1. Rule.
Mr. Jadeja, learned advocate waives service of notice of Rule on behalf of respondent Nos. 1 and 2. By consent, Rule is fixed forthwith. Heard learned advocate for the parties. The petitioner, a student pursuing his education for B.A., LL.B. (Hons.) in Five Year Integrated Programme in respondent no.1 University, has approached this Court invoking Articles 14, 19 and 226 of Constitution of India with following prayers.
(A) To issue a writ of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 26.10.2012 passed by the In-charge Director, Institute of Law, Nirma University bearing no.ILNU/Disc.Rules/Penalty Order/WUK/12/1556 detaining petitioner for two semesters (for all courses in the Semester-VII & VIII) in the current academic year (2012-13) with immediate effect as the same is illegal, arbitrary and violative of fundamental rights of the petitioner and for the reasons stated in the Memo of Petition and in the interest of justice.
(B) To issue a writ of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction directing the Govt. of Gujarat to amend the Nirma Science and Technology University Act, 2003 and Regulations so as to cast obligation on the University to get prior approval of the Government before framing regulations so that government can have control over the University when University acts in excess of jurisdiction for the reasons stated in the Memo of Petition and in the interest of justice;
(C) Pending admission, hearing and final disposal of this petition, to stay the execution, operation and implementation of the order dated 26/10/2012 passed by the In-charge Director, Institute of Law, Nirma University bearing no.ILNU/Disc.Rules/Penalty Order/WUK/12/1556 detaining petitioner for two semesters (for all courses in the Semester-VII & VIII) in the current academic year (2012-13) with immediate effect and permit the petitioner to appear in the end semester examination for the 7th semester starting from 20/11/2012 subject to the final outcome of the petition for the reasons stated in the Memo of Petition and in the interest of justice;
(D) The Hon ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.
(E) To award the cost of this petition.
Thus, by way of this petition, the petitioner has challenged the legality and validity of the order passed by the concerned authority, of University on 26th October, 2012, detaining the present petitioner for a period of two semesters for all courses in semester nos.7 and 8 in the current academic year 2012-2013 with immediate effect on account of his conduct in the institute.
2. The facts leading to filing this petition, as could be culled-out from the memo of the petition, deserves to be set-out as under.
2.1. The petitioner after passing his 10+2 examination from the Central Board in March-2009 appeared in competitive test held by respondent no.1 for admission in Five Years Integrated Programme of B.A., LL.B. (Hons.).,The petitioner was admitted in the course and he was pursuing his studies for degree of B.A., LL.B. (Hons.) in Five Year Integrated Programme. The petitioner could successfully complete six semesters. The petitioner was therefore, admitted and he was pursuing his studies in 7th semester in the academic year, which is consisting of two semesters viz. 7th and 8th.
The respondent no.1 is a University established under the Act of the State called The Nirma University of Science and Technology, Act 2003 . The University is functioning as non-affiliated University. The Five Years Law Integrated Course leading to Degree in humanities as well as law was introduced after obtaining approval from Bar Council of India and the State as well as Central Government. Under Section-32 of the Act, the University is empowered to frame regulations for its business and affairs. The regulations are styled as Regulation for Maintenance of Discipline of the Students of Nirma University on the Campus (herein after referred to as regulations for sake of brevity). The petitioner has averred in memo of the petition in paragraph-16, an incident which occurred in rainy season interalia alleging that the students named therein of the same batch came in vehicle and drove it in such a fashion that the muddy water was sprayed on the petitioner and other students, which led to altercation amongst them. The petitioner has further averred in paragraph-17 of the memo of the petition that after the incident was over, in the evening those students picked up quarreling outside the campus, that led to filing of complaints by both the sides in respect of each other s behaviour. One more incident occurred afterwards which resulted into bitter altercation and exchanges of allegations between two groups compelling them to run a signature campaign against each other. Both the sides filed complainants against each other. The concerned authority referred the matter to Institute Level Fact Finding Committee, which submitted its report, which was referred to the University Level Committee, which also gave its opinion based whereupon the competent authority imposed punishment of detaining petitioner for two semesters of the current academic year, as a result whereof the petitioner would not be permitted to attend the classes and take exam at the end of each of semester viz. 7th and 8th and after the period of punishment is over, petitioner has to register himself as a fresh student in 7th semester. This order of punishment dated 26th October, 2012, is subject matter of challenge before this Court as stated hereinabove.
3. Learned advocate for the petitioner contended that the incident complained of, involved allegations in respect of two groups and members of both the groups were suspended. The Fact Finding Committee recommended suspension of both the group students and gave its report for further consideration. The Fact Finding Committee as well as, the University Level Committee did not comply with the principle of natural justice nor did the authority while imposing the punishment adhered to the principle of natural justice and therefore, the inquiry as well as, the order of punishment were contrary to the principle of law, and hence they are required to be quashed and set aside.
4. Learned advocate for the petitioner invited this Court s attention to the order of suspension, the report of the Fact Finding Committee and contended that the so-called allegations against the petitioner did not merit severe punishment of detention of student like petitioner for two semesters.
5. Learned advocate for the petitioner has relied upon the decision of Delhi High Court in case of Ms. Flora Gupta V/s. Jawahar Lal Nehru University & Ors in W.P.(C) No.5725/2008 decided on 6 th July, 2012 and contended that the inquiry and/or disciplinary proceedings if not conforming to the principle of natural justice, then they deserve to be quashed and set aside.
