Full Text
Judgmentdelivered on: October 12,2017
ANWESHA CHAKRABORTY
Petitioner
Through; Ms.Malavika Rajkotia, Mr.Vaibhav Vats and
Ms.Soumya Maheshwari,Advs.
Through: Ms.,Ginny J. Rautray and Ms. ,Anushka Ashok,Advs.
JUDGMENT
1. The present petition has been filed with thefollowing prayers "In view ofthe facts & circumstances stated above, it is prayed that this Hon'hie Court in public interest may be pleased to:
1. issue a M'rit ofcertiorari or any other writ, order or direction thereby quashing and setting aside the report of the High Level Enquiry Committee set up by the W.P.(C)No.7914/2016 Pa-^e 1 of35 2017:DHC:8838 respondent vide Office Order No. 203/CP/2016 dated 22.8.2016.ofthe Vice Chancellorpunishing the petitioner, and all otherproceedings consequential to and arising out ofthe report ofthe High Level Enquiry Committee ofthe respondent University;
2. award thepetitioner the costs oftheseproceedings;
3. Pass such further order or orders as this Hon'ble Court may deemfit."
2. It is the case ofthe petitioner, post the,events ofFebruary 09, 2016,the Respondent set up a 'proctorial enquiry' to enquire into the allegedly seditious slogans raised during the event. However, this enquiry was superseded by the Vice Chancellor, who set up a "High Level Enquiiy Committee".The students identified by the HLEC sent a representation to the Committee, challenging its constitution and ii' ' also requested that the findings, charges, and the purported evidence be shared with them. The HLEC failed to respond to any of these requests. As per the EILEC recommendations,the Petitioner wasfound guilty of"lending her name in the poster titled "Againstthe Brahmical collective conscience! Against the judicial killing of Afzal Guru and Maqbool Bhatt..." in the name of cultural evening thus arousing communal and caste feelings." Whereby a fine of Rs.20,000/- was imposed upon the Petitioner. In order to protest the unfair manner in which the Petitioner,.among other students, was punished by the Respondent, some students of the University went on an indefinite hunger strike, followed by a mass hunger strike by some teachers of the University.The Petitioner subsequently,approached this Courtfor W.P.(C)No.7914/2016 Page2of35 H quashing the aforementioned office order. This Court held that the Office Order will not be given effect until disposal ofthe appeal filed by the Petitioner before the Vice Chancellor. The decision ofthe Chief Proctor was upheld and the Petitioner was directed to deposit a sum of Rs.20,000/- as fine. The Petitioner has been subjected to an enquiry which was in violation of the principles of natural justice. Any administrative inquiry devoid ofthe adherence to these principles does not stand. Reference is made by Ms.Rajkotia to thejudgments ofthe Supreme Court in AK Kraipak v. Union ofIndia AIR 1970SC 150 and State of Orissa v. Dr.(Miss) Binapani Dei and Ors. AIR 1967 SC 1269.
3. It is the submission of Ms. Malavika Rajkotia, that the impugned action ofthe respondentis bad for the following reasons:- •,' f A.Violation ofPrinciples of Natural Justice The principles ofnaturaljustice have been violated atevery step ofthe enquiry undertaken by the Respondent. The enquiiy process suffered from the following lacunae: a.Biased Enquiry
4. The appellate authority is the Vice Chancellor whose approval had been granted for imposing the punishment under Office Order 150/CP/2016 dated April 25,2016. The Vice Chancellor was already prejudiced against the Petitioner and was consequently incapable of appreciating evidence from an unbiased perspective. The principle of W.P.(C)No.7914/2016 Page3of35 Nemo debet essejudex in propria causa" means that no one should be ajudge in his own cause is applicable in this case. She referred to the judgment ofthe Supreme Court in the case reported as {1978) AIR 597Maneka Gandhi v. Union ofIndia, wherein the Supreme Court has held that administrative action shall be held in a manner which is patently impartial and meetsthe requirements ofnaturaljustice. In the instantfactual matrix,it is clear thatthe appellate authority is the Vice Chancellor whose approval had been granted for imposing the punishment. As such, the Vice Chancellor cannot be the appellate authority as he was already prejudiced against the petitioner and would have been incapable of appreciating the evidence from an unbiased perspective.:;,; b. Confrontation ofEvidence
5. The Respondent failed to provide the Petitioner with copies of all statements and evidence collected by the High Level Enquiry Committee and consequently used by the Appellate Authority. The Respondent provided the Petitioner with a series of haphazardly compiled documents which were completely irrelevant and did not prove any ofthe charges made againstthe Petitioner. The Respondent has however,used these statements to level serious and false charges against the Petitioner. She referred to the judgment ofthe Supreme Court in the case reported as (1955) AIR 65 Dhakeshwari Cotton Mills V. Commissioner ofIncome Tax.In denying the Petitioner the opportunityto examine the statements and documents collected bythe HLBC,the Respondent has denied the Petitioner ofa fair opportunity W.P.(C)No.7914/2016 Page4of35 making the enquiry process arbitrary and therefore illegal. c. Cross examination
6. The Petitioner has also not been given the opportunity to cross examine persons or test the veracity of the persons examined by the committee and to lead evidence in her defence. This clearly vitiates the process adopted by the Respondent. Clause(5)ofSection 35(2)of the Statutes ofthe University clearly states that a cross examination of the accused and the complainant is to be conducted in the proceedings conducted as part of a proctorial enquiiy. This opportunity has not been given to the petitioner in the instant scenario. d. Notice
7. In addition to all ofthe lapses in the decision making process the Petitioner was not given notice about the proceedings which the Respondent undertook to punish the Petitioner. She referred to the judgment ofthe Supreme Court vn Nagarjuna Construction Company Ltd. V. GovernmentofAndhraPradesh and Ors.2008(14)SCR 859. B.Non-Application ofMind
