THE BOARD OF HIGH SCHOOL & INTER MEDIATE EDUCATION U.P. versus BAGLESHWAR PRASAD & OTHERS

~ s.c.:tt. SUPREME CoURT REPORTS

THE BOARD OF HIGH SCHOOL & INTER-MEDIATE EDUCATION U. P.

BAGLESHWAR PRASAD & OTHERS (P. B. GAJENDRAGADKAR, K. C. Das GUPTA, and RAGHUBAR DAYAL, JJ.)

Domestic Tribunal-Educational body-DiBciplinary action -Interference by High Gourt-OonBtitution of India, Art.226. .

The appellant Board cancelled the declaration of the result of the respondent in the High School . Certificate Examination held in 1960 accepting the findings of the sub-committee appointed by it to enquire into the charges made against the respondent and another candidate of having used unfair means in answering the English, Mathematics and Hindi papers. The charges were based upon the fact that in the Hindi 3rd paper sot at the said examination, the respon· dent gave wrong answers to Question No. 4 in precisely the same form in which the answers had been given by the candidate whose Roll number was consecutive with that of the respondent. The High Court interpreting the charge as confined to that the respondent had copied either from the answer book of the candidate bearing the consecutive Roll Number or from common source held that the findings of the enquiry committee were based on no evidence and quashed the cancellation of the result. On appeal by special leave.

Held, that in the circumstances of the case, the identity of the wrong answers given by the respondent with that of the other candidate bearing the consecutive Roll Number rendered the charge of the respondent having employed unfair means highly probable and that the findings of the enquiry committee based upon such probabilities and circums-tantial evidence could not be said to be based on no evidence as in such matters direct evidence quite often cannot be available.

Held, futher, that in dealing with cases like those of ..., educational institutions dealing with matters of discipline like employing unfair means, the problem faced by the educational institutions should be appreciated by the High Court and so long as the enquiry held is fair and affords the candidate an opportunity to defend himself, the matter should

A"lust 27

1962 /J1ard •J llith School k I rittrmediat1 Etuc•tion U.P . •• Bsgleahwar P1a1ad

GoJ•ndragadka• J.

not be examined with the same strictness as applicable to criminal trials in the ordinary courts of law. ·

C:rv1L APPELLATE JuRISDICTION: Civil Appeal No. 328 of 1962 ..

Appeal by special leave from the judgment and order dated September 4, 1961, of the Allahabad High Court in Civil Misc. writ No. 3469 of 1960.

K. L. Misra, Advocate-General for the State of U. P., 0. B. Agarwala, K. 8. Hajela and 0. P. Lal, for the appellants.

8. P: Sinha and M. I. Klwwaja, for respondent

1962. August 27. The Judgement of the Court was delivered by

GAJENDRAGADKAR, J.-This appeal by special leave arises out of Writ Petition filed by the respondent Bagleshwar Prasad against the Board of High School and Intermediate Education, U. P., Allahabad, and its Secretary, appellants 1 & 2, and· another. By his petition, tp.e respondent challen-ged the validity of the order passed by appellant No. 1 on December 5, 1960, cancelling the respon-dent's result at the High School Exmination held in 1960. It appears that the respondent appeared for tho said examination from the Nehru Inter-mediate College Centre, Bindki. He was declared '<:"' to have passed the said examination in the II Divi-sion with distinction in Art. Thereafter, he joined Intermediate first year class in the Kulbaskar Ashram Agriculture College at Allahabad. On the 3rd September, 1960, he received letter from the Principal, Adarsh Higher Seconda.ry School, Kora Jahanabad, from where he had appeared for.,. the High School examination, calling upon him to appear before :Sub-Committee to answer the charge of having used unfair means in English,Mathematics and Hindi papers. Accordingly, he appeared before the said Sub-Committee. charge was given to him and his explanation was obtained on the said charge. This che.rge was based on the fact that in Hindi 3rd paper set at the said ex'l.mi-nation, the respondent had given wrong answers to Question No. 4 in precisely the same f•>rm in which the said answers had been given by candidate whose Roll No. was 9!733. The respondent's Roll No. was 91734. The respondent was shown the identical wrong answers to the said Question which were found in the two papers, and he was asked to expla.in about the said identity of the wrong answers. He admitted thaii the wrong answers appeared to .be identical, but he denied that he had used any unfair means. The Sub-Committee however, was not satisfieu with the explanation and reported that both the respondent and the candidate whose Roll No. was 94:733 had used unfair means. As ri:isult of the report ma.de by the Sub-Com-mittee, the first appellant passed an order C>tncel-ling the results of both the candidates. Both the said candidates disputed the val;dity of the said order in the Allahabad High Court. The petition filed by the candidate whose Roll No. was 94733 was dismissed, but that of the respondent was allo. wed, and the impugned order passed by appellant No.l oancelpng the result of the respondent in the High School examinaton for 1960, has been set aside. It is .against this order that the appellants have.come to this Court by special leave.