Learned advocate for the petitioner relying upon one more judgment on the same line in case of Dr.Pushkar Saxena V/s. Govt. of NCT of Delhi & Ors., in W.P.(C) No.7592/2011 of Delhi High Court, decided on 16/10/2012, vehemently submitted that the punishment as well as inquiry not being in conformity with the principle of natural justice and as the petitioner was not given any document, the same is required to be quashed and set aside.
6. Learned advocate for the petitioner invited this Court s attention to the statement recorded from the faculty members and indicated that tenor of the statement as well as the timings of its recording clearly indicate that the statements were obtained with a view to bring about desired result. Learned advocate for the petitioner took this Court through all the statements in detail and submitted that the tenor of the statement would itself indicate as to how and in what manner the entire disciplinary proceedings were conducted. The statements were recorded in absence of the petitioner and copies of the statements were not supplied to the petitioner at any point of time. These statements and records were required to be obtained by the petitioner only under the Right to Information Act that too after punishment was imposed. In other words, prior to imposition of punishment, those statements were never supplied to the petitioner and therefore, those statements, which have gone on record in forming the opinion for guilt on the part of the petitioner has effect of vitiating the proceedings as well as, the order of punishment and therefore, the inquiry proceedings as well as punishment deserves to be quashed and set aside.
7. Counsel appearing for the respondent-University submitted that the Court under Article-226 of the Constitution of India need not substitute its own assessment or evaluation of either the misconduct or the conduct of the student as the scope of such inquiry and/or examination in this proceeding under Article 226 being limited. The misconduct alleged would indicate that the punishment imposed is absolutely just and proper and it does not call for any interference.
8. Learned counsel for the respondent-University further contended that in an academic matter when the academician have come to a conclusion or decision , then such conclusion or decision need not be interfered with, under Article-226 of Constitution of India.
9. Learned counsel for the respondent-University further contended that the impugned action of punishment was required to be taken, as the student was found guilty of committing misconduct, whereby the discipline of the entire University was seriously jeopardized. In such a situation, when punishment was imposed after affording due opportunities, the Court under Article-226 of Constitution of India would not interfere and set aside the order impugned.
10. Learned counsel for the respondent-University further contended that the principle of natural justice and its invocation has undergone a substantial change and the law of principle of natural justice as on date requires existence of actual prejudice on account of so-called breach of principle of natural justice for securing any relief on that count.
11. All and every breach of the principle of natural justice in itself would not be sufficient to quash and set aside the resultant order of punishment. The petitioner, who is complaining the breach of principle of natural justice, will have to make-out a case that on account of breach of principle of natural justice, the petitioner is seriously prejudiced. Without establishing the effect of prejudice occurring on account of breach of principle of natural justice, the petitioner would not succeed in the petition.
12. Learned counsel for the respondent-University submitted that the petitioner has though contended that the documents referred to in the order of punishment were not supplied, in fact, mere reading of the order indicates that the documents cannot be said to have not been supplied and/or non-supply thereof would have caused any prejudice. The show cause notice referred to in the order is of course supplied, whereas other documents even if not supplied, in absence of any demand thereof, would give no cause of concern and/or complaint to the petitioner alleging breach of principle of natural justice.
13. The petitioner has never demanded at any point of time the documents, which are claimed to be not supplied and in absence of any demand by the petitioner for those documents, petitioner cannot be now permitted to agitate before this Court that on account of non-supply of documents, there is a breach of principle of natural justice.
14. Learned counsel for the respondent-University further contended that the contention of the petitioner of non-supply of documents even assuming to be correct without conceding, then also on, in absence of any prejudice on that count, would not entitle the petitioner to succeed in the petition. The petitioner has not shown any prejudice caused to him on account of non-supply of documents nor has the petitioner indicated as to how and in what manner was he handicapped in defending his case, therefore, the order impugned cannot be interfered with under Article-226 of the Constitution of India.
15. Learned counsel for the respondent-University in support of the aforesaid submission placed heavy reliance upon the decisions of the Apex Court in case of [1] Union of India and others V/s. Satrughan Pal, reported in (2010) 5 Supreme Court Cases 349 and [2] Vice-Chancellor, Guru Ghasidas University V/s. Craig Macleod, reported in (2012) 11 Supreme Court Cases 275.
16. Learned counsel for the respondent-University invited this Court s attention to the regulations and submitted that the entire procedure in the instant case is scrupulously followed and therefore, when petitioner failed in establishing any breach of the regulation, then this Court would not interfere with the order of punishment in exercise of powers under Article-226 of Constitution of India.
17. This Court has heard the learned advocate for the parties as stated hereinabove and perused the petition and annexure as well as counter affidavits and its annexure. Before adverting to the rival contention of the parties counsels, it would be most appropriate to set-out herein below few indisputable aspects emerging there from viz.
(a) The petitioner is a student pursuing his degree course leading to B.A. LL.B. in a Five Years Integrated Programme in respondent no.1 University.
(b) Petitioner on the date of incident was studying in 7th semester in academic year 2012-2013.
(c) As averments in para-16 on page-9 of the petition go to show that one incident in respect of spreading of muddy water collected on the ground on account of unruly driving of motor vehicle by the students with whom some altercation later on occurred. This incident is said to have happened in the month of July. This incident had its aftermath as could be seen from the further narration in the petition.