8. The order passed is itself flav/ed in many respects. The imposition ofthe same penalty on all concerned students baning two, in spite ofhuge differences in the acts that they have been held guilty of,reflects lack ofapplication ofmind as well as a complete ignorance ofthe principles of sentencing that an administrative body entrusted with holding an enquiry must be aware of. Moreover, while the W.P.(C)No.7914/2016 - Page5of35 Appellate Authority has limited itself to the question of quantum of punishment, it has failed to provide any reasons for the punishment imposed. The fact that the orders passed against all the students were in boilerplate language furthers the factum of lack of application of mind by the Appellate Authority. She refeiTed to thejudgments in the case of Commissioner of Police v.Ghordandas 1952 SC 16 and D'Souza V. State ofBombay 1956SCR 382. C.Application ofPatently Illegal University Rules
9. The Respondent has punished the Petitioner under rules which are illegal and void. The Petitioner's alleged acts have been classified as a Categoiy II misconduct falling under clause (xxv), which reads, "Any other act which may be considered by the V.C. or any other competent authority to be an act of violation of discipline and conduct."This provision is too vague and wide.It can encompass any act ofa student, and should therefore be considered void. Clause(10) of Statute 32(5) of the Statutes of the University state that the Vice Chancellor shall make the final decisions in any enquiry and shall approve the punishment imposed by the enquiry committee. Clause (12) of Statute 32(5) of the Statutes of the University state that the Vice Chancellor shall also be the appellate authority. Under these provisions, the Vice Chancellor is required to be involved in the process ofenquiry atthe first instance.However,he is also required to sit in appeal over the same matter. This is in violation of the basic principle that a person cannot sitin appeal againsttheir own order. W.P.(C)No.7914/2016 Page6of35
10. The order passed by the HLEC and later confirmed by the Appellate Authority is not only violative ofthe Principles ofNatural Justice but also deprives the Petitioner of her right to protest an activity to raise political issues which is her constitutional right under Article 19(1) of the Constitution of India, 1950. She relied on the judgment ofthe Supreme Courtin the case ofAnita Thakur & Ors. v. Govt ofJammu and Kashmir & Ors AIR 2016SC3808, wherein it was held that the right to peacefully protest is a fundamental right guaranteed by the Constitution. The involvement ofthe Petitioner in the event held at the Sabarmati Dhaba on 9"" February 2016 was peaceful the role played by her in the said event cannot be construed to be disruptive or giving rise to caste and communal feelings. She referred to the judgment of this Court in Amritshava Kamal v. JawaharlalNehru University2007(99)DRJ528.
11. The past conduct ofthe Respondent is reflective ofthe fact that there exists a tendency in the Respondent to hold inquiries in a mala fide manner, sidelining the interests of the students. In the abovementioned case, it was found that the Respondent had not provided the Petitioner with opportunity or notice before the inquiry against the Petitioner. In support of this submission, Ms. Rajkotia referred to the judgment of Flora Gupta v. Jawaharlal Nehru University Manu/De/3042/2012. W.P.(C)No.7914/2016 Page7of35 y ii«
12. On the other hand, Ms. Ginny Routray learned counsel for the respondent would submit,the Petitioner was given ample opportunity to appear and depose before the Enquiry Committee along with the liberty to carry materials and evidences in her defense at the stage of Enquiry, Show Cause Notice and Appeal. The Petitioner failed to respond to the first notice dated February 17, 2016 wherein she was asked to appear before the Committee on February 18, 2016. Subsequently,a second notice was issued on February 18,2016 asking her to appear before the Committee on February 19, 2016. A third notice was served to the Petitioner on February 19,2016 asking her to appear before the committee on February 26, 2016, however, the Petitioner abstained herselffrom appearing before the committee and clearing her stand., \.
13. The Petitioner on March 02, 2016, addressed a letter to the HLEC wherein she stated that-' ' /have received three email communicationsfrom the High Level Enquiry Committee Nos. HLEC/JNU/2016/2086, (dated February 17, 2016), HLEC/JNU/2016/2114 (dated February 18, 2016) and HLEC/JNU/2016/2218 (dated February 19, 2016)asking me to appear on 18'^ February, 19"^ February and 26"^ February, respectively, before a High Level Enquiry Committee to explain my position on 'an incident that took place on 9"^ February, 2016 near Sabarmati and Ganga Hostel'and to bring any evidence in my defense. W.P.(C)No.7914/2016 Page8of35 u[7] In the circumstances following the 9'^ of February an extremely volatilesituation has been created both inside and outside the campus which has resulted in extreme mental andphysicalstressfor me Due to continuous media trial ofJNU and JNU students, I feel insecure because theprevailing atmosphere in JNU,the city, and indeed the country is not conductive to a proper andfair investigation, making depositions and statements withoutfear impossible Ialso note with concern that in your letter that the HLEC has only afforded me afinal chancefor deposition but no opportunity to have witness examined in my defence or to cross-examine the person(s) who have complained against me and the witnesses he/she/they have presented. This is against my naturalrightsforjustice
14. Ms.Routray would submit,the Petitioner feeling unsafe within the campus is not a viable excuse since the Respondent had taken steps to ensure the safety and tight security for all the students within the campus,in fact even morning walkers were prohibited to enter the campus. Further, the Petitioner was residing within the campus and had hand delivered all her letters/communications to the Administrative Building. It is thus, evident that the Petitioner deliberately avoided appearing before the committee and made baseless excuse not to do so. She would further submit that had the W.P.(C)No.7914/2016 Page9of35 K/^ Petitioner appeared/deposed before the committee she would have been given the opportunity to access all the documents. She stated, even though the Petitioner and other students were not provided the copies of the documents at the stage of show cause, the same were available to them to access had they appeared before the committee to depose. Thus,theythemselvesfailed to availthe opportunity provided to them. She submitted that the Petitioner would have been given an opportunity to cross examine had she come forward to record her statement.
