Suresh Koshy George Vs. The University
of Kerala & Ors [1968] INSC 153 (15 July 1968)
15/07/1968 HEGDE, K.S.
HEGDE, K.S.
SHELAT, J.M.
CITATION: 1969 AIR 198 1969 SCR (1) 317
CITATOR INFO:
R 1970 SC 150 (20) E 1970 SC1896 (22) R 1973
SC1124 (11,12) RF 1975 SC2045 (6,7) R 1976 SC2002 (3) F 1977 SC1627 (2) R 1978
SC 597 (61) E&R 1978 SC 851 (45) R 1985 SC1416 (96,98) RF 1986 SC 555 (6)
ACT:
Kerala University Act, 1957,-Rules framed by
Syndicate delegating power to Vice-chancellor to hold inquiries on malpractices
during examinations-rules not followed-if inquiry invalid.
Natural Justice-principles of-if require that
inquiry report must be furnished with show-cause notice.
HEADNOTE:
As certain preliminary reports indicated that
the appellant had indulged in malpractices during an examination, the
Vice-Chancellor of the respondent University appointed the second respondent to
conduct an enquiry. The second respondent submitted a report holding the
appellant guilty of the malpractice and on the basis of this report, a show
cause notice was issued to the appellant by the ViceChancellor. After the
appellant had submitted his explanation in response to the notice, and not
being satisfied with his explanation, the Vice-chancellor passed an order
debarring the appellant from appearing in any examination for a year. This
order was subsequently approved by the Syndicate of the University.
The appellant challenged the
Vice-Chancellor's order by a writ petition under Article 226 contending inter
alia that (i) the rules framed by the Syndicate delegating its powers to the
Vice-Chancellor required that for conducting the inquiry should have appointed
an officer designated by the principal of the college in which the appellant
appeared for his examination; this was not done in the present case and hence
there was no proper inquiry; and (ii) the impugned order was invalid inasmuch
as no copy of the report made by the second respondent was made available to
the appellant before he was called upon to submit his explanation in response
to the show cause notice. A Single Bench of the High Court allowed the
petition, but his decision was reversed in appeal by a Division Bench,.
On appeal to this Court, HELD: Dismissing the
appeal.
(i) The rules made by the Syndicate of the
University under which the inquiry was ordered were not statutory rules but
merely rules framed for guidance. The rule under which the Vice-Chancellor was
required to request the principal of the concerned college to appoint -an
Inquiry Officer merely laid down a convenient procedure. Hence the
Vice-Chancellor cannot be said to have contravened any law in appointing the
Inquiry Officer not designated by the principal.
Furthermore. the principal in the present
case was the father of the appellant; the Vice-Chancellor was therefore right
in not appointing him but an independent person as the Inquiry Officer. [321
B-C, F-H] (ii) There was no breach of the principles of natural justice in the
appellant not being furnished with a copy of the report of the second
respondent before he was called upon to give his explanation. The appellant had
been duly informed of the charge against him long before the inquiry began; the
inquiry was held after due notice to him and in 12 Sup C.I./68-6 318 his
presence; he was allowed to cross-examimne the witnesses examined in the case
and he was permitted to adduce evidence in rebuttal of the charge. No rule,
either statutory or otherwise, required th Vice-Chancellor to make available to
the appellant a copy of the report submitted by the Inquiry Officer. [322 B-C]
Russel v. Duke of Norfolk and others, [1949] 1 All E.R. 108 (at 118); Local
Government Board v. Alridge, [1915] A.C. 120, De Verteuil v. Knaggs and Anr.,
[1918] A.C. 557; Byrne and Anr. v. Kinematograph Renters Society Ltd. &
Ors., [1958] All E.R. 579; The Board of High School and Intermediate Education
U.P. v. Bagleshwar Prasad. and Ors., [1963] 3 S.C.R. 767 (775), referred to.