(d) On 7th September, 2012, two complaints came to be lodged with the in-charge Director, one by the petitioner and another by three students and both the set of complaints and supporters are termed as rival groups. The tenors of the complaints indicate that there was some incident of mishandling followed by verbal altercation during day. These complaints were viewed by the in-charge Director as serious enough to invoke the disciplinary powers and therefore, the in-charge Director constituted Fact Finding Committee and referred the complaints to it, under the regulations. The fact remains to be noted that the copies of two handwritten complaints have been placed on record, the petitioner s complaint was addressed to the in-charge Director and it contains endorsement from the Director that a committee consisting of the persons named therein be constituted to look into the matter. Another complaint is from the rival group, which is addressed to Authorities, Discipline Committee. The petitioner s complaint appears to be first in point of time as its apparent from the endorsement made thereon, as the opponent group s complaint was addressed to Discipline committee which was formed and constituted by the in-charge Director by making endorsement on the complaint of the petitioner, and the rival group s complaint is addressed to that committee as could be seen from their complaint.
(e) As could be seen from the document Annexure-I, page-57, the urgent meeting of the Disciplinary Committee was held on 15/09/2012 at 1:15 p.m. and it was decided therein that the students of both the groups should not be allowed into the University premises as it has effect of spoiling academic atmosphere. The committee s recommendation for suspension of three students was accepted and implemented by the in-charge Director as could be seen from the page-38 Annexure-B.
(f) The Fact finding Disciplinary Committee so appointed by the in-charge Director submitted its report. Unfortunately, this report is not bearing any date, therefore, hereafter it will be referred to as Fact Finding Disciplinary Committee s Report only. The relevant abstracts of Committee s report deserves to be set-out as under:-
(i) The Committee heard the students in three sittings i.e. 14th September, 2012, 15th September, 2012 and 18th September, 2012. The Committee heard both the sides and also several witnesses. The committee also took written statements from them.
(ii) ....The Committee after making inquiry could not come to the conclusion that who initiated this scuffle but it was found that the matter did not end there only and went to greater intensity as there was exchange of abusive words between these two groups of students in the wash room and outside the Institute s gate. There was groupism on both the sides and it lead to disturbance to academic environment.
Further the committee also came to know that both the groups indulged into taking signatures of the students of Semester VII in their support. The signatures were taken using various techniques including threats. The students who had signed the document for or against these complainants deposed before the Committee that they had not read the contents of the letter for which the signatures were taken.
(iii) Further on the basis the inquiry into the behaviourial aspects of wali Ullah Khan, the Committee came to know regarding the previous acts of indiscipline against faculty members as well as students (ANNEXURE- B). Wali Ullah Khan has given several undertakings in the Institute for good conduct. The Committee has found through the representation of few students that he has been continuously indulging into mischief inside and outside the class room and therefore, Wali Ullah Khan has become the issue of concern for the University.
(iv) In the past he has also been engaged in making threatening calls to Professor Purvi Pokhariyal and Mr.Anandkumar Shinde. Further during this inquiry few students viz. Kritika Kapoor, Yamini Bhagwati complained of constant harassment by Wali Ullah Khan. (Written complaint of Kritika Kapoor is attached herewith as ANNEXURE-C).
(v) Moiz Rafique, Karan Yadav and Harshrajsinh Vaghela have also indulged in the activities against the disciplinary rules of the University as they were involved in the dispute with Wali Ullah Khan inside and outside the Institute. Both the groups had alleged that they were receiving threatening calls from each other.
(vi) Therefore, the Committee feels that the students of both the groups have done acts of indiscipline involving violence in and outside the campus including instigating the violence (Regulation 3 Clause 2) and act which deteriorate the overall atmosphere in the campus and the Institute (Regulation 3 Clause 5).
The Committee also feels that the students have breached the Regulation 2 Clause 2 Sub-clause (v), (vi) and (vii) of Nirma University Act (Regulation for Maintenance of Discipline of the students of Nirma University on the Campus).
The Committee would like to bring it to the notice that inspite of suspension order given by the Director, ILNU for not entering into the Institute and University Premises, Wali Ullah Khan, Moiz Rafique and Karan Yadav have entered the University premises without prior permission of the Director, ILNU during suspension pending inquiry.
During this suspension pending inquiry, the Committee had received emails from the parents of Moiz Rafique and Wali Khan stating that the dispute between their sons has been resolved and they should be allowed to enter the University premises and the parents of the students have also assured that they will not indulge in such activities in future.
The Committee has found on the basis of the oral statement made before the Committee during inquiry that previously also both these group have indulged into various disputes for one or the other reasons and made compromises. The Committee is of the opinion that these frequent group activities have disturbed the academic atmosphere of the class and the Institute.
Therefore, the Committee recommends that this case should be referred to the University Level Disciplinary Committee for appropriate action as these group activities are spoiling the academic environment of the Institute.
Thus, the undated report of the Fact Finding Committee did not single out any of the students on his guilt in respect of the incident, rather the Committee s recommendation were in respect of students of both the group to have indulging into acts of indiscipline . In short one can say that this Fact Finding Committee did not held anyone or one side solely responsible for the incident of indiscipline for which inquiry was entrusted to this Committee. The emphasis on the part of the Committee was in respect of group activities by both the groups resulting into affecting the academic environment and the Committee recommended the case to be referred to the University Level Disciplinary Committee for appropriate action.