From the petition filed by the respondent in the High Court (W. P. No. 3469 of 1960) it appe-ars that he challenged the validity of the impugned order on several grounds. The principal contentions raised by the petitioner a.gains t the competence and the authority of appellant No.l and against the regularity and fairness of the enquiry held, arose for decision before the High Court in the Qompanion W. P. No. 3196 of 1960 also. The High . .

Boa;iof High School and · Intarmedia'ei. Eduo>tion·'U. p::., v ,

B.igleshiiJa;.Pia.-i··t:\. •Jendra~ 24/(ftr J . ,

-.--Buardof lllgh School and lni.111,.diat 1 Bdut11ion U.P. v. 81gl1s'*'a.J Pra~ad G~'"'"':adtar J.

770 SYPREME COURT REPOR'l'S [1963]

Court rejected the said contentions of law in that W. P. and for the reasons recorded in the judgment in that petition, the said contentions were rejected even in the present petition. Thus, the challenge to the validity of the order made on points of law was not sustained.

The High Ci;mrt then proceeded to examine the narrow ground of attack against the validity of the order which was made on the basis that the impugned order was not supported by any evidence at all. It appears from the judgment of the High Court that the High court was inclined to accept this argument and it has set aside the order on the ground that it is not supported by. any evidence. The correctness of this finding is seriously disputed before us by the learned Advocate:General who appears for the appellants.

It is common ground that the proceedings taken against the respondent in respect of the unfair means alleged to have been adopted by him at the examination, are in the nature of quasi-judi-cial proceedings, and as such, in proper case, orders •passed as result of the said proceedings would be liable to be challenged under Art.226 of the Constitution. It is also common ground that the High Court would be justified in quashing the impugned order if it is satisfied that the said order is not based. on any evidence at all. An order passed by Tribunal holding quasi-judicial enquiry which i~ not supported by any evidence, is an order which is erroneous on the face of it and as such, id liable to be quashed by the High Court in exercise of its high prerogative jurisdiction to issue writ under Art. 226.

In the present case, the High Court has found

that the conclusion of the enquiry Committee that the respondent had copied either from the answer book of tqe candidate bearing Roll ~o.94'13~ oi;

3 S.C.R. SUPREME COURT REPOR 1'S

from oommon source, was not supported by any evidence. In coming to this conclusion, the High Court has assumad that the charge against the res-pondent was that he had copied from the candi-date bearing Roll No. 94733. Having made this assumption, the High Court has observed that there was no charge against the respondent that he con-nived in the act of copying by the other candidate from his answer-book, audit has added that there is no evidence in proof of such connivance. The High Court has also stated that no evidence had been shown to justify the allegations that any out-sider had helped the candidate, including the res-pondent, That, in brief, is the genesis of the final conclusion of the High Court.

It appears that the High Court was in error in assuming that the only charge against the res-pondent w11.s that he had copied from the paper of the cadidate bearing Roll No. 94733 and this error is basically responsible for the other observations made by the High Court. The translation of the charge as it has been printed in the record before us, no doubt, seems to support the assump-tion made by the High Cour:; in regard · to · the nature of the charge. But the charge was framed in Hindi and it is common ground b~fore us that the Hindi charge has not been. properly translated from the record when it seems to show that what was alleged against the respo,ndent was only that he had copied out from candidate bearing Roll No. 94733. The.chll.rge, in terms, was that having regard to. the idtintity of the mistaken answers, the appre-hension was that there had been copying, and that is very different from saying that the only charge was that the respondent had copied from the other candidate. This position is made very clear when we consider the explanation given by the respon-qeQt. In I:iis explanation, the resllondent had

196i Bfl(Jirdof High s.hool & lnt,,m1diaC. Edu<alion U:P. v. Bagl,,hwar P1ased Gajendragad!ar-J,