B.Surinder Singh Kanda v. Government of the
Federation of Malaya, [1962] A.C. 322; General Council of Medical Education and
Registration of the United Kingdom v. Spackman, [1943] 2 All E. Reports, 337;
New Prakash Transport Co. v. New Savarna Transport Co., [1957] S.C.R.
98; distinguished.
There is an erroneous impression evidently
influenced by the provisions in Art. 311 of the Constitution particularly as
they stood before the amendment of that Article that every disciplinary
proceeding must consist of two inquiries, one before issuing the, show cause
notice to be followed by another inquiry thereafter. Such is not the
requirement of the principles of natural justice. Law may or may not prescribe
such a course. Even if a show cause notice is provided by law from that it does
not follow that a copy of the report on the basis of which the show cause
notice is issued should be made available to the per-,on proceeded against or
that another inquiry should be held thereafter.
[326 G-327 A]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 990 of 1968.
Appeal by special leave from the judgment and
order dated October 16, 1967 of the Kerala High Court in Writ Appeal No.
128 of 1967.
S.V. Gupte, A. S. Nambiar and Lily Thomas,
for the appellant.
V.S. Seyid Muhamad, P. Keshava Pillai for M.
R. K. Pillai, for respondents Nos. 1 and 3.
The Judgment of the Court was delivered by
Hegde J. This appeal by special leave from the decision of the Division Bench
of the Kerala High Court arises from the disciplinary action taken by the
Kerala University against the appellant. He was a student in the 1st year
Degree Course of the Five Year Integrated Course of Engineering, in the
Engineering College, Trichur during the academic year 1964-1965. The Vice
Chancellor of the said University came to the conclusion that he was guilty of
malpractice during the examination held in April 1965 and consequently debarred
him from appearing in any examination till April, 1966.
In the examination in question the appellant
bad to appear in two papers in Mathematics. In this case we are concerned with
319 the Mathematics I paper. The Additional Examiner who valued that paper
awarded the appellant 14% marks but the Chief Examiner gave him 64% in that
paper. The appellant had answered questions Nos. 1(a), 5(a), 9(a) and 4(a) in
the main answer book and secured 0.2 out of 6.0 and 0 marks respectively from
the Additional Examiner. Pages 611 of his main answer book were left blank.
There were some additional answer books, certain pages of which were also left
blank. Two of the additional answer books were also unused and left blank. In
the used additional answer book questions 1(a) and 9(a) which the appellant had
already answered in the main answer book and for which he had secured 0 marks
from the Additional Examiner were found re answered and for these he Secured
100% marks from the Chief Examiner. The Chairman of the Board of Examinations,
noticing this unusual feature reported the matter to the Board of Examiners in
Mathematics. The Board suggested that the University should take up the matter.
The University thereafter called for the answer books of the appellant and the
same was handed over to the Dean of the Faculty of Science who is the Convener
of the Standing Committee for Examinations of the University for scrutiny. That
official suspected that the additional books must have been inserted after the
Additional Examiner had valued the paper and therefore suggested to the
University that a high powered committee should be constituted to go into the
matter.
Accordingly a committee consisting of the
Chairman of the Board of Engineering Examinations who is the Dean of the
Faculty of Engineering, Chairman of the Mathematics Section of the Engineering
Examinations, the Dean of Faculty of Science who is the Convener of the
Standing Committee on Examinations, and the Registrar of the University was
constituted to go into the matter. That committee after inquiry in which the
Additional Examiner, the Chief Examiner as well as the appellant were examined
came to the conclusion that the appellant was guilty of malpractice which
called for disciplinary action. Consequently the Vice Chancellor ordered a
formal inquiry as required by rules.
He appointed the second respondent, a retired
Principal of the University College, Trivandrum as Inquiry Officer for
conducting the inquiry. After inquiry the second respondent submitted a report
holding the appellant guilty of malpractice during the examination in question.