(g) The Fact Finding Committee s report, thus indicated that it did not single out anyone student or one group of students for committing act of indiscipline and/or guilty of misconduct. In fact, close perusal of the report, would clearly indicate that the committee was unequivocally clear qua commission of misconduct by both the groups and by both the sides. In other words, the Fact Finding Committee held members of both group equally responsible for commission of misconduct and the report rests at that stage, which has been taken into consideration by the concerned authority and as per the recommendation of the Fact Finding Committee and report and recommendations were to be forwarded to the University Level Disciplinary Committee, though there is no order placed on record which indicate that when the University Level Fact Finding Committee was referred the matter. The fact remained that the matter was so referred.
(h) On the Fact Finding Committee s report endorsement, as referred and explained by Shri Jadeja, learned counsel for the University, the Administrative Officer (University of Law) made endorsement viz. Kindly submit a note as to what future action is to be taken as per our regulation , and in-charge Director put endorsement on 21st September which is reproduced as under :-
Through : E.R.
Sir In view of Appendix A report, this case of indiscipline is referred to University with a recommendation to treat this case as a major penalty.
(i) On 24/09/2012, the Director General, Nirma University constituted a University Level Disciplinary Committee for further investigation at the University level. The note dated 22/09/2012 is placed on record, which is prepared by Administrative Officer (IL) and endorsed by in-charge Director (IL), whereon the Executive Registrar Shri Chhaya on 24/09/2012 endorsed that the Director General may constitute University Level Committee. Normally in past following committee was constituted in such cases . The University Level Discipline Committee (hereafter referred to as ULDC for brevity) was constituted by the Director General as could be seen from page 67. It was consisting of six members including I/c. Director Institute of law. The relevant extract of its report deserve to be set out as under :-
IV. After having careful consideration of all available records and deliberations, the Committee also thought to call the faculty members at the Institute who had taught the above said students during the current as well as earlier semesters and therefore, some of the faculty members of the Institute of law, (namely, Mr.Hardik Parikh, Mr.Rohit Moonka, Dr.Tarkesh Molia , Mr.Anand Shinde , Dr. KPM Malik, Dr.N.B.Singh, Dr. Madhuri Parikh, and Dr.Rishikesh Dave) have been called before the Committee and had interactions with the Committee about the overall conduct of the students (Wali Khan, Karan Yadav and Moiz Rafiqe). The Committee also obtained written statements (enclosed as Enclosure IV) from all the faculty members who have been called before the Committee. (emphasis supplied).
(j) On page 68 of the compilation, the report further reads as under:-
V. The Committee had long deliberations based on the report of the Institute level Fact Finding Committee with all the relevant supporting documents, based on the interactions with the students and their parents, based on the written statements submitted by the above students and their parents to the University Level Disciplinary Committee and also based on the interaction with the faculty members and their statements and following observations were made;
1. Eventhough the students, Karan Yadav and Moiz Rafique, have involved in the indisciplinary acts, it was emerged that except the recent indisciplinary acts, both the above students have not much involved in any kind of indisciplinary acts in the past.
In view of the above, the Committee feels that, based on the available record and evidences, the indisciplinary act between the above three students cannot be considered for major penalty. Therefore, the Committee recommends that the case of two students (Karan Yadav and Moiz Rafique) may be referred back to the Institute for minor penalty for which the Head of the Institute is empowered to take decision for imposing minor penalty.
2. However, from the report of the Institute level Committee, report of the Head of the Institution dated 21/09/2012 and the statements of faculties, it was emerged that the student Wali Ullah Khan has been involved in the indisciplinary acts not for the first time but right from the beginning of the First Semester and has been suspended from the classes several times by the faculties for continuously disturbing the classes by passing cheap comments to the faculties and fellow students etc., and, he has been given warning several times and even his parents have been called for counseling.
In view of the above, The Committee collected further information with regard to the indisciplinary behaviour of the student Wali Khan and the details (enclosed as Enclosure-V) of the indisciplinary acts/behaviour of Wali Ullah Khan through out his study at the Institute is given below :
1. Complaint received through email dated 03/02/2011 from faculty at the Institute of Law regarding life threatening calls.
2. Memo to Wali Khan dated 03/02/2011 regarding his suspension.
3. Apology letter (through email dated 18/02/2011) from Shi A.U.Khan, f/o Wali Khan regarding suspension of his son and assurance not to repeat such mistake in future.
4. Undertaking dated 20/04/2011 from Wali Khan for his misconduct during lectures.
5. Undertaking dated 02/05/2011 from Wali Khan for his misconduct during lectures.
6. Memo to Wali Khan (through email dated 16/07/2011) for absenteeism in lectures without permission.
7. Email dated 20/01/2012 from A.U.Khan, father of Wali Khan regarding suspension of Wali Khan.
8. Complaint from faculty through email dated 17/07/2012 regarding indisciplinary behaviour of Wali Khan during Lecture.
9. Report of the Inquiry Committee set up by the Director to look into the matter of indiscipline that occurred in the lecture of faculty on 17/07/2012.
