme Court in the case of Mohan Singh v. International Airport Authority of India (supra), after considering various Judgments of the Court, concluded in para 26 as under :
"26. Thus, this Court, keeping in Mew the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word 'shall' though prima facie gives impression of being of mandatory character. It requires to be considered in the light of the Intention of the Legislature by carefully attending to the scope of the statute. Us nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the Court is required to keep in view the Impact on the profession, necessity of its compliance ; whether the statute, if it is avoided, provides for any contingency for non-compliance ;
if the word 'shall' is construed as having mandatory character, the mischief that would ensue by such construction ; whether the public convenience would be subserved or public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to Innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same. It would not mean that the language used would be Ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice."
11. From the aforesaid conclusion. It is clear that the use of word "shall" in the provision does not necessarily make it mandatory. For ascertaining its true character, it has to be considered in the light of the Intention of the Legislature and the consequences which shall flow should also be taken into consideration. The learned single Judge agreeing with the views expressed by the learned single Judges in earlier judgments, has held that the provisions of Ordinance No. 1.3 are mandatory and non-compliance of the same shall vitiate the order, it cannot be denied that object and purpose behind making the aforesaid Ordinances is to prevent use of unfair means and disturbances during examinations. It cannot also be denied that the menace of using unfair means during examinations has seriously prejudiced the educational standard of the country. Thus, if the provision of service of notice within seven days from the date of Incident is held to be mandatory, it shall defeat the very purpose and object for which the Ordinances have been framed. To conduct examinations in the present days is a difficult task and generally it is found beyond control of the staff available within the campus. Invariably, help of the administrative authorities is sought. Thus, in the prevailing circumstances. If an action against use of unfair means is held to be not maintainable if notice is not given within seven days, the mischief shall prevail and the performance of Innocent students shall be prejudiced. Thus, a serious Inconvenience will be created to the general public without furthering the object of the provisions. On the other hand. If the provision is held to be directory. It shall supress the mischief and promote public justice. In the context of the scheme and object of the Ordinances, the harmonious interpretation would be that giving of notice within seven days cannot be held to be mandatory and it may be given within reasonable time which may not cause any prejudice to the candidate. The observations of Hon'ble Supreme Court in case of Controller of Examinations, etc., etc. v. G. S. Sunder and another. JT 1992 (4) SC 204. regarding the menace of using unfair means in the examinations are very relevant in considering this question which are being reproduced below :
".....In the present system of education, the system of examinations is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by Court in every case may lead to unhappy results making the system of examination a farce. For instance, we cannot but strongly condemn copying in the examination which has grown into canker of mass copying. Such unhealthy practices which are like poisonous weeds in the field of education must be rooted out in order that the innocent and the intelligent students are not affected. We feel that :
"the hour has come when we must clear the educational fields from poison and from fear ;
12. From a close look of Ordinance No. 1.3. It appears that the intention of the framers was to prefer a personal service of notice on the candidate and if that is not possible, for the reasons stated there, it may be served by Registered Post. It cannot be said that if an attempt to serve notice personally in the examination hall has not been made, a notice by Registered Post cannot be served. The provision provides only for alternative modes and personal service in the examination hall is not a condition precedent. Sometimes the use of unfair means is noticed by the examiner on perusal of the answer books and in such circumstances, personal service of notice in the examination hall may not be possible in any manner but at the same time, the action against use of unfair means may be necessary. In such cases, notice may be served directly by Registered Post. Thus, the provisions as contained in Ordinance No. 1.3 generally are mandatory as they provide for notice to the candidate before taking any action. However, part of the provisions contained in it are directory also, as indicated above. In our opinion, the contrary view taken by the learned single Judge in the impugned Judgment and also in case of Amit Kumar Singh, Sundaram Srivastava and Jyoti Prakash Pandey (supra), are not correct and they are hereby overruled. Under Ordinance No. 1.3. service of notice as provided therein fs necessary and mandatory but it should be within reasonable time which may not result in any kind of prejudice to the candidate concerned. Whether a prejudice has been caused to the candidate by service of notice beyond the period of seven days has to be considered in the facts and circumstances of each case and no uniform rule can be laid down to meet the situations of all the cases. In such circumstances, the Order of punishment for use of unfair means cannot be quashed merely on the ground that the notice was served beyond the period of seven days or on the ground that notice was served by registered post without any attempt for a personal service in the examination hall. Both these provisions are directory in nature.
13. The second ground on which the Impugned orders awarding punishment for using unfair means have been quashed is that reasons have not been recorded for awarding punishment. The submission of the learned counsel for the appellant is that the statute does not require recording of reasons, hence the order could not be quashed on this ground.
14. Learned counsel for the respondent, on the other hand, submitted that recording of reasons is necessary to avoid arbitrariness and it is also necessary for compliance of the principles of natural justice.