15. A Show Cause Notice dated March 14,2016 was issued to the Petitioner which stated that-,. - - v. Asper the High LevelEnquiry Committeefindings,you(Ms. '. I ' 1 Anwesha Chakarhorty, Registration No: 34427, Enrolment No:15/62/MS/038, Year ofAdmission:2015, M.Phil./Ph.D Student, Centre for Political Studies, School of Social Sciences, JNU, New Delhi) have beenfound guilty on the following account under the Clause 3, CategoryIIofRules anddiscipline andproperconductofstudents ofJNU.
(xxv) Any other act which may be considered by the VC or any other competentauthority to be an actofviolation of discipline andconduct
16. According to Ms. Routray, the Show Cause Notice further asked the Petitioner to explain why disciplinary action should not be initiated against her for indulging in the above mentioned acts. The W.P.(C)No.7914/2016 Page10of35 Petitioner was asked to submit her reply to the ChiefProctor's Office latest by March 16,2016,17:00 hi*s later extended till March 18,2016 failing which it would be presumed that the Petitioner has nothing to say in her defense and the office would proceed further in the matter. The Petitioner responded to the Show Cause Notice on March 18, 2016 wherein she stated that she was supplied with an incomplete HLEC report. In this regard, Ms. Routray had submitted that all the students were provided with the complete report, however the recommendations for punishments were removed keeping in mind the sensitivity of the matter as a number of students were named in it. Insofar as the plea of the petitioner that the committee was nonrepresentative and biased, it was her submission that the demand for democratization from the JNUSU students Council is not based on any Rule or Statute ofthe Respondent University. Further, regarding the Petitioner's demand for documents, she reiterated that had the Petitioner appeared/deposed before the committee the same would have been available before her to examine,
17. According to Ms.Routray,at the stage ofappeal the decision is to be taken only from record before the deciding Appellate Authority. Rules under the Statute 32(5) state that the punished student has the right to appeal against the punishment and Vice Chancellor is the empowered authority to deal with Appeals. The Petitioner chose not to avail opportunities given to her, both at the stage ofenquiry, and at the stage of Show Cause Notice by wilfully not responding to the same,hence the WritPetition on this ground alone is not maintainable. W.P.(C)No.7914/2016 Page 11 of35 <0
18. She further stated, the Petitioner is a student studying in JNU and resident ofHostel in JNU. The Respondent is Jawaharlal Nehru University (JNU) established and incorporated by an Act of Parliament in the year 1996. That at 12 pm on February 09,2016 the Respondent got to know that some students were planning to host an "anti-national event" in the evening at Sabarmati Dhaba. A meeting was called in the Vice Chancellor's Office, wherein it was discovered that peiTnission was sought from the Additional Dean ofStudents by the Petitioner on the false pretext of holding a poetry reading competition at Sabarmati Dhaba. Despite the alleged "permission" immediately being withdrawn by the DOS,the Petitioner canied on with the event which led to an enormous law and order situation. On February 11, 2016 forthwith a High Level Enquiry Committee (HLEC) was constituted by the Vice-Chancellor to enquire into the.•T. '. incident that took place on February 09, 2016 in the Respondent's campus. By virtue ofSection 5(10)ofthe JNU Actread with Statute 32(1)ofthe Statutes ofthe University-';,:;, "' "The Vice Chancellor has been vested with all the powers relating to discipline and disciplinary action in relation to students." She would submit, the HLEC superseded the Proctorial Enquiry vide letter dated February 11,2016 wherein it is stated that This Committee supersedes the Proctorial Enquiry Committee and the earlier notice dated ll"^ February,2016 W.P.(C)No.7914/2016 Page 12of35 ofthe ChiefProctorstands withdrawn. Further, the HLEC followed SOP being norms in view ofthe nature and the need ofthe enquiry. The terms ofreference ofthe Enquiry entailed formulation of SOP. She stated the SOP norms are essentially analogous to the Norms recommended for a Proctorial enquiry. She also submitted, that the 3 member Committee later expanded to 5 by the Vice-Chancellor mainly consisted ofUniversity Professors and since it was an internal enquiry ofJNU,no third party was allowed to be present during hearing. Further, no one was allowed to berepresented by athird party. Theterms ofReference for the Committee was:;
(i) To enquire into the incidentandascertainsequenceofevents.
(ii) Identify any lapses thatmay have takenplace,and
19. According to her, on February 12, 2016 Office Order. No.l15/CP/2016 was passed,which stated asfollows- Based on the reportsubmitted by the ChiefSecurity Officer, video clipping ofthe events and other related documents, the High LevelEnquiry Committee, constituted by the Vice- Chancellor, JNU, is of the opinion that printa facie evidence ofthe occurrence ofthefollowing offences exists:- W.P.(C)No.7914/2016 Page 13of35 v
(i) Misrepresentation of the proposed event as a cultural evening although objective was to hold a political meeting.