10. Undertaking by Wali Khan dated 19/07/2012 regarding his conduct.
In view of the above mentioned recorded facts, based on the report of the Institute Level Fact Finding Committee with all the supporting documents, based on the feedback and written statements received from the faculty members at the Institute of Law and also based on the interaction with the student and the parent, and also looking into the past record of indisciplinary acts during the course of his (Wali Khan) study at the Institute, it was found that;
1. The student Wali Ullah Khan has breached the Regulations of Nirma University Act (Regulations for Maintenance of Discipline of the students of Nirma University on the Campus) by continuously disturbing the classes, disrespecting the faculty members, creating nuisance in the class by passing cheap comments to the faculty members and fellow students which not happening during the current semester/year but right from the beginning of the first semester/year in which Wali Ullah Khan was admitted (2009 Batch).
2. The student Wali U. Khan has been suspended from the class several times due to misconduct of disturbing the classes, passing cheap comments etc. The student has a habit of making groupism in the classes which disturbed the entire academic atmosphere.
3. There was life threatening calls from the student (Wali Khan) or from his family members to the Head of the Institution and the faculty member of the institute.
4. It was also emerged that inspite of repeated warnings regarding the indiscipline acts in the class and giving undertakings regarding misconduct during lectures, the student Wali Khan has not shown any sign of improvement in his attitude/behaviour in the class towards the faculties and fellow students.
In view of the above observations/findings, the University Level Disciplinary Committee, under the given circumstances and evidences and the records available with the Committee, found that the students Wali Ullah Khan has been involved in various kind of gross indisciplinary acts, through out the Semesters, which falls under the Regulation-3 for Major Penalty and therefore, the Committee make the following recommendations for imposing major penalty as per the Regulations of the Nirma University Act, as appropriate actions to be taken against the student Wali Ullah Khan.
The student, Wali Ullah Khan may be detained for two semesters (for all courses in the Semester-VII & VIII) in the current academic year (2012-13) with immediate effect as per the Clause (3) of the Regulation-5 of the Nirma University Act. Accordingly, the student will have to register as a fresh student in the 7th Semester in the Academic Year 2013-14. The student, Wali Khan should also be put under Conduct Probation for the remaining period of his study at the Institute i.e., till the completion of the Programme, as per the Clause (4) of the Regulation-7 of the Nirma University Act (Regulations for Maintenance of Discipline of the students of Nirma University on the Campus).
1. Shri K. K.
University Level Disciplinary Committee also deliberated upon the report and ultimately came to the conclusion in its report dated 10/10/2012, and recommended punishment to be inflicted upon the petitioner of detaining him for two semesters i.e. for semester VII and VIII in the current academic year 2012-13 with immediate effect as per Clause 3 of the Regulation 5 of the Nirma University Act, and he was required to be registered afresh. Thereafter, he was to put under Conduct Probation for the remaining period of his study at the University. It is to be noted that the Conduct Probation is nowhere define in regulation. The committee in its report dated 10/10/2012, which is produced at page no.71 of the petition, in which it was recommended that punishment of detention for semester VII and VIII for the current academic year be imposed and he should be put under Conduct Probation for the remaining period of his study at the University. This report was submitted to the Director General who endorsed the recommendation of the committee and issued show cause notice dated 13/10/2012 to the petitioner. The suspension of other two students were withdrawn, as they were not much involved in any kind of disciplinary acts in the past and they were considered for imposing minor penalty. The relevant portion of the Show Cause Notice, which is produced at page no.73 of the petition deserve to be set out as under :-
........Whereas based on the report of the Institutional Level Fact Committee with all the supporting documents, report of the Head of the Institution, interaction of the University Level Committee with the faculty members of the Institute of Law and also based on the other information collected by the University Level Committee, looking to your past record at the Institute and having careful consideration and deliberations, it was emerged that:
You have breached the Regulations of Nirma University Act (Regulations for Maintenance of Discipline of the students of Nirma University on the Campus) by continuously disturbing the classes, disrespecting the faculty members, creating nuisance in the class by passing cheap comments to the faculty members and fellow students which is not happening during the current semester/year but right from the beginning of the first semester/year.
You have been suspended from the class several times due to your misconduct of disturbing the classes, passing cheap comments etc. You have a habit of making groupism in the classes which disturbed the entire academic atmosphere.
You or your family members have made life threatening calls to the Head of the Institution and the faculty member of the Institute.........
In response to the show cause notice, petitioner has put his reply, which is reproduced at page no.74 of the petition, to the committee and have their considered final recommendation. The member secretary examined the contents of reply and made report for consideration of Director General, the final authority, for imposing punishment. The then Executive Registrar Shri Chhaya put an endorsement, which read as, As discussed we refer the reply to the committee and have their considered final recommendation . The Director General also appends his signature there. On 22/10/2012, an emergency meeting of the Committee was held and recommendations was made through its member secretary where A and B were approved and ultimately on 26/10/2012, the order came to be passed, which is produced at page no.86 of the memo of petition.
