W.P.(C)/7914/2016 of ANWESHA CHAKRABORTY Vs JAWAHALAL NEHRU UNIVERSITY

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: October 12, 2017

+W.P.(C) 7914/2016, CM No. 32751/2016

ANWESHA CHAKRABORTY

Petitioner

Through;

Ms. Malavika Rajkotia,Mr.Vaibhav Vats andMs.Soumya Maheshwari, Advs.

Versus

JAWAHARLAL NEHRU UNIVERSITY

Respondent

Through: Ms., Ginny J. Rautray and Ms., Anushka Ashok, Advs.

CORAM:-HON'BLE MR JUSTICE V. KAiMESWAR RAO

J U M N T

V. KAMESWAR RAO. J

1. The present petition has been filed with the following prayers

"In view of the facts & circumstances stated above, it isprayed that this Hon 'hie Court in public interest may bepleased to:

1. issue M'rit of certiorari or any other writ, order ordirection thereby quashing and setting aside the report ofthe High Level Enquiry Committee set up by the

respondent vide Office Order No. 203/CP/2016 dated22.8.2016.of the Vice Chancellor punishing the petitioner,and all other proceedings consequential to and arising outof the report of the High Level Enquiry Committee of therespondent University;

2. award the petitioner the costs of these proceedings;3. Pass such further order or orders as this Hon'bleCourt may deem fit. "

2. It is the case of the petitioner, post the, events of February 09,2016, the Respondent set up 'proctorial enquiry' to enquire into theallegedly seditious slogans raised during the event. However, thisenquiry was superseded by the Vice Chancellor, who set up "HighLevel Enquiiy Committee". The students identified by the HLEC senta representation to the Committee, challenging its constitution andii' 'also requested that the findings, charges, and the purported evidencebe shared with them. The HLEC failed to respond to any of theserequests. As per the EILEC recommendations, the Petitioner was foundguilty of "lending her name in the poster titled "Against the Brahmicalcollective conscience! Against the judicial killing of Afzal Guru andMaqbool Bhatt..." in the name of cultural evening thus arousingcommunal and caste feelings." Whereby fine of Rs.20,000/- wasimposed upon the Petitioner. In order to protest the unfair manner inwhich the Petitioner, .among other students, was punished by theRespondent, some students of the University went on an indefinitehunger strike, followed by mass hunger strike by some teachers ofthe University. The Petitioner subsequently, approached this Court for

quashing the aforementioned office order. This Court held that theOffice Order will not be given effect until disposal of the appeal filedby the Petitioner before the Vice Chancellor. The decision of the ChiefProctor was upheld and the Petitioner was directed to deposit sum ofRs.20,000/- as fine. The Petitioner has been subjected to an enquirywhich was in violation of the principles of natural justice. Anyadministrative inquiry devoid of the adherence to these principles doesnot stand. Reference is made by Ms. Rajkotia to the judgments of theSupreme Court in AK Kraipak v. Union of India AIR 1970 SC 150and State of Orissa v. Dr. (Miss) Binapani Dei and Ors. AIR 1967SC 1269.

3. It is the submission of Ms. Malavika Rajkotia, that theimpugned action of the respondent is bad for the following reasons:-

A. Violation of Principles of Natural Justice

The principles of natural justice have been violated at every step of theenquiry undertaken by the Respondent. The enquiiy process sufferedfrom the following lacunae:

a. Biased Enquiry

4. The appellate authority is the Vice Chancellor whose approvalhad been granted for imposing the punishment under Office Order150/CP/2016 dated April 25, 2016. The Vice Chancellor was alreadyprejudiced against the Petitioner and was consequently incapable ofappreciating evidence from an unbiased perspective. The principle of

Nemo debet esse judex in propria causa" means that no one should bea judge in his own cause is applicable in this case. She referred to thejudgment of the Supreme Court in the case reported as {1978) AIR597 Maneka Gandhi v. Union of India, wherein the Supreme Courthas held that administrative action shall be held in manner which ispatently impartial and meets the requirements of natural justice. In theinstant factual matrix, it is clear that the appellate authority is the ViceChancellor whose approval had been granted for imposing thepunishment. As such, the Vice Chancellor cannot be the appellateauthority as he was already prejudiced against the petitioner andwould have been incapable of appreciating the evidence from anunbiased perspective. : ; , ;

b. Confrontation of Evidence

5. The Respondent failed to provide the Petitioner with copies ofall statements and evidence collected by the High Level EnquiryCommittee and consequently used by the Appellate Authority. TheRespondent provided the Petitioner with series of haphazardlycompiled documents which were completely irrelevant and did notprove any of the charges made against the Petitioner. The Respondenthas however, used these statements to level serious and false chargesagainst the Petitioner. She referred to the judgment of the SupremeCourt in the case reported as (1955) AIR 65 Dhakeshwari CottonMills V. Commissioner of Income Tax. In denying the Petitioner theopportunity to examine the statements and documents collected by theHLBC, the Respondent has denied the Petitioner of fair opportunity

making the enquiry process arbitrary and therefore illegal.

c. Cross examination

6. The Petitioner has also not been given the opportunity to crossexamine persons or test the veracity of the persons examined by thecommittee and to lead evidence in her defence. This clearly vitiatesthe process adopted by the Respondent. Clause (5) of Section 35(2) ofthe Statutes of the University clearly states that cross examination ofthe accused and the complainant is to be conducted in the proceedingsconducted as part of proctorial enquiiy. This opportunity has notbeen given to the petitioner in the instant scenario.

d. Notice

7. In addition to all of the lapses in the decision making processthe Petitioner was not given notice about the proceedings which theRespondent undertook to punish the Petitioner. She referred to thejudgment of the Supreme Court vn Nagarjuna Construction CompanyLtd. V. Government of Andhra Pradesh and Ors. 2008 (14) SCR 859.