Board of iligh Sci.ool di lnlnme<Jiate Educa.lion U.P . •• Bqg! e"1wtir PrasaJ

stated that he had not copied out from the answer. book of any candidate, nor had he allowed anyone to copy out from his answer-book, so far as he could. He admitted that the mistaken answers in the two papers were identical and he pleaded that he could not say any thing as to why this happened. He was also asked whether he had got any help from outside and he gave an answer in the negative. It would thus be seen that at the enquiry, the charge against the respondent was, either that he copied from candidate bearing Roll No. 94733, or that he connived at the said candi-date copying from his answer-book, or that both of them had copied from common source. In either case, it would amount to the adoption, of unfair means. Therefore, in our opinion, the High Court was in error in assuming that the charge was very narrow and did not include the two other alternatives on which the adoption of unfair means was sought to be established.There is another circumstance which is relevant and significant and that has been ignored by the High Court in dealing with this petition. It appears that at the examination held at Bindki Centre, unfair means wer11 adopted on very large scale by large number of students and the exami· nation appears to have been conducted in an atmosphere which was not at all congenial to the enforcement . of the discipline which has to be ovserved in conducting examinations. It appears that there are rivalries and party politics in,the Municipal Board of Bindki that runs the institu-tion at which this exanination was held, and there are rivalries and party politics even amongst the members of the staff. The members of the Munici-pal Board and other influential people of the locality bring undue pressure on the Principal and the Invi$ilators to help their warqs or tile warqs

3 S.C.R. SUPREME COURT REPORTS

of their friends and relatives in the Board's Exami-nation. As result of this unhealthy atmosphere, the Centre at Bindki for High Sohool examination had been abolished for some years, but on account of public pressure it was re-started in 1960, and the result was very unfortunate.

It also appears that on the day of English paper, while students were answering the paper in Room No. 3, an answer paper by some outsider was dropped into the room 15 minutes before the time to answer"' questions was over. This paper was thrown in room No. 3 from room No. 18. It was typed paper giving answers to all the Questions. The Assistant teacher, Khajuha, who was one of the Invigilators, complained that the Parcha was typed in the office of the Superintendent of the Centre, but this allegation was denied. Indeed, from the reports made by the invigilators and the findings made by the Enquiry Committee, it appears that the Invigilators themselves were so much frigh-tened by the prevailing rowdyism and by pressure from influential people that they found themselves powerless to maintain discipline in thE! examination hall. It is, therefore, not surprising that some in-vigilators could not prevent copying and in fact, six of them had to be warned to be careful in future.

The report· of the enquiry committee also shows that the complaints which they were to investigate referred to copying on large scale in several papers besides Hindi, and it is after exa· mining all the complaints in the light of the evi-dence available to them that the Committee made its final report; and in that report, it held that the respondent and candidate bearing Roll No. 94733 were guilt,! of having used unfair µieans,

1901' Board.of: High S.:hool &: · lnterm1diare · Edut:alion U~P~· ·, Vo 11.agt,.!npar i'10~a4

Bo"rdof H;gh SohMJI &> lnl1rm1diote Educ1tion U.P. •• Bag/eshwar Pro.aad

In dealing with the question as to whether the Committ<;ie was justified in coming to this con· clusion against the respondent, it would not be reasonable to exclude from consideration the cir-cumstances under which the whole enquiry came to be held and the general background of the pre· vailing disturbed and riotous atmosphere in the Examination Hall during the d11.ys that the High School Examination was held at the Centre in 1960. Unfortunately, the High Court has ignored this background altogether.

Before the High Court, statement was filei showing the seating arrangement in Room No. 10 where the respondent was sitting fm· writing his answers. It appears that he was No. 3 in the 3rd row, whereas the other candidate with Roll No. 94733 was No. 4 in the second row. The High Court was very much impressed by the fact that the respondent could not have looked back and copied from the answer· book of the other candidate, and the High Court did not think that there was any evidence to show that ~he other candidate could have copied from the respondents paper with his connivance. We have looked at the incorrect answers ourselves and we are not prepared to hold that tha idtontical incorrect answers were given by the two candidates either by accident or by coincidence. Some of the incorrect answers, and, particularly, the manner in which they have been given, clearly sugg~st that they were the result of either one candidate copying from the other, or both candidates copying from common source. The significance of this fact has been completely missed. by the High Court. The question before the Enquiry Committee had to be decided by it in the light of the nature of the incorrect answers themselves, and that is what the Enquhy Committee has done, Tt would, we think,