He opined that subsequent to the valuation of the paper by the, Additional
Examiner, the appellant had inserted additional answer books with the collusion
of the Chief Examiner. On the basis of that report a show cause notice was
issued to the appellant by the Vice Chancellor. The appellant submitted his
explanation in response to that notice. Not being satisfied with that explanation
the Vice Chancellor passed an order debarring the appellant from appearing for
any examination till April, 1966. The same was subsequently approved by the
Syndicate. The Order of the Vi 320 Chancellor was impugned before the High
Court in a Petition under Art. 226 of the Constitution. A Single Judge of the
High ,Court who heard the matter at the first instance allowed the, petition
and set aside that order but his decision was reversed in appeal by a Division
Bench of that High Court. The appellant appeals to the Court against that
decision.
Before the High Court as well as in this
court the impugned order was assailed on two grounds viz.-(1) the formal
inquiry required under the rules should have been conducted by an officer
designated by the Principal of the College in which the appellant appeared for
his examination i.e.
Examination Centre and hence there was no
proper inquiry and (2) the impugned order was invalid inasmuch as no copy of
the report made 'by the second respondent was made available to the appellant
before he was called upon to submit his explanation in response to the show
,cause notice issued to him by the Vice Chancellor.
Those contentions appealed to, the learned
Single Judge but the Judges of the Division Bench found no merit in them.
Those very contentions have again been
repeated before us.
Before examining those contentions, it is
necessary to mention a few more facts. The Kerala University is governed by
Kerala University Act, 1957. The Engineering College, Trichur is affiliated to
the Kerala University. Under s. 19(N) of the Kerala University Act, the control
over the discipline of the students is vested with the Syndicate of the
University. Cl. (V) of that section empowers the Syndicate to delegate any of
its powers to the Vice Chancellor. Cl. 3(xxvii) of Chapter VII of the 1st
Statutes says :
"The Syndicate shall, in addition to the
powers and duties conferred and imposed on it by the Act and subject to the
provisions thereof, have and exercise the following powers and functions :.........
(xxvii) subject to the provisions in the
laws, to take cognizance of any misconduct by any student in a college or
institution or in a hostel or approved lodging, or by any student who seeks
admission to a University course of study, or by any candidate for any
University Examination, brought to the notice of the Syndicate by the head of
the institution or by a member of any Authority of the University or by the
Registrar of the University or by a Chairman of a Board of Examiners or by a
Chief Superintendent at any centre of examination and to punish such misconduct
by exclusion from any University examination or from any University course in a
321 college or in the University or from any Convocation for the purpose of
conferring degrees, either permanently or for a specified period, or by the
cancellation of the University examination for which he appeared or by the
deprivation of any University scholarship held by him or by cancellation of any
University prize or medal awarded to him or by such other penalty as it deems
fit." Admittedly the Syndicate delegated the above power to the Vice
Chancellor under Exh. R. 5, a set of rules framed by the Syndicate. These rules
are not statutory rules. They are merely rules for guidance. They could not
have been framed under s. 28 of the Kerala University Act. No other provision
in that Act empowers the Syndicate to frame rules.
But the delegation of powers made under those
rules is valid as no fixed procedure is prescribed in that regard. Those rules
provide that on the receipt of a complaint against a student the Vice
Chancellor should get an inquiry made in respect of that complaint by an
officer designated by the Principal of the College in which the concerned
student appeared for his examination. They further provide that on receipt of
the report of the Inquiry Officer the Vice Chancellor after consultation with
the sub-committee on discipline should take a provisional decision, that
decision should be communicated to the student who should be called upon to
show cause against the provisional decision and after receiving his
representation, if any, the Vice Chancellor should pass appropriate final
orders.
In this case the Principal of the College in
which the appellant appeared for his examination was not requested to appoint
an Inquiry Officer. The Inquiry Officer was directly appointed by the Vice
Chancellor himself. The reason for this course is obvious. The Principal in
question was the father of the appellants The Vice Chancellor, therefore,
thought it proper that be himself should appoint some independent person as the
Inquiry Officer. We have earlier seen that the rule under which the Vice
Chancellor was required to request the Principal of the concerned college to
appoint an Inquiry Officer is not a statutory rule. That rule merely laid down
a convenient procedure. Hence the Vice Chancellor cannot be said to have;
contravened any law in appointing the Inquiry Officer.