(ii) Forcefully holding the event even when the permission to hold itwas withdrawn by theDOS. (Hi) Creating a law and order situation on campus both atSabarmatiHosteland Ganga Dhaba.
(iv) Shouting unconstitutional slogans, and making derogatory remarks aboutthe nation.
20. She would submit, the HLEC followed Standard Operating Procedures devised by the HLEC specifically for the said enquiry during the course ofenquiry. The HLEC spent considerable time in examining all the evidences pertaining to the event which included taking written depositions of eye witnesses and security officials, posters, form for seeking permission, examining the video clips submitted by JNU Security Office and scrutinizing various documents/posters related to this incident. The video submitted to the committee by the CSO was duly authenticated by a Government approved agency: Truth Labs, Bangalore. Subsequently to enquiry procedure, the HLEC recommended that the Petitioner be charged under Category II of(Rules of Discipline and Proper Conduct of Students ofJNU)ofthe students ofUniversity and imposed a fine of Rs.20,000/-. The HLEC submitted its report along with recommendations to the Vice Chancellor on March 11,2016. W.P.(C)No.7914/2016 Page 14 of35
21. According to her,the ChiefProctor,after perusing the report of the HLEC,issued a Show Cause Notice on March 14,2016 along with an extension dated March 16,2016 and a copy ofHLEC reportto the Petitioner.The Respondentsubsequently on April25,2016,after more than a month,passed an office order wherein it was stated that- With reference to the 9 February 2016 incident ofJNU campus, the High Level Enquiry Committee (HLEC) has found Ms. Anwesha Chakraborty (Registration Number- 34427, Enrolment No: 15/62/MS/038, Year ofAdmission: 2015, M.Phil./PHD Students, Centrefor Political Studies, SchoolofSocialSciences)guilty on thefollowing counts. The University 'Rules and discipline andproper conductof students ofJNU', Clause 3- 'Categories ofmisconduct and indiscipline', Category-II, Sub- Category (xxv) prohibits 'Any other act which may be considered by the VC or any other competent authority to be an act of violation of discipline andconduct'. ^As per the HLEC recommendation, Ms. Anwesha Chakraborty has beenfoundguilty of a)Lending her name in the poster titled "Against the Brahmical collective conscience!Against thejudicial killing of Afzal Guru and Maqbool Bhatt "in the name of Cultural Evening thus arousing communal and caste feelings W.P.(C)No.7914/2016 Page 15of35 yu This act on thepartofMs. Anwesha Chakrahorty is serious in nature, unbecoming ofa student ofJNU and callsfor stringentdisciplinary action againsther. In view ofthis and keeping her career in mind, the Vice Chancellor has taken a somewhatlenient in the matter. Ms. Anwesha Chakrahorty is fined Rs. 20,000/- (Rupees tw.enty thousand only)and is also warned to be careful and not to get involved in such incidents in the future. Othei'wise, a stringent disciplinary action will be taken against her. She is directed to deposit thefine by IS May 2016andshow theproofthereofto this office,failing which the hostelfacility will be withdrawn with immediate effect andfurther registration willnot be allotted.
22. Subsequently on May 02, 2016, the Petitioner in her letter to the Vice Chancellor appealed to withdraw the Office Order dated April 25,2016 wherein she stated that-y)' ' This charge against me is completelyfalse and without any basis, as the object ofthe cultural evening was to inspire students to oppose caste oppression and communalfeelings. According to Ms.Routray,the purpose ofthe event mentioned in the booking requisition form and in the poster were different. The booking requisition form stated that permission was sought to hold a "Poetry Reading -A Country Without, a Post Office at Sabarmati Dbaba" on 9 Februaiy'2016 from 5 pm- 7:30 pm whereas the Poster W.P.(C)No.7914/2016 Page 16 of35 9^ stated- "Against the Brahmanical Collective Conscience! Against the judicial killing of Afzal Guru & Maqhool Bhat! In solidarity with the struggle ofthe Kashmiripeoplefor their democratic right to self-determination We invite youfor a cultural evening ofprotests with poets, artists, singers, writers, students, intellectuals, cultural activists 9"" February, Tuesday,5pm,SabarmatiDhaba. There willalso be an artexhibition&andaphoto exhibitionportrayingthe history of the occupation of Kashmir & the people's struggle againstit. Weinvite everyonetojoin usinprotest, in rage against the occupation and in solidarity with the valiantpeople ofKashmir.
23. She states, the Petitioner's name was mentioned in the poster along with the undertaking attached to the booking requisition form, however, her name was later on struck off from the undertaking. Furthei,the Petitioner did not respond to the charge levelled against her in the Order dated April 25, 2016 regarding her name on the Postei. The ChiefProctor on May 03,2016 addressed a letter to the Petitioner wherein it was stated that- With reference to your representation dated 2 May it is informed that ChiefProctor desired to meetyou and,discuss.
24. She submitted, this Court vide Order dated May 13, 2016 W.P.(C)No.7914/2016 Page17of35 directed thatthe Order shall not be given effect till the appeals ofthe petitioners are heard and disposed of. Subsequently, the Petitioner was given provisional admission to continue in the present semester keeping m view the Order dated May 13, 2016 by the Delhi High Court.