18. The aforesaid factual backdrop would unequivocally indicate that the incident of 07/09/2012 and its aftermath triggered off the entire controversy leading to lodging of written complainants by both the rival groups. The Fact Finding Committee constituted by the in-charge Director was thus assigned task of ascertaining truth and finding as to who was responsible for indiscipline or who was responsible for the event of altercation occurred on 07/09/2012. The Fact Finding Committee was thus to work for finding facts and arriving at a conclusion in respect of the incident that occurred on 07/09/2012. The undated report of the fact finding committee indicate that this committee recorded statements of witnesses, and students of both the rival groups. Now question arises as to when this committee did not hold any single student to be responsible for the incident as could be seen from its final conclusion, how far the imposition of punishment upon the petitioner only is justified. The Fact Finding Committee being the committee in the first instance entrusted with the task of going to the roots of the matter and find out the facts, it naturally undertook exercise of examining witnesses, recording the statement and hearing the complainants. The report of the committee, which is called Fact Finding Committee does disclose these aspects but, it is nowhere indicated that it was a kind of an inquiry proceedings or it had any trappings of inquiry or else there would have been a specific imputation of allegation and reasonable opportunity to the person concerned like the present petitioner and the student of the rival group though, the fact remains to be noted that the Fact Finding Committee did record statement of witnesses, as it is stated and recorded statements of student of both the groups in light of this, it is required to be noted that the Fact Finding Committee after due deliberations and probing could not arrive at a decision so as to pinpoint guilt on the part of A student. Infact, it is also required to be noted that the Fact Finding Committee was essentially require to probe into the incident that occurred on 07/09/2012 only, though at places as could be seen from the report, the inquiry committee did look into the past conduct of the students and after all these considerations, the Fact Finding Committee did not hold petitioner alone to be guilty of misconduct for the incident of 07/09/2012 and infact the Fact Finding Committee clearly held that the students of both the groups were equally responsible for the conduct and incident of 07/09/2012. Thus, the Fact Finding Committee clearly opined that in light of their observations and findings the matter be referred to the University Level Disciplinary Committee.
19. The University Level Disciplinary Committee deliberated upon the report of the fact finding committee and statements recorded from various faculty members. Learned advocate for the petitioner vehemently contended that those statements were sufficient to indicate that the statements were aimed at highlighting only the past conduct or so called misconduct on the part of the petitioner. The Court is of the view that the learned advocate for the petitioner is not incorrect in his contention that the statements recorded from the faculty members were by and large in respect of the past conduct or the faculty s opinion qua the petitioner.
20. The recording of the statement as could be seen from the statement clearly indicate that those statements cannot be said to be the statements pertaining to the incident of 07/09/2012. The statements as it is stated hereinabove are in nature of the reflection on the past conduct of the petitioner and therefore, a question arises as to what extent they could be said to be a relevant material for deciding the guilt in respect of the guilt that taken place on 07/09/2012.
21. It is also required to be noted that the petitioner had never been given copy of any statement nor was he given any opportunity prior to receiving of the notice i.e. show cause notice dated 13/10/2012, that the authorities of the University is also contemplating any action in respect of conduct before 07/09/2012. In my view, when such an exercise is undertaken, the delinquent is required to be put to notice and is required to be given an opportunity. The non-supplying of the copies of the statement and non-calling upon the petitioner to show cause in respect of past conduct prior to 07/09/2012 amounts to clear breach of principle of natural justice and there cannot be any gain said that the prejudice did not cause to the petitioner on this count. The authorities cited at bar on behalf of the University are of no avail to the University, as the facts in the instant case glaringly go to show that the facts of those cases are different than the present case and therefore, this Court did not elaborately delve upon the authorities cited at by the University.
22. The aforesaid discussion leads to following inevitable conclusions, which are required to be set-out as under alongwith their reasons.
(i) The fact remains to be noted that the petitioner and three other students were required to be suspended on account of the incident that occurred on 07/09/2012. That incident is, as could be seen from the written complaint in respect of minor scuffle or pushing each other during change of the period, which had been pursued by both the sides so as to give it a shape of bitter altercation and that resulted into signature campaign by both the sides. The Court at this stage not required to opine about seriousness of otherwise the incident. However, one question does arise as to whether there was any possibility of addressing the entire issue from a different approach so as to avoid versioning of situation and bridging the gap. However, as it is stated hereinabove, that stage had gone and the committee was constituted by I/c. Director of Law Institute, which is known as Fact Finding Committee . The Fact Finding Committee was essentially therefore to ascertain the truth and arrived at conclusion as to the students responsible for the incident of 07/09/2012. It is required to be noted at this stage that the Fact Finding Committee has recorded clearly that the committee could not arrive at a conclusion qua one student or one group being responsible for the act of misconduct on 07/09/2012. Unfortunately, the committee overstepped its jurisdiction and took the past incident also in consideration. Though, the past incidents of both the groups also did not pursue the members of the committee in holding one group or the other group guilt for the misconduct as the Fact Finding Committee ultimately recorded that they are unable to came to a conclusion as to who is responsible qua the incident of 07/09/2012. The clear terms of reference to the Fact Finding Committee is not available, but one can safely conclude from the endorsement made by the I/c. Director of Law Institute on the complaint of the petitioner that the Fact Finding Committee was to look into the incident of 07/09/2012 only. Therefore, the Court is of the considered view that when the Fact Finding Committee after due deliberations and meeting and discussion with various authorities, students and parents of some of the members of the rival group came to the conclusion that both the parties are equally responsible, the matter could have been resolved at that stage. But, it did not happen and the matter went further whereunder the Director General of University had to form University Level Committee. Thus, so far as the findings of the Fact Finding Committee are concerned, they did not pointed out qua guilt of the petitioner alone. Now, Fact Finding Committee was the committee, which was entrusted with the task of finding facts and therefore, those findings could not have been brushed aside wherein, the members of rival groups were held equally responsible for the incident of 07/09/2012.