B. Non-Application of Mind

8. The order passed is itself flav/ed in many respects. Theimposition of the same penalty on all concerned students baning two,in spite of huge differences in the acts that they have been held guiltyof, reflects lack of application of mind as well as complete ignoranceof the principles of sentencing that an administrative body entrustedwith holding an enquiry must be aware of. Moreover, while the

Appellate Authority has limited itself to the question of quantum ofpunishment, it has failed to provide any reasons for the punishmentimposed. The fact that the orders passed against all the students werein boilerplate language furthers the factum of lack of application ofmind by the Appellate Authority. She refeiTed to the judgments in thecase of Commissioner of Police v.Ghordandas 1952 SC 16 andD 'Souza V. State of Bombay 1956 SCR 382.

C. Application of Patently Illegal University Rules

9. The Respondent has punished the Petitioner under rules whichare illegal and void. The Petitioner's alleged acts have been classifiedas Categoiy II misconduct falling under clause (xxv), which reads,"Any other act which may be considered by the V.C. or any othercompetent authority to be an act of violation of discipline andconduct." This provision is too vague and wide. It can encompass anyact of student, and should therefore be considered void. Clause (10)of Statute 32(5) of the Statutes of the University state that the ViceChancellor shall make the final decisions in any enquiry and shallapprove the punishment imposed by the enquiry committee. Clause(12) of Statute 32(5) of the Statutes of the University state that theVice Chancellor shall also be the appellate authority. Under theseprovisions, the Vice Chancellor is required to be involved in theprocess of enquiry at the first instance. However, he is also required tosit in appeal over the same matter. This is in violation of the basicprinciple that person cannot sit in appeal against their own order.

D. Violation of the Fundamental Right to Freedom of Speech andExpression

10. The order passed by the HLEC and later confirmed by theAppellate Authority is not only violative of the Principles of NaturalJustice but also deprives the Petitioner of her right to protest anactivity to raise political issues which is her constitutional right underArticle 19 (1) of the Constitution of India, 1950. She relied on thejudgment of the Supreme Court in the case of Anita Thakur & Ors. v.Govt of Jammu and Kashmir & Ors AIR 2016 SC 3808, wherein itwas held that the right to peacefully protest is fundamental rightguaranteed by the Constitution. The involvement of the Petitioner inthe event held at the Sabarmati Dhaba on 9"" February 2016 waspeaceful the role played by her in the said event cannot be construedto be disruptive or giving rise to caste and communal feelings. Shereferred to the judgment of this Court in Amritshava Kamal v.Jawaharlal Nehru University 2007 (99) DRJ 528.

11. The past conduct of the Respondent is reflective of the fact thatthere exists tendency in the Respondent to hold inquiries in malafide manner, sidelining the interests of the students. In theabovementioned case, it was found that the Respondent had notprovided the Petitioner with opportunity or notice before the inquiryagainst the Petitioner. In support of this submission, Ms. Rajkotiareferred to the judgment of Flora Gupta v. Jawaharlal NehruUniversity Manu/De/3042/2012.

12. On the other hand, Ms. Ginny Routray learned counsel for therespondent would submit, the Petitioner was given ample opportunityto appear and depose before the Enquiry Committee along with theliberty to carry materials and evidences in her defense at the stage ofEnquiry, Show Cause Notice and Appeal. The Petitioner failed torespond to the first notice dated February 17, 2016 wherein she wasasked to appear before the Committee on February 18, 2016.Subsequently, second notice was issued on February 18, 2016 askingher to appear before the Committee on February 19, 2016. thirdnotice was served to the Petitioner on February 19, 2016 asking her toappear before the committee on February 26, 2016, however, thePetitioner abstained herself from appearing before the committee andclearing her stand. , \ .

13. The Petitioner on March 02, 2016, addressed letter to theHLEC wherein she stated that-' '

/ have received three email communications from the HighLevel Enquiry Committee Nos. HLEC/JNU/2016/2086,(dated February 17, 2016), HLEC/JNU/2016/2114 (datedFebruary 18, 2016) and HLEC/JNU/2016/2218 (datedFebruary 19, 2016) asking me to appear on 18'^ February,19"^ February and 26"^ February, respectively, before aHigh Level Enquiry Committee to explain my position on'an incident that took place on 9"^ February, 2016 nearSabarmati and Ganga Hostel' and to bring any evidence inmy defense.