25. That the Respondent finally issued the Office Order.No.201/CP/2016 dated August22,2016 wherein it wasstated that- Evidence
1. She lent her name to be printed in an objectionable poster titled 'Against the Brahmanical collective conscience!Againstthejudicialkilling ofAfzal Guru and Maqbool Bhatt...'in the name ofcultural evening thus arousingcommunalandcastefeelings. Recommendations jj': fjffi, V-s Ms. Chakraborty did not make any specific appeal to absolve herself from the charges made bytheHLEC. On the contraryshequestionedtheformation ofHLECitself and askedfor documents and evidence related to her involvement in the event. The Committee thereupon considers the recommendations of the HLEC on the aforesaidstudentto be highlyjustifiable. Therefore, the punishmentrecommendedbytheHLECi.e. "AfineofRs. 20,000"standsas itis. In addition to it,she has tosubmit W.P.(C)No.7914/2016 Pagel8of35 an undertaking in a prescribed format to the Chief Proctor.
26. She would also state, without prejudice to the fact that the allegations levied against JNU authorities in her Affidavit dated September05,2016 are wrong and denied. The Petitioner stated that- They told me my offence lies in agreeing to a 'cultural event which was 'planned' to raise 'anti-national' feeling within the University space. On saying Ifind nothing wrongin giving m name to a poster, which is the only evidence against me, I was asked whether I will participate in anysuch activities afterwards Onfurther refusing to answer thisIwas toldthatIam not being 'co-operative' with the Committee. Then I was given apile of files to look into in the nextroom with one ofthe membersofHLECforcislongas it wouldtake me. By the Petitioner's own admission it is evident that she was given sufficient time to go through the documents and further,she does not deny giving her name in the Poster which led to a law and order situation on Februaiy 09, 2016 nor does she express regret for the same.
27. That the University's autonomy mean its right of selfgovernment particularly, it's right to carry on its legitimate activities without interference from any outside authority. That the petitioner W.P.(C)No.7914/2016 Pagg19 35 against whom charges wereframed wasgiven adequate opportunityto defend herself,and the committeefollowed the rules ofnaturaljustice while holding the enquiry. Thatitis a settled law that matters falling within the jurisdiction ofeducational authorities should normally be leftto their decision and this Court would notinterfere unless itthinks it must do so in the interest ofjustice. This Court in Jawaharlal Nehru University V Flora Gupta, LPA 570/2012 & CM No.l4010/2012hQ\dth2it- The grounds on which administrative action is subject to control byjudicialreview are, "illegality"; "irrationality" and "proceduralimpropriety". The Courtwillbe entitledto interfere in such matters ifthe decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety. To be "irrational" it has to be held that on material, it is a decision "so outrageous" as to be in total defiance of logic or moral standards. If the power is • •• t'>i t w, 'n-"V--" exercised on the basis offacts which do not exist having which are patently erroneous,such exercise ofpowershall be vitiated. Exercise ofpower will be set aside ifthere is manifest error in the exercise or such power is manifestly arbitrary. To arrive ata decision on "reasonableness"the court has to find out if the respondents have left out a relevantfactorortaken intoaccountirrelevantfactors.
28. She would state, the Respondent's action is within their authority and exercise theirjudgmentin good-faith, and followed the W.P.(C)No.7914/2016 Page20of35 applicable laws. The constitutional provisions,the provisions ofthe Act, the Statute and the Ordinances and the principles of natural justice have been complied with by the Respondent. The Petitioner wasserved with notices ather hostel,in her various addresses and was asked to show cause and was also given opportunity to defend herself before the enquiry committee. The Petitioner was given ample opportunity to defend butshe herselflostthe opportunity by not even respondingtothe simple queriesraised bythe Appellate Committee.
29. Thatthe Legal Submissions made andjudgments relied upon in Umar Khalid V.JNU,W.P. © 7826/2016 and Anirban Bhattacharya
V. JNU, W.P. © 7828/2016 may be read as part and parcel ofthe presentsubmissions. Thejudgments arq:- /.V,' sL", A' i' • " •*''
(i) K.L. Tripathi v. State and Ors1984(12)SCC
43;
(ii) State ofGujarat v. Pagi Bhum Bhai RumalBhai AIR 1969
Gujarat260; (Hi) AjeetSeedsLtd. V.K.GopalKrishnaiah 2014(1)SCC685;
(iv) Chief Commissioner of Income Tax (Administration)
Bangalore v. V.K. Gururajand Ors.1996(7)SCC275;
(v) StateofPunjab v.BakhshishSingh1997(6)SCC381;
(vi) Suresh Koshy George v. University ofKerala AIR 1969 SC
(vii) StateBankofPatiala v.S.K.Sharma1996(3)SCC36;
(viii) Ram ChanderRoy v.Allahabad UniversityAIR1956ALL40;
(ix) V.Ramana v.APSRTC& Ors2005(7)SCC335;
(x) M.V.Bijlani Vs. UOI& Ors.(2006)5SCC88.
30. Having heard the learned counselfortheparties and perusedthe written arguments/submissions submitted by the counsels, it is noted that the subject matter of this petition is, the orders passed by the Competent Authority whereby a penalty in the nature of fine of Rs.20,000/- wasimposed onthe petitioner,which order was upheld by the Appellate Authority with a direction to file an undertaking. The enquiry relates to the events held on February 09, 2016 at the University Campus. The grounds ofchallenge by the petitioner are thatthe same has been held in violation ofStatute 32(5)ofthe Statutes of the University; proceedings have been held in violation of principles ofnaturaljustice; the action is actuated by malafide as the University is also reviving stale proceedings by issuing notice to some of the concerned students in respect of incidents of 2015. On a reading of order dated August 22, 2016, there is no connection between the findings offact and violation ofRules ofthe respondent University. The orders have been issued without giving the relevant d) W.P.(C)No.7914/2016 Page22of35 // material relied upon by the respective Authorities. The HLEC has prejudged the petitioner and the action taken on the basis ofthe report ofthe Committee is not impartial and unbiased. The HLEC did not even reply to the petitioner's request for documents, on the basis of which she has been found guilty. The impugned action has serious consequences for the petitioner's academic career. No Rule/Statute or Ordinance, under which petitioner has been punished has been stipulated. The Appellate Authority premised its decision on the refusal of the students to sign a vague undertaking that would have resulted in severe curtailment oftheir fundamental rights.