15. It is true that Ordinances contained in Chapter 28 do not specifically provide for recording of reasons. But sometimes the obligation to record reasons in the order may be implied in the provisions. For this purpose, it is necessary to peruse the provisions contained in Ordinance Nos. 1.5 and 1.6 which are being reproduced below :
"1.5. The Committee referred to in Ordinance 1.4. above shall consider :
(a) the report, if any. about the candidate having been found in possession of unauthorised material ;
(b) the reply of the candidate, if any, to the notice ;
(c) the report of the examiner concerned, if any, regarding the transcription or non-
transcription of the unauthorised material of which the candidate was found in possession :
(d) any other report of intimidation, threat, manhandling or violence received in connection with the conduct of the examination by any person on duty of the University ; and
(e) any other material.
1.6. The Committee referred to in Ordinance No. 1.4 shall aiuard the following punishment after placing on record that it has examined all the documents referred to in Ordinance No. 1.5 and that if has satisfied itself regarding the facts of the matter.
(a) (i) * * * * *
(ii) * * * * *
(iii) * * * * *
16. From a conjoint reading of Ordinance Nos. 1.5 and 1.6, in our opinion, it is clear that the Committee referred to in Ordinance 1.5 has to record reasons. In Ordinance No. 1.6, the words "after placing on record that it has examined all the documents referred to in Ordinance No. 1.5 and that it has satisfied itself regarding the facts of the matter" are indicative of the fact that Committee has to record reasons for the aforesaid two aspects that it examined all the documents and it has satisfied itself. Thus, from the plain language used, it is clear that Committee has to record reasons but at the same time not like a Court but only like an administrative authority discharging the quasi-judicial functions. The Committee has to express its mind about the explanation tendered and other considerations provided in Ordinance No. 1.5.
17. A Division Bench of this Court of which one of us (Justice R. R. K. Trivedi) was a member, in case of Rajesh Mfsra v. University of Allahabad and others. (1998) 3 UPLBEC 1756, has taken similar view in para 13 of the Judgment, relevant portion whereof is being reproduced below :
"13. .....In our considered view, the Committee appointed under Ordinance No. 1.4. miserably failed to decide the matter in terms of the requirements provided in Ordinance Nos. 1.5 and 1.6. There is no discussion in the proceedings about the reply of the petitioner, the allegations against him and the reports of the examiner and invigilator. Had there been actual application of mind of the members of the Committee, it would not have been difficult to notice the aforesaid apparent discrepancies pointed out by us. The decision of the Committee tn printed form could not be substitute of a decision taken on application of mind to the material on record. In our opinion, the Committee decided the case in gross violation of the principles of natural justice and such decision cannot be sustained. At this place, we would like to recommend to the University not to permit use of such printed form for giving the decision of the Committee. The Committee of five members appointed under Ordinance No. 1.4, should be asked to consider the cases of unfair means in terms of Ordinance Nos. 1.5 and 1.6 and record its minutes in handwriting by Convenor/Chairman of the Committee or any one of the members. By aforesaid observation, we do not mean that the Committee should write a judgment like a civil court. We only want to convey that Committee must discharge its legal obligation imposed by Ordinance Nos. 1.5 and 1.6 by writing in short analytical discussion of the charge, the reply of candidate and about the material available on record and then to record reasons in short to form its opinion for awarding the punishment. Such matters are very delicate and casual handling like in the present case should be avoided."
18. In our opinion, the view taken by the learned single Judge on this aspect of the matter is justified and does not call for any Interference. As we have already held that tn Ordinance No. 1.6 there is an implied obligation cast on the Committee to record reasons, it is not necessary to refer to the various decisions cited by learned counsel for the parties.
19. After answering the aforesaid two legal questions, we have examined the records pertaining to the candidates. The position in the records in case of Shallendra Kumar Srivastava, Special Appeal No. 779 of 1997, is that all the columns of the prescribed form are blank except the column meant for the examiner who has mentioned his opinion by words 'no' and 'yes'. Thereafter there is order. There is nothing to indicate that the explanation of the petitioner was considered. In the circumstances, the conclusion of the learned single Judge in this case was Justified. The position in the records of the other candidates is almost similar to the case of Shailendra Kumar Srivastava, hence the conclusion of the learned single Judge in their cases was also justified.
20. Coming to the question of costs, we feel persuaded by the submission made by the learned counsel for the appellants that ordinarily costs should not be imposed on educational institutions. It is also correct that there is no finding that there was any mala fide or arbitrariness on the part of any authority of the University. In the circumstances, in our opinion, in the interest of justice the University may be exempted from payment of the costs.
21. For the reasons Indicated above, we do not find any good ground for interference in the final order of the learned single Judge (so far as the conclusions arrived at are concerned). However, the order is set aside so far as the costs is concerned.
22. The appeals are accordingly disposed of on the above terms. There will be no order as to costs.