In the circumstances following the 9'^ of February anextremely volatile situation has been created both inside andoutside the campus which has resulted in extreme mentaland physical stress for me

Due to continuous media trial of JNU and JNU students, Ifeel insecure because the prevailing atmosphere in JNU, thecity, and indeed the country is not conductive to properand fair investigation, making depositions and statementswithout fear impossible

I also note with concern that in your letter that the HLEChas only afforded me final chance for deposition but noopportunity to have witness examined in my defence or tocross-examine the person(s) who have complained againstme and the witnesses he/she/they have presented. This isagainst my natural rights for justice

14. Ms. Routray would submit, the Petitioner feeling unsafe withinthe campus is not viable excuse since the Respondent had takensteps to ensure the safety and tight security for all the students withinthe campus, in fact even morning walkers were prohibited to enter thecampus. Further, the Petitioner was residing within the campus andhad hand delivered all her letters/communications to theAdministrative Building. It is thus, evident that the Petitionerdeliberately avoided appearing before the committee and madebaseless excuse not to do so. She would further submit that had the

Petitioner appeared/deposed before the committee she would havebeen given the opportunity to access all the documents. She stated,even though the Petitioner and other students were not provided thecopies of the documents at the stage of show cause, the same wereavailable to them to access had they appeared before the committee todepose. Thus, they themselves failed to avail the opportunity providedto them. She submitted that the Petitioner would have been given anopportunity to cross examine had she come forward to record herstatement.

15. Show Cause Notice dated March 14, 2016 was issued to thePetitioner which stated that- , . - - v .

As per the High Level Enquiry Committee findings, you (Ms.'. I '1Anwesha Chakarhorty, Registration No: 34427, EnrolmentNo: 15/62/MS/038, Year ofAdmission: 2015, M. Phil./Ph.DStudent, Centre for Political Studies, School of SocialSciences, JNU, New Delhi) have been found guilty on thefollowing account under the Clause 3, Category II of Rulesand discipline and proper conduct of students of JNU.

(xxv) Any other act which may be considered by the VCor any other competent authority to be an act of violation ofdiscipline and conduct

16. According to Ms. Routray, the Show Cause Notice furtherasked the Petitioner to explain why disciplinary action should not beinitiated against her for indulging in the above mentioned acts. The

Petitioner was asked to submit her reply to the Chief Proctor's Officelatest by March 16, 2016, 17:00 hi*s later extended till March 18, 2016failing which it would be presumed that the Petitioner has nothing tosay 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 incompleteHLEC report. In this regard, Ms. Routray had submitted that all thestudents were provided with the complete report, however therecommendations for punishments were removed keeping in mind thesensitivity of the matter as number of students were named in it.Insofar as the plea of the petitioner that the committee was non-representative and biased, it was her submission that the demand fordemocratization from the JNUSU students Council is not based on anyRule or Statute of the Respondent University. Further, regarding thePetitioner's demand for documents, she reiterated that had thePetitioner appeared/deposed before the committee the same wouldhave been available before her to examine,

17. According to Ms. Routray, at the stage of appeal the decision isto be taken only from record before the deciding Appellate Authority.Rules under the Statute 32(5) state that the punished student has theright to appeal against the punishment and Vice Chancellor is theempowered authority to deal with Appeals. The Petitioner chose notto avail opportunities given to her, both at the stage of enquiry, and atthe stage of Show Cause Notice by wilfully not responding to thesame, hence the Writ Petition on this ground alone is not maintainable.

18. She further stated, the Petitioner is student studying in JNUand resident of Hostel in JNU. The Respondent is Jawaharlal NehruUniversity (JNU) established and incorporated by an Act ofParliament in the year 1996. That at 12 pm on February 09, 2016 theRespondent got to know that some students were planning to host an"anti-national event" in the evening at Sabarmati Dhaba. meetingwas called in the Vice Chancellor's Office, wherein it was discoveredthat peiTnission was sought from the Additional Dean of Students bythe Petitioner on the false pretext of holding poetry readingcompetition at Sabarmati Dhaba. Despite the alleged "permission"immediately being withdrawn by the DOS, the Petitioner canied onwith the event which led to an enormous law and order situation. OnFebruary 11, 2016 forthwith 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'scampus. By virtue of Section 5(10) of the JNU Act read with Statute32(1) of the Statutes of the University-';,:; , " '

"The Vice Chancellor has been vested with all the powersrelating to discipline and disciplinary action in relation tostudents."

She would submit, the HLEC superseded the Proctorial Enquiryvide letter dated February 11, 2016 wherein it is stated that

This Committee supersedes the Proctorial EnquiryCommittee and the earlier notice dated ll"^ February, 2016

of the Chief Proctor stands withdrawn.

Further, the HLEC followed SOP being norms in view of the natureand the need of the enquiry. The terms of reference of the Enquiryentailed formulation of SOP. She stated the SOP norms areessentially analogous to the Norms recommended for Proctorialenquiry. She also submitted, that the 3 member Committee laterexpanded to 5 by the Vice-Chancellor mainly consisted of UniversityProfessors and since it was an internal enquiry of JNU, no third partywas allowed to be present during hearing. Further, no one wasallowed to be represented by third party. The terms of Reference forthe Committee was: ;

(i) To enquire into the incident and ascertain sequence of events.

(ii) Identify any lapses that may have taken place, and

(Hi) On the basis of the findings, recommend action to he initiatedby the University as per its statutes and guidelines.by the University as per its statutes and guidelines.

19. According to her, on February 12, 2016 Office Order. No.l 15/CP/2016 was passed, which stated as follows-

Based on the report submitted by the Chief Security Officer,video clipping of the events and other related documents,the High Level Enquiry Committee, constituted by the Vice-Chancellor, JNU, is of the opinion that printa facieevidence of the occurrence of the following offences exists:-

(i) Misrepresentation of the proposed event as acultural evening although objective was to hold apolitical meeting.cultural evening although objective was to hold apolitical meeting.

(ii) Forcefully holding the event even when thepermission to hold it was withdrawn by the DOS.permission to hold it was withdrawn by the DOS.