3 S.C.R. SUPREME COURT REPORTS

be inappropriate in such case to require direct evidence to show that the respondent could have looked back and copied from the answer written by the other candidate who was sitting behind him. There was still the alterantive possibility that the candidate sitting behind may have copied from the respondent with his connivance. It is also not unlikely that the two candidates may have talked to ea.ch other. The atmosphere prevailing in the Examination Hall does not rule out this possibility. These are a~l matters which the Enquiry Committee had to consider, and the fact that the Enquiry Committee did not write an elaborate report, does not mean that it did not consider all the relevant facts before it came to the conclusion that the respondent had used unfair means.

. In dealing with petitions of this type, it is necessary to bear in mind that educational institut· ions like the 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 do-mestic l'ribunals 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 serious problem and unless there is justification to do so, cour.ts should be slow to jnterfere with the decisions of domestic Tribunals appointed by educational bodies like the Univerii· ties. In dealing with the validity of the impugned orders passed bJ Univeraities under Art. 226, the High Court is not sitting in appeal over the decision in question; its jurisqiotiol! is ' : li~ited aqd though . -

Board of High School c6 Intermediate · Education U.P. \I. • Bagleshwar Prf!sad G;ij~ndrc gadkar J.

1942 Board oj. High Scio•I &> Intermediate Education 'U .P. v.1 Baale•hwar P1asaa,

it is true that if the impugned order is not suppor-ted by any evidence at all, the High Court would be justified to quash that order. But the conclus-ion that the impugned order is not eupported by any evidence must be reached after considering the question as to whether probabilities and circumst-antial 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 opport-unities to defend themselves, and in holding such enquiries, the Tribunal, must scrupulously follow rules of natural justice; but it would, we think, not be reason& hie to import into these enquiries all considerations which govern criminal trials in ordin-ary courts of law. In the present case, no animus is suggested and no malafides have been pleaded. 1The enquiry has been fair and the respondent has had 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 resprmdent.

We ought, however, to add that though we

are inclined to accept the argument raised by the learned Advo.cate-General against the decision of the High Court, we do not propose , to make any consequential order is favour of the appellants, because the learned Advocate-General has fairly conceded that he does not want any such order in the present appeal. It appears that the respondent has, in June, 1962, passed his Intermediate Exam-ination and it has been fairly conceded that there is no intention to disturb his career under the pre-sent circumstances. The learned Advocate·General wanted decision from us in this appeal because he apprehended that the reasoning adopted by the High Court in setting aside the order passed against the responde11t may be construed to me11in that

3 s.c.:R. SUPREME dOUR'i' R~POR'l'S

under Art. 226, the High Court can exami~e the merits of the order passed by appellant No. Im such cases.

The result is though we agree with the appell-ants that the orde; passed by the. H~gh ~ourt was not justified, we refrain from settmg it aside for the reasons just explained. There would be no o~der as to costs.

Beard of 1!I iltfi SchtJOI &. /nlmntdi.te Etl111Jatitm U.P. v. Bt1gleshwar Prasai

THE CEMENT MARKETING CO., OF INDIA LTD. AND ANOTHER

THE STATE OF MYSORE AND ANOTHER

(S. K, DAS, J. L. KAPUR, A. K. SARKAR, M. HIDAYATULLAH and RAGHU:SAR DAYAL, JJ.)

Sales Tax-Sale of goods-Transactions involving move· ment of goods across the border from one State to another-Liability to tax-Mysore Sales Tax Act, 1948 (Mysore 46 of 1948)-Constitution of India, Art.286(2);

The second appellant was manufacturer of cement and at the material time it had over dozen factories in different parts of India none of which was in the State of Mysore. The first appellant was its sales manager and ~ad its head office in Bombay with branch office at Bangalore in the State of Mysore. Cement was controlled article· and every-one wishing to buy cement had to get an authorisation from the appropriate Government authorities in standard form which authorised the first appellant to sell cement in quantities mentioned therein and the cement had to be supplied from the factory therein mentioned. The purchaser had to place an order with the first appellant stating the requirement, where the goods were to be sent and how they were to be sent. In the present ca~e, all the goods were sent against the authorisations from the various factories belonging , to the second appellant which were all outside the. State of Mysore and were received in the State of Mysore by the various

Augtiil 28 • .