(ii) The Director General of University had appointed University Level Disciplinary Committee by constituted the persons named thereunder, wherein the I/c. Director of Law Institute is also a party. The terms of reference of this committee also having not been articulated as the order of Director General constituted the Fact Finding Committee is not clearly coming-up on record. Be that as it may. The broad reference to this Committee is also in respect of the course of further action on report of the Fact Finding Committee and therefore, the scope of the University Level Disciplinary Committee was to be understood from the material, which would indicate that it was to deliberate upon the report of the Fact Finding Committee. The University Level Disciplinary Committee, in my view, could have appreciated the findings and in case if those findings were found to be inadequate, then it could have remanded matter back to the committee calling upon them to record their clear finding, instead thereof the University Level Disciplinary Committee, as could be seen from the observation abstracted from the report hereinabove, decided to call the students, their parents and deliberated upon their statements. Unfortunately, the report is blissfully silent qua the contents of statement or committee s reaction thereto. The Committee ought to have recorded at this stage its clear finding qua either side. But, Committee did not do so. Instead thereof, as could be seen from item no.4 in the report, the committee thought to call the faculty members at the institute, who have taught the above said students during the current year as well as earlier semesters and some of the faculty members of the Institute of Law named in the paragraph were called. At this stage, question arise as to whether was there any justification for undertaking this exercise as the committee has not indicated herein as to what was the necessity of calling the faculties when no one has claimed them that they were witnesses to the incident dated 07/09/2012. It is also required to be noted at this stage that committee s task was not to probe into overall conduct of the students, as the entire incident and the exercise thereafter was based upon the incident and no students of rival groups were even ever informed that there could be an oral assessment of their conduct. The committee has opined that the three students of the rival group were said to have been involved in past in the act of indiscipline.
But, barring their recent indisciplinary acts, those students were not much involved in any kind of disciplinary acts in past and therefore, their cases were referred back to the institute for minor penalty for which the head of the institute was empowered, which ultimately, did not impose any penalty except keeping them under observation for their entire study period. Whereas, as could be seen from para-2 of page-68 in case of the petitioner, the Committee came to the conclusion that his past record was so tarnished so as to impose upon him major punishment. The details narrated in page-69 all includes past incidents and they are not having any connection with the incident for which the original committee was set-up i.e. the incident of 07/09/2012. The committee is not resting there and is going on and imposed the punishment, as could be seen from page-70. The question arises as to whether this University Level Disciplinary Committee when in terms of reference were not also articulately brought on record be said to be a committee constituted for probing into overall conduct of the students. The answer would be in negative. Assuming for the sake of examining without holding that the University Level Disciplinary Committee being a Committee appointed by Director General of University had a power to go into overall behaviour of the students, then also without there being any appropriate opportunity to the student though they were subjected to disciplinary proceedings in respect of the incident dated 07/09/2012, the University Level Disciplinary Committee would also looked into their past conduct for imposing punishment. In absence of any such opportunity and deliberations and without due notice to the delinquents, all these aspects in my view, committee overstepped its scope of examining the past conduct and recommending punishment on that basis, that amounts to affording no opportunity to the students for meting with what is being weighted with the committee. This is not only breach of principle of natural justice, but to say the least is contrary to the award principle of fair play and fairness, which is accepted of all the concerned that includes the members of committee, or academic staff of the University. The breach of principle of natural justice is only one aspect and fair treatment and fairness in proceedings is another aspect. Both these aspects are required to be borne in mind in order to avoid any inadvertent injustice or action amounting to injustice to a student.
23. In the instant case, the Court is constrained to note that the petitioner is not given due opportunities to even meet with allegations made against him. The fact finding inquiry conducted by the Fact Finding Committee in the first instance when did not attribute any specific role or guilt to the petitioner and when its report was clear that both the sides students were equally responsible for the misconduct occurred on 07/09/2012, then, if the University Level Committee wanted to have more probing then, there ought to have been specific notice to this effect to the student concerned. Assuming for the sake of examining without conceding that the Committee called students and parents, but, unfortunately in the report of the Committee nothing is mentioned as to what was the reply of the student and what was the reaction of parents, which were not found satisfactory and led Committee to invite faculty members and others for receiving information qua overall conduct of the student and overall conduct, the Court has to reiterate at the cost of repetition, was never a center theme or subject matter for which the inquiries were going on and it is also required to be noted that for the past act of misconduct or indiscipline, the incidents were required to be treated as over and reopening thereof or ruling upon those incidents for imposing fresh penalty is amounting to impose penalty twice upon the students for which he has already undergone a penalty or the case was treated to have been closed on some reprimanding etc. The University Level Discipline Committee was not come to the conclusion that the petitioner has been a student, who is not required to be retained in the University or he is required to be expelled or rusticated on account of misconduct of 07/09/2012 or past misconducts. Had it been so, perhaps there would have been some justification for Committee to fall back upon the past incidents, which were not required to be opened-up, if committee was not considering the penalty of expelling the students at all. The Court has not to adhere that even assuming for the sake of examining without holding that the committee could have imposed penalty of expulsion based upon the incident of 07/09/2012 and past incidents, then also same could not have been imposed without there being reasonable opportunity to the delinquent and without there being any opportunity, the action would have been vitiated.
24. Both the committees have time and again recorded that the faculty members were invited to opine about the conduct and written statements were collected, those statements had not been supplied to the petitioner, as could be seen from the record and those statements have infact gone into consideration of the Committee, which recommended punishment of detention of petitioner for the entire academic year. Therefore, it can be safely said that the petitioner was not given reasonable opportunity of defending his case and therefore, on that count also, the resultant notice and punishment orders are required to be quashed and set aside.