It cannot be said and it was not said that
the steps taken by the Vice Chancellor were in contravention of the principles
of natural justice. The second respondent as mentioned earlier is a retired
Principal of an Engineering College, a responsible person and highly qualified
for the task entrusted to him. His disinterestedness was never challenged at
any stage of the inquiry. In our opinion, the Division Bench of the High Court
rightly negatived the contention that by appointing the second respondent as
the Inquiry Officer, the Vice Chancellor had either breached any statutory rule
or contravened any principle of natural justice.
322 The only other contention that was taken
before the Division Bench and repeated in this Court was that inasmuch as the
Vice Chancellor did not make available to the appellant a copy of the report submitted
by the second respondent before he was called upon to make his representations
against the provisional decision taken by him, there was breach of the
principles of natural justice. The appellant had been duly informed of the
charge against him long before the inquiry began; the inquiry 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 of the charge. No rule either statutory or otherwise was brought to
our notice which required the Vice Chancellor to make available to the
appellant a copy of the report submitted by the Inquiry Officer. It is not the
case of the appellant that he asked for a copy of that report and that was denied
to him. The rules of natural justice are not embodied rules. The question
whether the requirements of natural justice have been met by the procedure
adopted in a given case must depend to a great extent on the facts and
circumstances of the case in point, the constitution of the Tribunal and the
rules under which it functions.
In Russel v. Duke of Norfolk and others(1),
Tucker, L.J. observed :
"There are, in my view, no words which
are of universal application to every kind of inquiry and every kind of domestic
tribunal.
The requirements of natural justice must
depend on the circumstances of the case, the nature of the inquiry, the rules
under which the tribunal is acting, the subject matter that is being dealt
with, and so forth.
Accordingly, I do not derive much assistance
from the definitions of natural justice which have been from time to time used,
but, whatever standard is adopted, one essential is that the person concerned
should have a reasonable opportunity of presenting his case." In Local Government
Board v. Alridge(2) Viscount Haldane L.C. observed "My Lords, when the
duty of deciding an appeal is imposed, those whose duty it is to decide it must
act judicially. They must deal with the question referred to them without bias,
and they must give to each of the parties the opportunity of adequately
presenting the case made. The decision must become to in the spirit and with
the sense of responsibility of a tribunal whose duty (1) [1949](1) All E.R. p.
108 (at 118).
(2) [1915] A.C. p. 120.
323 it is to mete, out justice. But it does
not follow that the procedure of every such tribunal must be the same. In the
case of a Court of law tradition in this country has prescribed certain
principles to which in the main the procedure must conform. But what that
procedure is to be in detail must depend on the nature of the tribunal. In
modem times it has become increasingly common for Parliament to give an appeal
in matters which really pertain to administration rather than to the exercise
of the judicial functions of an ordinary Court, to authorities whose functions
are administrative and not in the ordinary sense judicial. Such a body as the
Local Government Board has the duty of enforcing obligations on the individual
which are imposed in the interests of the community.
Its character is that of an organization with
executive functions. In this it resembles other great departments of the State.
When, therefore, Parliament entrusts it with judicial duties, Parliament must
be taken, in the absence, of any declaration to the contrary, to have intended
it to follow the procedure which is its own and is necessary if it is to be,
capable of doing its work efficiently. I agree with the view expressed in an
analogous case by my noble and learned friend Lord Loreburn. In Board of
Education v. Rice(1) he laid down that, in disposing of a question which was
the subject of an appeal to it, the Board of Education was under a duty to act
in good faith, and to listen fairly to both sides, inasmuch as that was a duty
which lay on everyone who decided anything. But he went on to say that he did
not think it was bound to treat such a question as though it were a trial. The
Board had no power to administer an oath, and need not examine witnesses. It
could. he thought, obtain information in any way it thought best, always giving
a fair opportunity to those who were, parties in the controversy to correct or
contradict any relevant statement prejudicial to their view.