(Hi) Creating law and order situation on campus bothat Sabarmati Hostel and Ganga Dhaba.at Sabarmati Hostel and Ganga Dhaba.

(iv) Shouting unconstitutional slogans, and makingderogatory remarks about the nation.derogatory remarks about the nation.

20. She would submit, the HLEC followed Standard OperatingProcedures devised by the HLEC specifically for the said enquiryduring the course of enquiry. The HLEC spent considerable time inexamining all the evidences pertaining to the event which includedtaking written depositions of eye witnesses and security officials,posters, form for seeking permission, examining the video clipssubmitted by JNU Security Office and scrutinizing variousdocuments/posters related to this incident. The video submitted to thecommittee by the CSO was duly authenticated by Governmentapproved agency: Truth Labs, Bangalore. Subsequently to enquiryprocedure, the HLEC recommended that the Petitioner be chargedunder Category II of (Rules of Discipline and Proper Conduct ofStudents of JNU) of the students of University and imposed fine ofRs.20,000/-. The HLEC submitted its report along withrecommendations to the Vice Chancellor on March 11, 2016.

21. According to her, the Chief Proctor, after perusing the report ofthe HLEC, issued Show Cause Notice on March 14, 2016 along withan extension dated March 16, 2016 and copy of HLEC report to thePetitioner. The Respondent subsequently on April 25, 2016, after morethan month, passed an office order wherein it was stated that-

With reference to the 9 February 2016 incident of JNUcampus, the High Level Enquiry Committee (HLEC) hasfound Ms. Anwesha Chakraborty (Registration Number-34427, Enrolment No: 15/62/MS/038, Year of Admission:2015, M.Phil./PHD Students, Centre for Political Studies,School ofSocial Sciences) guilty on the following counts.

The University 'Rules and discipline and proper conduct ofstudents of JNU', Clause 3- 'Categories of misconduct andindiscipline', Category-II, Sub- Category (xxv) prohibits'Any other act which may be considered by the VC or anyother competent authority to be an act of violation ofdiscipline and conduct'.

^As per the HLEC recommendation, Ms. AnweshaChakraborty has been found guilty of

a) Lending her name in the poster titled "Against theBrahmical collective conscience! Against the judicial killingof Afzal Guru and Maqbool Bhatt "in the name ofCultural Evening thus arousing communal and castefeelings

This act on the part of Ms. Anwesha Chakrahorty is seriousin nature, unbecoming of student of JNU and calls forstringent disciplinary action against her. In view of this andkeeping her career in mind, the Vice Chancellor has taken asomewhat lenient in the matter.

Ms. Anwesha Chakrahorty is fined Rs. 20,000/- (Rupeestw.enty thousand only) and is also warned to be careful andnot to get involved in such incidents in the future.Othei'wise, stringent disciplinary action will be takenagainst her. She is directed to deposit the fine by IS May2016 and show the proof thereof to this office, failing whichthe hostel facility will be withdrawn with immediate effectand further registration will not be allotted.

22. Subsequently on May 02, 2016, the Petitioner in her letter tothe Vice Chancellor appealed to withdraw the Office Order datedApril 25, 2016 wherein she stated that-y)' '

This charge against me is completely false and without anybasis, as the object of the cultural evening was to inspirestudents to oppose caste oppression and communal feelings.

According to Ms. Routray, the purpose of the event mentioned in thebooking requisition form and in the poster were different. Thebooking requisition form stated that permission was sought to hold a"Poetry Reading -A Country Without, Post Office at SabarmatiDbaba" on 9 Februaiy' 2016 from 5 pm- 7:30 pm whereas the Poster

stated-

"Against the Brahmanical Collective Conscience! Againstthe judicial killing of Afzal Guru & Maqhool Bhat! Insolidarity with the struggle of the Kashmiri people for theirdemocratic right to self-determination We invite you fora cultural evening of protests with poets, artists, singers,writers, students, intellectuals, cultural activists 9""February, Tuesday, 5pm, Sabarmati Dhaba. There will alsobe an art exhibition & and photo exhibition portraying thehistory of the occupation of Kashmir & the people'sstruggle against it. We invite everyone to join us in protest,in rage against the occupation and in solidarity with thevaliant people of Kashmir.

23. She states, the Petitioner's name was mentioned in the posteralong 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 againsther in the Order dated April 25, 2016 regarding her name on thePostei. The Chief Proctor on May 03, 2016 addressed letter to thePetitioner wherein it was stated that-

With reference to dated 2 your representation May

it is informed that Chief Proctor desired tomeet you and,discuss.

24. She submitted, this Court vide Order dated May 13, 2016

W.P.(C) No. 7914/2016

Page 17 of 35

directed that the Order shall not be given effect till the appeals of thepetitioners are heard and disposed of. Subsequently, the Petitionerwas given provisional admission to continue in the present semesterkeeping m view the Order dated May 13, 2016 by the Delhi HighCourt.

25. That the Respondent finally issued the Office Order.No.201/CP/2016 dated August 22, 2016 wherein it was stated that-

Evidence

1. She lent her name to be in an printed objectionableprinted objectionableposter titled 'Against the Brahmanical collectiveconscience! Against the judicial killing ofAfzal Guru andMaqbool Bhatt... ' in the name of cultural evening thusarousing communal and caste feelings.conscience! Against the judicial killing ofAfzal Guru andMaqbool Bhatt... ' in the name of cultural evening thusarousing communal and caste feelings.