31. The respondent has justified its action by contending that the Enquiry Proceedings were held by following the principles ofnatural justice and the Rules/Statutes. It is the petitioner, who failed to come forward and depose before the Committee. That apart,the respondent has also highlighted the seriousness of the charges for which the petitioner was held guilty. That apart,the appellate proceedings were held after giving due opportunity to the petitioner to inspect the documents and after inspection of the documents and upon hearing and inability of the petitioner to answer the queries put by the Appellate Authority,the appellate order was passed.
32. There is no dispute thatthe petitioner had filed an Appeal dated May 02, 2016. It is also a conceded fact that the Vice Chancellor- Appellate Authority had held its meeting on July 04,2016. There is also no dispute thatthe petitioner was shown the record ofthe enquiry. The parties are at variance aboutthe duration for which the record was W.P.(C)No.7914/2016 Page 23of35 shown. It is a conceded factthat a hearing was given to the petitioner on the same day, which resulted in the passing ofthe appellate order on August22,2016.
33. Clause 12 ofthe Norms and Procedure followed during enquiry stipulates thatevery punished student has arightto appeal. In the case in hand,after this Court had passed the order on May 13,2016 in the earlier writ petition filed by the petitioner being W.P.(C) NO. 4390/2016, the respondent University issued a communication dated June 24,2016 asking the petitioner to appeal to the Vice Chancellor and depose on July 04,2016., Thdrconimunication does not refer to the fact that the petitioner shall' be given the relevant record/documents for inspection. Be that as it may, the learned counsel for the parties agree that;the files/records/documents before the HLEC were given to the petftipner o[4]:July 04,2016 to enable her to peruse the same and make-suiDmission's.:on the same day. Even assuming, three hours wer^^^gr^td^tb/^^petitioner to inspect the documents on July 04,2016,some tiihe need to have been granted to the petitioner to apply,her mind on the evidence so noted by her duiing the inspection, which was againstfter-and to make an effective appeal. Surely,for such purposes,she may have required reasonable time to prepare her case,which may include seeking legal advice. The procedure evolved by the Appellate Committee to allow inspection of the documents/iecords and hearing her could not be in conformity with the principles of natural justice and the law laid down by the Supreme Court in the case ofAssociated Cement Company Ltd. v. W.P.(C)No.7914/2016 Page24of35 Workmen and another (1964) 3 SCR 652, wherein the Supreme Court was considering an appeal arising out of an industrial dispute between the appellant and the respondent workman with regard to dismissal offive workmen employed by the appellant company. One ofthe issue was that before the enquiry was actually held on June 11, 1952,notice was not given to Malak Ram,one ofthe workmen telling him about the specific date ofthe enquiry. The Supreme Court held that failure to intimate to the workman concerned about the date ofthe enquiiy may,by itself, not constitute an infirmity in the enquiry, but, on the other hand,it is necessary to bear,in mind that it would be fair ifthe workman is told as to when the enquiry is going to be held so that he has an opportunity to prepare:.himself to make his defence at the said enquiiy and to collectsuch evidence as he may wish to lead in support of his defence. The Supreme'Court held, on the whole, it would not be right that the,-worl^ah^shptild be called on any day without previous intimation.'; and rthe i enquiry should begin straightaway. The Supreme''Courty^held^^ such a course should ordinarily be avoided in holding domestic enquiries. In other words, the Supreme Court has held that am incurnbent should be given sufficient opportunity/time to consider the evidence, which has come against him and to collect evidence in support of his defence. In the case in hand,no such time was given to the petitioner. That apart,if the material is being shown to the petitioner,on July 04,2016,surely, some time should have been given to the petitioner to enable her to supplement her appeal already filed by her on May 02, 2016. This would be in conformity with the concept offair play in action, which W.P.(C)No.7914/2016 Page25of35 is the basis ofnaturaljustice. That apart, even in these proceedings, the respondent has not filed, the complete record of the HLEC. In fact,in some ofthe connected petitions, a stand has been taken in the written submissionsthatonly certain documentsrelied upon by HLEC were filed before this Court and the entire evidence, documents, notices and proceedings are maintained by the respondent in its official files. The same are available for any other scrutiny as and when the same is requisitioned before the Court. Even if some depositions were filed along with the written arguments in some connected cases, the same are in Hindi. Even otherwise, the HLEC report refers to deposition of some pye witnesses, which are in the deposition files. Itisnotclear,whothPsPiWitnesses are,who are being referred to. All the evidence,,documents, notices and proceedings being in the official files,there Was no occasion for this Court/counsel foi the petitioner to Ibokv^.vintd;. the same for a proper appreciation/justification ofthPimp^r^^^^
34. That apart, I note,the petitioner,in her appeal dated May 02, 2016 has raised several grounds. A perusal ofthe order dated August 22,2016,it is seen thatthe Appellate Authority has not dealt with the said grounds. The Supreme Court in the case reported as(2013)6 see530ehairman,LifeInsurance eorporation ofIndia andothers V.A.Masilamani,in para 19 held as under "19. The word "consider", is ofgreatsignificance. The dictionary meaning ofthe same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that, there must W.P.(C)No.7914/2016 Page 26 of35 i / be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation ofopinion by the statutory authority, should reflect intense application ofmind with reference to the materialavailable on record. The order ofthe authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order.(Vide:Indian Oil Corpn.Ltd. &Anr. v. Santosh Kumar,(2006) 11 see 147; and Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat&Anr.,AIR 2008Se1771).,. In view ofthe aforesaidjudgmentofthe'Supreme Court,it is expected that the Appellate Authority should have'disposed offthe appeal by a reasoned and speaking order; This I say so, there is nothing in the Rule,relating to appeal which says other\yise i.e it is notnecessaryfor the Appellate Authority to passUTeasohed'brd
35. Insofar as the plea of Rajkotia that the Vice Chancellor having involved in the process of enquiry at the first instance, cannot sit in appeal against his ownArder is concerned,the same is without any merit for more than one reason. Firstly, the petitioner by appearing before the Appellate Authority on June 16, 2016 has submitted to thejurisdiction ofthe Appellate Authority i.e. the Vice Chancellor. Secondly,the vires ofRule 12 contemplating an appeal to the Vice Chancelloris notunder challenge.