If the Board failed in this duty, its order
might be the subject of certiorari and it must itself be the subject of
mandamus." In the above case the Local Government Board acted solely on
the basis of a report submitted by one of the Housing Inspectors of the Board
after a public inquiry. The House of Lords held that the procedure adopted did
not contravene the principles of natural justice. In De Verteuil v. Knaggs and
Anr.(2) the ,Judicial Committee of the Privy Council observed while considering
the scope of the powers of the Governor under s. 2 of the Immigration Ordinance
of Trinidad (1) [1911] A. C. 179. (2) [1918] A.C. 557.
324 "Their Lordships are of opinion that
in making such an inquiry there is, apart from special circumstances, a duty of
giving to any person against whom the complaint is made a fair opportunity to
make any relevant statement which he may desire to bring forward and a fair
opportunity to correct or controvert any relevant statement brought forward to
his prejudice." In Byrne and anr. v. Kinematograph Renters Society Ltd.
& ors.(1) Lord Harman J. observed:
"What, then, are the requirements of
natural justice in a case of this kind ? First, I think that the person accused
should know the nature of the accusation made; secondly that he should be given
an opportunity to state his case; and thirdly, of course, that the tribunal
should act in good faith. I do not think that there really is anything
more." The decision of the Judicial Committee in University of Ceylon V.
Fernando (2 ) appears to go much further than what was laid down in the aforementioned
cases. For the purpose of this case it is not necessary to take assistance from
the ratio of that derision. Suffice it to say that in the case before us there
was a fair inquiry against the appellant;
the officer appointed to inquire was an impartial
person he cannot be said to have been biassed against the appellant;
the charge against the appellant was made
known to him before the commencement of the inquiry; the witnesses who gave
evidence against him were examined in his presence and he was allowed to
cross-examine them and lastly he was given every opportunity to present his
case before the Inquiry Officer. Hence we see no merit in the contention that
there was any breach of the principles of natural justice. It is true that the
Vice Chancelor did not make available to the appellant a copy of the report
submitted by the Inquiry Officer. Admittedly the appellant did not ask for a
copy of the report. There is no rule requiring the Vice Chancellor to provide
the appellant with a copy of the report of the Inquiry Officer before he was
called upon to make his representation against the provisional decision taken
by him.
If the appellant felt any difficulty in
making his representation without looking into the report of the Inquiry
Officer, he could have very well asked for a copy of that report., His present
grievance appears to be an afterthought and we see no substance in it.
Mr. S. V. Gupte, the learned counsel for the
appellant, in support of his contention that the failure of the Vice Chancellor
to make available to the appellant a copy of the report submitted by the
Inquiry Officer is an infringement of the principles of natural justice, placed
strong reliance on the decision of the Judicial (1) [1958] All E.R. 579. (2)
[1960] (1) All E.R. 631.
325.
Committee in B. Surinder Singh Kanda v.
Government of the Federation of Malaya(1). Therein, at the instance of the
Commissioner of Police, a preliminary inquiry was held against S. S. Kanda.