Recommendations jj': fjff i ,

Ms. Chakraborty did not make any specific appeal toabsolve herself from the charges made by the HLEC. Onthe contrary she questioned the formation of HLEC itselfand asked for documents and evidence related to herinvolvement in the event. The Committee thereuponconsiders the recommendations of the HLEC on theaforesaid student to be highly justifiable. Therefore, thepunishment recommended by the HLEC i. e. "A fine ofRs.20,000 "stands as it is. In addition to it, she has to submit

an undertaking in prescribed format to the ChiefProctor.

26. She would also state, without prejudice to the fact that theallegations levied against JNU authorities in her Affidavit datedSeptember 05, 2016 are wrong and denied. The Petitioner stated that-

They told me my offence lies in agreeing to 'cultural

event which was 'planned' to raise 'anti-national'feeling within the University space. On saying I findnothing wrong in giving m name to poster, which is theonly evidence against me, I was asked whether I willparticipate in any such activities afterwards

On further refusing to answer this I was told that I am not

being 'co-operative' with the Committee. Then I wasgiven pile of files to look into in the next room with oneof the members ofHLECforcis long as it would take 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 notdeny giving her name in the Poster which led to law and ordersituation on Februaiy 09, 2016 nor does she express regret for thesame.

27. That the University's autonomy mean its right of self-government particularly, it's right to carry on its legitimate activitieswithout interference from outside That the any authority. petitioner

against whom charges were framed was given adequate opportunity todefend herself, and the committee followed the rules of natural justicewhile holding the enquiry. That it is settled law that matters fallingwithin the jurisdiction of educational authorities should normally beleft to their decision and this Court would not interfere unless it thinksit must do so in the interest of justice. This Court in JawaharlalNehru University V Flora Gupta, LPA 570/2012 & CMNo.l4010/2012hQ\dth2it-

The grounds on which administrative action is subject tocontrol by judicial review are, "illegality"; "irrationality"and "procedural impropriety". The Court will be entitled tointerfere in such matters if the decision is tainted by anyvulnerability like illegality, irrationality and proceduralimpropriety. To be "irrational" it has to be held that onmaterial, it is decision "so outrageous" as to be in totaldefiance of or moral standards. If the islogic power •• • t'>itw,'n-"V--"exercised on the basis of facts which do not exist havingwhich are patently erroneous, such exercise of power shallbe vitiated. Exercise of will be set aside if there ispower manifest error in the exercise or such is power manifestlyarbitrary. To arrive at decision on "reasonableness " thecourt has to find out if the have left out arespondents relevantfactor or taken into account irrelevantfactors.

28. She would state, the Respondent's action is within theirauthority and exercise their judgment in good- faith, and followed the

Page 20 of 35

applicable laws. The constitutional provisions, the provisions of theAct, the Statute and the Ordinances and the principles of naturaljustice have been complied with by the Respondent. The Petitionerwas served with notices at her hostel, in her various addresses and wasasked to show cause and was also given opportunity to defend herselfbefore the committee. The Petitioner was enquiry given ampleto defend but she herself lost the not evenopportunity opportunity by responding to the simple queries raised by the Appellate Committee.

29. That the Submissions made and relied inLegal judgments upon Umar Khalid V. JNU, W.P. © 7826/2016 and Anirban BhattacharyaV. JNU, W.P. © 7828/2016 may be read as part and parcel of thepresent submissions. The judgments arq:- /

sL" , A'

(i) K.L. Tripathi v. State43;

and Ors 1984 (12) SCC

(ii) State of Gujarat v. Pagi Bhum Bhai Rumal Bhai AIR 1969Gujarat 260;

(Hi) Ajeet Seeds Ltd. V. K. Gopal Krishnaiah 2014 (1) SCC 685;

(iv) Chief Commissioner of Income Tax (Administration)Bangalore v. V.K. Gururaj and Ors. 1996 (7) SCC 275;

(v) State ofPunjab v. Bakhshish Singh 1997(6) SCC 381;

(vi) Suresh Koshy George v. University of Kerala AIR 1969 SC

(vii) State Bank ofPatiala v. S.K. Sharma 1996 (3) SCC 36;

(viii) Ram Chander Roy v. Allahabad University AIR 1956 ALL 40;

(ix) V. Ramana v. APSRTC & Ors 2005 (7) SCC 335;

(x) M. V. Bijlani Vs. UOI & Ors. (2006) 5 SCC 88.

In view of the above facts and circumstances, she prayed for thedismissal of the writ petition.

30. Having heard the learned counsel for the parties and perused thewritten arguments/submissions submitted by the counsels, it is notedthat the subject matter of this petition is, the orders passed by theCompetent Authority whereby penalty in the nature of fine ofRs.20,000/- was imposed on the petitioner, which order was upheld bythe Appellate Authority with direction to file an undertaking. Theenquiry relates to the events held on February 09, 2016 at theUniversity Campus. The grounds of challenge by the petitioner arethat the same has been held in violation of Statute 32(5) of the Statutesof the University; proceedings have been held in violation ofprinciples of natural justice; the action is actuated by malafide as theUniversity is also reviving stale proceedings by issuing notice to someof the concerned students in respect of incidents of 2015. On areading of order dated August 22, 2016, there is no connectionbetween the findings of fact and violation of Rules of the respondentUniversity. The orders have been issued without giving the relevant

material relied upon by the respective Authorities. The HLEC hasprejudged the petitioner and the action taken on the basis of the reportof the Committee is not impartial and unbiased. The HLEC did noteven reply to the petitioner's request for documents, on the basis ofwhich she has been found guilty. The impugned action has seriousconsequences for the petitioner's academic career. No Rule/Statute orOrdinance, under which petitioner has been punished has beenstipulated. The Appellate Authority premised its decision on therefusal of the students to sign vague undertaking that would haveresulted in severe curtailment of their fundamental rights.