36. Insofar as the judgments relied upon by Ms. Routray are concerned, in K.L. Tripathi (supra), the issue, which fell for W.P.(C)No.7914/2016 Page27of35 Li consideration was with regard to a challenge to the departmental enquiry by an employee on the ground that he was not provided opportunity to cross examine. The Supreme Court held that in the absence ofany lis as to the facts,allegations having been not disputed by the delinquent officer,no prejudice has been caused,
37. The issue, which has been considered by me in the aforementioned paras is only with regard to, whether sufficient opportunity was given to the petitioner to inspectthe documents atthe appellate stage and then submit an appropriate appeal after the inspection, so as to make the appellate proceedings meaningful and puiposeful. Hence,thejudgrrient would have no relevance.
38. Insofar as thejudgment in'the base;ofState ofGujarat v.Pagi Bhurabhai Rumalbhai (supra), is concerned, in the said case the Giqarat High Court held that tiie\d&c[uent has no right to seek a personal hearing at the appellate•sta^k-^^ the case in hand, the personal hearing having beeh^agf^d-fb^aMTgranted by the University, it cannot be contended by Ms.Routray that the personal hearing was notrequired. ■
39. In AjeetSeeds Limited(supra), para 10 on which the reliance was placed, relates to a conclusion with regard to Section 114 ofthe Evidence Act, which enables the Court to presume that in common course of natural events, a communication made would have been delivered at the address ofthe addressee. A reference was made to Section 27 of the General Clauses Act, which gives rise to presumption that service ofnotice has been effected when it is sent to W.P.(C)No.7914/2016 Page 28 of35 the coiTect address by registered post. The said judgment has no applicability on the limited issue being considered and decided by this Court.
40. In Hira Nath Mishra and others v. The Principal, Rajendra Medical College, Ranchi and another (1973) 1 SCC 805, the Supreme Court was concerned with a case where the appellants, the male students of a Medical College lived in the College hostel. A confidential complaint was received by the Principal from thirty six girl students residing in the Girls Hostel ofthe College alleging that the appellants with some others at late night had entered into the compound of the Girls Hostel and walked without clothes on them. The Principal constituted an Enquiry Committee consisting three Members of the staff. The identification through photographs was carried out and the Girls by and large could identify the appellants from the photographs. The appellants were called before the Committee one after the other. They were explained the contents of the complaint. Due care was taken not to disclose the names ofthe Girls,who madethe complaint. The appellants denied the charges and said they were in the Hostel at that time. The Supreme Court held as under:-
(i) The complaint made to the Principal related to an extremely serious matter as it involved not merely internal discipline but the safety ofthe girl students living in the Hostel under the guardianship of the college authorities. These authorities were in loco W.P.(C)No.7914/2016 Page29of35 parentis to all the students-male andfemale who were living in the Hostels and the responsibility towards the young girl students was greater because their guardians had entrusted them to their care by putting them in the Hostels attached to the college. The authorities could notpossibly dismiss the matter as of smallconsequence because ifthey did, they would have encouraged the male student rowdies to increase their questionable activities which would, not only, have brought a bad name to the college but would have compelled the parents ofthe girl students to withdraw them from the Hostel and, perhaps, even stop their further education. The Principal was, therefore, under an obligation to make a suitable enquiry and punish the miscreants..p M' f'-.);-'-
(ii) The Police could not be called in because ifan investigation was started the female students out of sheerfright and harm to their reputation would not have cooperated with the police. Nor was an enquiry, as before a regular tribunal,feasible because the girls would not have ventured to make their statements in thepresence ofthe miscreants because ifthey did, they would have most certainly exposed themselves to retaliation and harassment thereafter. The very reasonsfor which the girls were not examined in the W.P.(C)No.7914/2016 Page30of35 presence ofthe appellants,prevailed on the authorities not to give a copy ofthe report to them. It would have been unwise to do so. (Hi) Therefore, the authorities hadto devise ajustand reasonable plan of enquiry which, on the one hand, would not expose the individualgirls to harassment by the male students and, on the other, secure reasonable opportunity to the accused to state their case. The coursefollowed by thePrincipal was a wise one.
(iv) Under the circumstances of the case, the requirements ofnaturaljustice werefulfilled, because principles ofnaturaljustice are not inflexible and may differ in differentcircumstances.",; From the above, it is noted that, keeping in view the nature of allegations against the male students; to protect the identity of the complainants, the girl students, the Supreme Court had upheld, the nature ofenquiry conducted by the University as being in compliance with the principles ofnatural justice. The aforesaid judgment ofthe Supreme Courthas no applicability in the facts ofthis case and also on the limited issue thatis being decided by this Court.