Thereafter a formal inquiry was ordered On the basis of the conclusions reached
at the formal inquiry Surinder Singh Kanda was dismissed. Kanda challenged his
dismissal in an action brought in the High Court of Malaya. During the pendency
of that proceeding, it came to light that the report made by the Board which
held the preliminary inquiry, a report which was highly prejudicial to Kanda
had been placed in the hands of the officer who held the formal inquiry but
neither the copy of that report nor its substance had been made available to
Kanda. That report was likely to have prejudiced the Inquiry Officer against
Kanda. Under those circumstances the Judicial Committee came to the conclusion
that the inquiry held was not fair and consequently quashed the order
dismissing Kanda. The ratio of that decision has no application to the present
case. The decision of the House of Lords in General Council of Medical
Education and Registration of the United Kingdom v. Spackman ( 2 ) does not
bear on the question under consideration. Therein the House of Lords held that
the General Medical Council was not right in declining an opportunity being
given to Dr. Spackman to show that the conclusion of the Divorce Court that he
was guilty of infamous conduct was not correct. In that case the General
Medical Council took action against Dr. Spackman solely on the basis of the
conclusions reached by the Divorce Court in Pepper v. Pepper. Dr. Spackman
wanted to negative the court's finding of adultery by tendering evidence which
though available was not called in the divorce proceedings. The House of Lords
held that the Council's refusal to take fresh evidence prevented their being
the due inquiry required by s. 29 of the Medical Act, 1858 and therefore an
order of certiorari was granted.
The scope of the principles of natural justice
as explained by the English Courts was adopted by this Court in a large number
of cases. See New Prakash Transport Co. v. New Savarna Transport Co.(3) and
Nagendra Nath Bora v. The Commissioner of Hill Divisions (4 ).
Before closing this case we would like to
recall the observations made by Gajendragadkar J. (as he then was) speaking for
the Court in The Board of High School and Intermediate Education U.P. v.
Bagleshwar Prasad and ors.(5). His Lordship observed :
"In dealing with petitions of this type,
it is necessary to bear in mind that educational institutions like the (1)
[1962] A.C. 322. (2) [1943] (2) All E. R. 337.
(3) [1957] S.C.R. 98. (4) [1958] S.C.R. 1240
(1261).
(5) [1963] (3) S.C.R. 767 (775).
326 Universities or appellant No. 1 set up
Enquiry Committees to deal with the problem posed by the adoption of unfair
means by candidates, and normally it is within the jurisdiction of such
domestic tribunals to decide all relevant questions in the light of the
evidence, adduced before them. In the matter of the adoption of unfair means,
direct evidence may sometimes be available, but cases may arise where direct
evidence is not available and the question will have to be considered in the
light of probabilities and circumstantial evidence. This problem which
educational institutions have to face from time to time is a serious problem
and unless there is justification 'Lo do so, courts should be slow to interfere
with the decisions of domestic Tribunals appointed by educational bodies like
the Universities. In dealing with the validity of the impugned orders passed by
Universities under Art. 226, the High Court is not sitting in a appeal over the
decision in question; its jurisdiction is limited and though it is true that if
the impugned order is not supported by any evidence at all, the High Court
would be justified to quash that order. But the conclusion that the impugned
order is not supported by any evidence must be reached after considering the
question as to whether probabilities and circumstantial evidence do not justify
the said conclusion.
Enquiries held by domestic Tribunals in such
cases must, no doubt, be fair and students against whom charges are framed must
be given adequate opportunities to defend themselves, and in holding such enquiries,
the Tribunal, must scrupulously follow rules of natural justice; but it would,
we think, not be reasonable to import into these enquiries all considerations
which govern criminal trials in ordinary courts of law. In the present case, no
animal is suggested and no mala fides have been pleaded. The enquiry has been
fair and the respondent has bad an opportunity of making his defence. That
being so, we think the High Court was not justified in interfering with the
order passed against the respondent." There seems to be an erroneous
impression in certain quarters evidently influenced by the provisions in Art.
31 1 of the Constitution particularly as they stood before the amendment of
that article that every disciplinary proceeding must consist of two inquiries,
one before issuing the show cause notice to be followed by another inquiry
thereafter.
Such is not the requirement of the principles
of natural justice. Law may or may not prescribe such a course. Even if a show
cause notice is provided by law from that it does not follow that a copy of the
report on the basis of which the show cause notice is issued should be made
available 327 to the person proceeded against or that another inquiry should be
held thereafter.
For the reasons mentioned above the appeal
fails and is dismissed with costs.
R.K.P.S.
Appeal dismissed.
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