31. The respondent has justified its action by contending that theEnquiry Proceedings were held by following the principles of naturaljustice and the Rules/Statutes. It is the petitioner, who failed to comeforward and depose before the Committee. That apart, the respondenthas also highlighted the seriousness of the charges for which thepetitioner was held guilty. That apart, the appellate proceedings wereheld after giving due opportunity to the petitioner to inspect thedocuments and after inspection of the documents and upon hearingand inability of the petitioner to answer the queries put by theAppellate Authority, the appellate order was passed.

32. There is no dispute that the petitioner had filed an Appeal datedMay 02, 2016. It is also conceded fact that the Vice Chancellor-Appellate Authority had held its meeting on July 04, 2016. There isalso no dispute that the petitioner was shown the record of the enquiry.The parties are at variance about the duration for which the record was

shown. It is conceded fact that hearing was given to the petitioneron the same day, which resulted in the passing of the appellate orderon August 22, 2016.

33. Clause 12 of the Norms and Procedure followed during enquirystipulates that every punished student has right to appeal. In the casein hand, after this Court had passed the order on May 13, 2016 in theearlier writ petition filed by the petitioner being W.P.(C) No.4390/2016, the respondent University issued communication datedJune 24, 2016 asking the petitioner to appeal to the Vice Chancellorand depose on July 04, 2016. , Thdrconimunication does not refer tothe fact that the petitioner shall' be given the relevantrecord/documents for inspection. Be that as it may, the learnedcounsel for the parties agree that; the files/records/documents beforethe HLEC were given to the petftipner o4:July 04, 2016 to enable herto peruse the same and make-suiDmission's .:on the same day. Evenassuming, three hours wer^^^gr^td^tb/^^petitioner to inspect thedocuments on July 04, 2016, some tiihe need to have been granted tothe petitioner to apply,her mind on the evidence so noted by herduiing the inspection, which was against fter-and to make an effectiveappeal. Surely, for such purposes, she may have required reasonabletime to prepare her case, which may include seeking legal advice. Theprocedure evolved by the Appellate Committee to allow inspection ofthe documents/i ecords and hearing her could not be in conformitywith the principles of natural justice and the law laid down by theSupreme Court in the case of Associated Cement Company Ltd. v.Workmen and another (1964) 3 SCR 652, wherein the SupremeCourt was considering an appeal arising out of an industrial disputebetween the appellant and the respondent workman with regard todismissal of five workmen employed by the appellant company. Oneof the issue was that before the enquiry was actually held on June 11,1952, notice was not given to Malak Ram, one of the workmen tellinghim about the specific date of the enquiry. The Supreme Court heldthat failure to intimate to the workman concerned about the date of theenquiiy 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 fairif the workman is told as to when the enquiry is going to be held sothat he has an opportunity to prepare: .himself to make his defence atthe said enquiiy and to collect such evidence as he may wish to lead insupport of his defence. The Supreme' Court held, on the whole, itwould not be right that the,-worl^ah^shptild be called on any daywithout previous intimation .'; and rthe i enquiry should beginstraightaway. The Supreme''Court y^held^^ such course shouldordinarily be avoided in holding domestic enquiries. In other words,the Supreme Court has held that am incurnbent should be givensufficient opportunity/time to consider the evidence, which has comeagainst him and to collect evidence in support of his defence. In thecase in hand, no such time was given to the petitioner. That apart, ifthe material is being shown to the petitioner, on July 04, 2016, surely,some time should have been given to the petitioner to enable her tosupplement her appeal already filed by her on May 02, 2016. Thiswould be in conformity with the concept of fair play in action, which

is the basis of natural justice. That apart, even in these proceedings,the respondent has not filed, the complete record of the HLEC. Infact, in some of the connected petitions, stand has been taken in thewritten submissions that only certain documents relied upon by HLECwere filed before this Court and the entire evidence, documents,notices and proceedings are maintained by the respondent in itsofficial files. The same are available for any other scrutiny as andwhen the same is requisitioned before the Court. Even if somedepositions were filed along with the written arguments in someconnected cases, the same are in Hindi. Even otherwise, the HLECreport refers to deposition of some pye witnesses, which are in thedeposition files. It is not clear, who thPsPiWitnesses are, who are beingreferred to. All the evidence,, documents, notices and proceedingsbeing in the official files, there Was no occasion for this Court/counselfoi the petitioner to Ibokv^.vintd; . the same for properappreciation/justification of thP imp^r^^^^

34. That apart, I note, the petitioner, in her appeal dated May 02,2016 has raised several grounds. perusal of the order dated August22, 2016, it is seen that the Appellate Authority has not dealt with thesaid grounds. The Supreme Court in the case reported as (2013) 6see 530 ehairman, Life Insurance eorporation ofIndia and othersV. A. Masilamani, in para 19 held as under

"19. The word "consider", is of great significance. The dictionarymeaning of the same is, "to think over", "to regard as", or "deem tobe ". Hence, there is clear connotation to the effect that, there must

be active application of mind. In other words, the term "consider"postulates consideration of all relevant aspects of matter. Thus,formation of opinion by the statutory authority, should reflect intenseapplication of mind with reference to the material available on record.The order of the authority itself, should reveal such application ofmind. The appellate authority cannot simply adopt the languageemployed by the disciplinary authority, and proceed to affirm itsorder. (Vide: Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006)11 see 147; and Bhikhubhai Vithlabhai Patel & Ors. v. State ofGujarat & Anr., AIR 2008 Se 1771)., .