41. Insofar as the judgment of the Supreme Court in the case of Suresh Koshy George (supra) is concerned, in para 7 on which reliance was placed by Ms. Routray, the Supreme Court was considering a submission that the Vice Chancellor had not made W.P.(C)No.7914/2016 Page31 of35 / available to the appellanta copy ofthe reportsubmitted by theInquiry Officer before asking him to make a representation. The Supreme Court rejected the contention by holding that the enquiry was held after due notice to him and in his presence. He was allowed to cross examine the witnesses examined in the case and he was permitted to adduce evidence in rebuttal ofthe charge. The Supreme Court also held,no Rule was broughtto its notice,which stipulated the supply of report. The Supreme Court also observed that it was not the case of the appellant that he had asked for the copy ofthe report, which was denied to him. The judgment.relied upon by Ms.Routray is distinguishable, inasmuch as- the petitioner did not participate in the proceedings/the proceedings were held-invher absence. Further, the Appellate Authority itself has,.offered to allow inspection of the documents/record of HLEC. ' The^ petitioner had asked for the documents/record/material.in hep qppeal.^d^^^ May 02, 2016. The Appellate Authority having alljowed,thejinspection, reasonable time should have been given to thefpetitip^^^ supplement the appeal already filed by her on May 02, 2016. The judgment has no applicability, at least on the limitedissueThat js being decided by this Court.
42. Insofar asthejudgmentofthe Allahabad High Courtin the case ofRam Chander Roy(supra) wherein reliance was placed on paras 24 and 25,relates to the power ofthe Vice Chancellor to impose any punishment in maintaining the discipline ofthe University. There is no dispute on the said proposition oflaw. Insofar as the plea that the W.P.(C)No.7914/2016 Page32of35 right of cross examination was denied is concerned, the High Court held that it was not convinced that in a case where Head of an Educational Institution takes disciplinary proceedings, it is necessary that he must give an opportunity to the student to cross examine the witnesses, who may be examined by him in order to satisfy himself that an occasion has arisen for taking disciplinary action against him. In matter of discipline, the Head of Educational Institution does not act as ajudicial or a quasijudicial Tribunal. The Disciplinary power vested in any Officer or the Head ofan Institution is a power which is absolutely necessary for and ancillary to the exercise ofadministrative functions in that capacity. Suffice to state, 32(5)ofthe Statutes ofthe University lays down the procedure. In any case,as stated above,on a limited issue, which is being decided, this judgment would not have any applicability.
43. In State Bank ofPatiala and Others v. S.K. Sharma (supra), Ms.Routray who relied upon para 35 to contend that no prejudice has resulted to the petitioner on account ofnon furnishing him the copy of the statements of witnesses as it cannot be said that he did not have a fair hearing is concerned,there is no dispute,in view ofthe position of law noted above,butthe limited time given by the Appellate Authority to the petitioner to inspectthe documents/material/record and to give a hearing on the same day would not be in conformity with the principles ofnatural justice. Surely,the Authority empowered under the Statute is required to give a reasonable opportunity to make the W.P.(C)No.7914/2016 Page33of35 very purpose of the power being exercised by such Authority meaningful.
44. Insofar as State Bank of Punjab and others v. Bakhshish Singh (supra)is concerned,there is no dispute that the Court cannot sit as an Appellate Authority over and above the conclusion of the Disciplinary Authority that a particular act was a gravest act of misconduct warranting dismissal. As stated above, on the limited issue that is being decided by this Court,thisjudgment would have no relevance. -.
45. Insofar as Chief Commissioner of Income Tax (Administration), Bangalore v. V.K. Gururajand others(supra) is concerned,the saidjudgment is on the proposition ofdeemed service, which in any case hasno applicabilityforthe reasons already stated.
46. Insofar as thejudgment in the case of V. Ramana v. APSRTC and Ors(supra)is concerned,the same relates to the issue ofjudicial review with regard to punishment. The same has no applicability in view oflimited issue thatis being decided bythis Court.
47. Insofar as the reliance placed by Ms.Routray on thejudgment ofM.V. Bijlani(supra)is concerned,in view ofthe limited issue that is being decided by this Court, this judgment would have no relevance.
48. In view ofmy above discussion,the writ petition is allowed to the extent that the Appellate Order dated August 22,2016 is set aside and the matter is remanded back to the Appellate Authority with a W.P.(C)No.7914/2016 Page34of35 direction to grant an opportunity of inspection to the petitioner, the record ofthe HLEC for two continuous days during office hours only by notifying the date and time to the petitioner for the same and upon such inspection, the petitioner shall have one week time to file a Supplementary Appeal,upon which the Appellate Authority shall give a hearing to the petitioner on a date and time fixed by the Appellate Authority, who thereafter shall, by considering the appeal(s) already filed by the petitioner and the Supplementary Appeal, if any, pass a reasoned order as expeditiously as possible preferably within six weeks thereafter. Till such time,the order dated April 25,2016 shall not be given effectto. Itis also made clear in view ofthe undertaking given by the petitioner in W.P.(C)No.4390/2016 the petitioner shall not indulge in any strike or dhama or agitation or coercive action in future in connection with the issue, till such time the proceedings between the parties attain finality. No costs. CM No.32751/2016(for stavV Dismissed as infructuous.
OCTOBER 12,2017/ak V KAMESWAR RAO,J