25. It is required to be noted at this stage that the principle of natural justice may not be pressed into service on account of lack of prejudice pleaded and proved as canvassed by the counsel of the University relying upon the decision of the Supreme Court. But, this Court is of the considered view that the facts and circumstances of each case would pose a question as to whether the delinquent has been dealt with justly and fairly and if the answer is in negative, the spacious plea lack of establishing of prejudice would not deter this Court from giving appropriate relief to the petitioner. In the instant case, the Court is at pain to note that the incident, which was being probed was that of 07/09/2012, the Fact Finding Committee, which was constituted by the I/c. Director Law Institute, had one faculty member, who had made serious complain in writing against the petitioner and that very complain is forming part of the material, which had gone into consideration by the Fact Finding Committee in the first instance. The page-57 of the compilation indicate that one Shri Hardik Parikh was member of the Committee and on page-60 from paragraph no.3 starting from Further clearly indicate that the Annexure-B is the document, which was pertaining to in the lecture of Mr.Hardik Parikh on 17/07/2012. It is important to note that as could be seen from Annexure-B page-62, said Mr.Hardik Parikh had complained about the behaviour of the petitioner in his lecture on 17/07/2012 and said Mr.Hardik Parikh happened to be member in Fact Finding Committee and that Fact Finding Committee, which was originally constituted for finding facts of incidents that occurred on 07/09/2012 expanded its scope and took into consideration the past incidents also as a result thereof, Annexure-B went into consideration of the Fact Finding Committee. But, even those documents also did not persuade the Committee to hold petitioner guilty for the incident of 07/09/2012. That in itself sufficient to show that the entire scope of the inquiry had gone off the tangent therefore, the resultant punishment or further inquiry also stood vitiated.
26. It is also required to be noted at this stage that there was allegations with regard to the threatening calls from petitioner s side to the I/c. Director, who herself was member of the University Level Disciplinary Committee and she participated in the entire proceedings, which finally recommended punishment of detention of petitioner for the academic year. The Court need not elaborately dwell upon the aspect of participation of Shri Hardik Parikh and the I/c. Director in two committees, for which they were appointed to act as a member. But, said factors are required to be viewed from the fact that the committee had to enlarge its scope of its own and go into the past conducts, which in my view would not be permissible. Therefore, the entire exercise is required to be viewed as unjust, improper and resultant punishment is required to be quashed and set aside.
27. The Court, at this stage, need not opine upon the efficacy of such punishment order in disciplinary action against the students which in my view amount to physically keeping student away from the course which may not have any reformation or reformative impact whatsoever, but that is not the domain of purview and purport of the discussion, suffice it to say here that it is absolutely different discretion of the University to impose punishment and when such a punishment is imposed, the same is required to be viewed from the touch stone of scope of inquiry. Therefore, the Court is of the considered view that when the in-charge member or in-charge Director was party to the Committee who recommended the punishment and when the committee was having mandate for considering the misconduct from the point of view of imposing of major penalty, then it may not be said that it was strictly in principle of fairness or principle of natural justice. The regulations clearly indicate that the bare minimum of principle of natural justice is to be followed. In the instant case, assuming for the sake of examining that the documents were relied upon, the fact remains to be noted that those documents are not supplied. In the instant case, on the part of the respondent University and the ratio laid down, there cannot be disputed by anyone but in the instant case it is required to be noted that the first committee which was entrusted with the task of fact finding had not discriminated or rather had not attached any greater role to the petitioner which would have justified imposition of some penalty different than the rival group. Therefore, when the committee did not attach any greater role, it was unfortunate that the University Level Committee expanded the scope and fall back upon the past way, as it is stated hereinabove for imposition of penalty, which could not have been done without there being proper notice to the delinquent. The Court did not opine upon the procedure laid down in the regulations as there is no challenge to the regulations as such. But one need not lose sight of the fact that the entire procedure is to conduct inquiry in the back of the petitioner and/or delinquent, come to the conclusion against him and then a show cause notice being issued, which in my view is nothing but a futile exercise leading to one and the only conclusion which is already arrived.
28. Therefore, petition is required to be allowed and appropriate direction is required to be issued. It is, at this stage, required to be noted that the advocate for the respondent University has made a statement on 09/11/2012, which is set out as under :-
Learned advocate Mr.Dave with learned advocate Mr.Jadeja makes a statement that if ultimately the petitioner succeeds, supplementary examination will be taken for the petitioner. Issue notice returnable on 27/11/2012. Learned advocate Mr. Jadeja waives service of notice for respondent No.1. Reply will be filed by the respondent by 26/11/2012.
The impugned order dated 26.10.2012 issued by the Director General of University is quashed and set aside and the University is directed to act in terms of the assurance given by its counsel recorded and reproduced herein above and do the needful that may include conducting of the examination also or if otherwise possible to see to it the punishment effect is nullified and the punishment qua watching his conduct is not disturbed that shall remain as it is. It goes without saying that this order is passed on the peculiar facts of the case. The University is directed to do the needful for helping the petitioner in making up lose of studies on account of his absence during this period and see to it that petitioner may not have to suffer on account of punishment that is quashed and set aside in this petition.
Rule is made absolute to the aforesaid extent. There shall be no order as to costs.
(S.R.
BRAHMBHATT , J.) Rathod.....
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