In view of the aforesaid judgment of the'Supreme Court, it is expectedthat the Appellate Authority should have 'disposed off the appeal by areasoned and speaking order; This I say so, there is nothing in theRule, relating to appeal which says other\yise i.e it is not necessary forthe Appellate Authority to pass UTeasohed'brd

35. Insofar as the plea of Rajkotia that the ViceChancellor having involved in the process of enquiry at the firstinstance, cannot sit in appeal against his ownArder is concerned, thesame is without any merit for more than one reason. Firstly, thepetitioner by appearing before the Appellate Authority on June 16,2016 has submitted to the jurisdiction of the Appellate Authority i.e.the Vice Chancellor. the vires of Rule 12 anSecondly, contemplating appeal to the Vice Chancellor is not under challenge.

36. Insofar as the judgments relied upon by Ms. Routray areconcerned, in K.L. Tripathi (supra), the issue, which fell for

consideration was with regard to challenge to the departmentalenquiry by an employee on the ground that he was not providedopportunity to cross examine. The Supreme Court held that in theabsence of any lis as to the facts, allegations having been not disputedby the delinquent officer, no prejudice has been caused,

37. The issue, which has been considered by me in theaforementioned paras is only with regard to, whether sufficientopportunity was given to the petitioner to inspect the documents at theappellate stage and then submit an appropriate appeal after theinspection, so as to make the appellate proceedings meaningful andpuiposeful. Hence, the judgrrient would have no relevance.

3 8. Insofar as the judgment in' the base; of State of Gujarat v. PagiBhurabhai Rumalbhai (supra), is concerned, in the said case theGiqarat High Court held that tiie\d&c[uent has no right to seek apersonal hearing at the appellate • sta^k-^^ the case in hand, thepersonal hearing having beeh^agf^d-fb^aMTgranted by the University,it cannot be contended Ms. that the wasby Routray personal hearing not required. I

39. In Ajeet Seeds Limited (supra), para 10 on which the reliancewas placed, relates to conclusion with regard to Section 114 of theEvidence Act, which enables the Court to presume that in commoncourse of natural events, communication made would have beendelivered at the address of the addressee. reference was made toSection 27 of the General Clauses Act, which gives rise topresumption that service of notice has been effected when it is sent to

the coiTect address by registered post. The said judgment has noapplicability on the limited issue being considered and decided by thisCourt.

40. In Hira Nath Mishra and others v. The Principal, RajendraMedical College, Ranchi and another (1973) 1 SCC 805, theSupreme Court was concerned with case where the appellants, themale students of Medical College lived in the College hostel. Aconfidential complaint was received by the Principal from thirty sixgirl students residing in the Girls Hostel of the College alleging thatthe appellants with some others at late night had entered into thecompound of the Girls Hostel and walked without clothes on them.The Principal constituted an Enquiry Committee consisting threeMembers of the staff. The identification through photographs wascarried out and the Girls by and large could identify the appellantsfrom the photographs. The appellants were called before theCommittee one after the other. They were explained the contents ofthe complaint. Due care was taken not to disclose the names of theGirls, who made the complaint. The appellants denied the charges andsaid they were in the Hostel at that time. The Supreme Court held asunder:-

(i) The complaint made to the Principal related to anextremely serious matter as it involved not merelyinternal discipline but the safety of the girl studentsliving in the Hostel under the guardianship of thecollege authorities. These authorities were in locoextremely serious matter as it involved not merelyinternal discipline but the safety of the girl studentsliving in the Hostel under the guardianship of thecollege authorities. These authorities were in loco

parentis to all the students-male and female who wereliving in the Hostels and the responsibility towards theyoung girl students was greater because theirguardians had entrusted them to their care by puttingthem in the Hostels attached to the college. Theauthorities could not possibly dismiss the matter as ofsmall consequence because if they did, they would haveencouraged the male student rowdies to increase theirquestionable activities which would, not only, havebrought bad name to the college but would havecompelled the parents of the girl students to withdrawthem from the Hostel and, perhaps, even stop theirfurther education. The Principal was, therefore, underan obligation to make suitable enquiry and punishthe miscreants. .p M'f'-.);-'-

(ii) The Police could not be called in because if aninvestigation was started the female students out ofsheer fright and harm to their reputation would nothave cooperated with the police. Nor was an enquiry,as before regular tribunal, feasible because the girlswould not have ventured to make their statements inthe presence of the miscreants because if they did, theywould have most certainly exposed themselves toretaliation and harassment thereafter. The veryreasons for which the girls were not examined in the

presence of the appellants, prevailed on the authoritiesnot to give copy of the report to them. It would havebeen unwise to do so.

(Hi) Therefore, the authorities had to devise just andreasonable plan of enquiry which, on the one hand,would not expose the individual girls to harassment bythe male students and, on the other, secure reasonableopportunity to the accused to state their case. Thecourse followed by the Principal was wise one.

(iv) Under the circumstances of the case, therequirements of natural justice were fulfilled, becauseprinciples of natural justice are not inflexible and maydiffer in different circumstances. ",;

From the above, it is noted that, keeping in view the nature ofallegations against the male students; to protect the identity of thecomplainants, the girl students, the Supreme Court had upheld, thenature of enquiry conducted by the University as being in compliancewith the principles of natural justice. The aforesaid judgment of theSupreme Court has no applicability in the facts of this case and also onthe limited issue that is being decided by this Court.

41. Insofar as the judgment of the Supreme Court in the case ofSuresh Koshy George (supra) is concerned, in para 7 on whichreliance was placed by Ms. Routray, the Supreme Court wasconsidering submission that the Vice Chancellor had not made

available to the appellant copy of the report submitted by the InquiryOfficer before asking him to make representation. The SupremeCourt rejected the contention by holding that the enquiry was heldafter due notice to him and in his presence. He was allowed to crossexamine the witnesses examined in the case and he was permitted toadduce evidence in rebuttal of the charge. The Supreme Court alsoheld, no Rule was brought to its notice, which stipulated the supply ofreport. The Supreme Court also observed that it was not the case ofthe appellant that he had asked for the copy of the report, which wasdenied to him. The judgment .relied upon by Ms.Routray isdistinguishable, inasmuch as - the petitioner did not participate in theproceedings/the proceedings were held-invher absence. Further, theAppellate Authority itself has,.offered to allow inspection of thedocuments/record of HLEC. ' The^ petitioner had asked for thedocuments/record/material .in hep qppeal.^d^^^ May 02, 2016. TheAppellate Authority having alljowed, thej inspection, reasonable timeshould have been given to thefpetitip^^^ supplement the appealalready filed by her on May 02, 2016. The judgment has noapplicability, at least on the limited issueThat js being decided by thisCourt.

42. Insofar as the judgment of the Allahabad High Court in the caseof Ram Chander Roy (supra) wherein reliance was placed on paras24 and 25, relates to the power of the Vice Chancellor to impose anypunishment in maintaining the discipline of the University. There isno dispute on the said proposition of law. Insofar as the plea that the

right of cross examination was denied is concerned, the High Courtheld that it was not convinced that in case where Head of anEducational Institution takes disciplinary proceedings, it is necessarythat he must give an opportunity to the student to cross examine thewitnesses, who may be examined by him in order to satisfy himselfthat an occasion has arisen for taking disciplinary action against him.In matter of discipline, the Head of Educational Institution does notact as judicial or quasi judicial Tribunal. The Disciplinary powervested in any Officer or the Head of an Institution is power which isabsolutely necessary for and ancillary to the exercise of administrativefunctions in that capacity. Suffice to state, 32(5) of the Statutes of theUniversity lays down the procedure. In any case, as stated above, on alimited issue, which is being decided, this judgment would not haveany applicability.

43. In State Bank of Patiala and Others v. S.K. Sharma (supra),

Ms. Routray who relied upon para 35 to contend that no prejudice hasresulted to the petitioner on account of non furnishing him the copy ofthe statements of witnesses as it cannot be said that he did not have afair hearing is concerned, there is no dispute, in view of the position oflaw noted above, but the limited time given by the Appellate Authorityto the petitioner to inspect the documents/material/record and to give ahearing on the same day would not be in conformity with theprinciples of natural justice. Surely, the Authority empowered underthe Statute is required to give reasonable opportunity to make the

very purpose of the power being exercised by such Authoritymeaningful.

44. Insofar as State Bank of Punjab and others v. BakhshishSingh (supra) is concerned, there is no dispute that the Court cannotsit as an Appellate Authority over and above the conclusion of theDisciplinary Authority that particular act was gravest act ofmisconduct warranting dismissal. As stated above, on the limitedissue that is being decided by this Court, this judgment would have norelevance. - .

45. Insofar as Chief Commissioner of Income Tax(Administration), Bangalore v. V.K. Gururaj and others (supra) isconcerned, the said judgment is on the proposition of deemed service,which in any case has no applicability for the reasons already stated.

46. Insofar as the judgment in the case of V. Ramana v. APSRTCand Ors (supra) is concerned, the same relates to the issue of judicialreview with regard to punishment. The same has no applicability inview of limited issue that is being decided by this Court.

47. Insofar as the reliance placed by Ms. Routray on the judgmentof M. V. Bijlani (supra) is concerned, in view of the limited issue thatis being decided by this Court, this judgment would have norelevance.

48. In view of my above discussion, the writ petition is allowed tothe extent that the Appellate Order dated August 22, 2016 is set asideand the matter is remanded back to the Appellate Authority with

direction to grant an opportunity of inspection to the petitioner, therecord of the HLEC for two continuous days during office hours onlyby notifying the date and time to the petitioner for the same and uponsuch inspection, the petitioner shall have one week time to file aSupplementary Appeal, upon which the Appellate Authority shall givea hearing to the petitioner on date and time fixed by the AppellateAuthority, who thereafter shall, by considering the appeal(s) alreadyfiled by the petitioner and the Supplementary Appeal, if any, pass areasoned order as expeditiously as possible preferably within sixweeks thereafter. Till such time, the order dated April 25, 2016 shallnot be given effect to. It is also made clear in view of the undertakinggiven by the petitioner in W.P.(C) No. 4390/2016 the petitioner shallnot indulge in any strike or dhama or agitation or coercive action infuture in connection with the issue, till such time the proceedingsbetween the parties attain finality. No costs.

CM No. 32751/2016 (for stavV

Dismissed as infructuous.

OCTOBER 12, 2017/ak

V KAMESWAR RAO, J