SURESH KOSHY GEORGE versus THE UNIVERSITY OF KERALA & ORS.

SURESH KOSHY GEORGE

THE UNIVERSITY OF KERALA & ORS.

July 15, 1968

[J. M. SHELAT AND K. S. HEGDE, JJ.]

Kerala University Act, 1957,-Rules fra1ned by Syndica1:e delegating power to Vice-chancellor to hold inquiri?s on malpractices during exa1ni .. nation~rules not followed-if inquiry invalid.

1Vatural Justice-principles of-if require that inquiry report 1nust be furnished ·with show-cause notice.

As certain preliminary reports indicated that the appellant had indulged in malpractices during an examination, the Vire-Chancellor of the respondent University appointed the second respondent to conduct an enquiry. The second respondent submitted report holding the appel· lant guilty of the malpractices and on the basis of this report, show cause notice was issued to the appeJlant by the Vice-Chancellor. After the appellant had submitted his ~xplanation in response to the notice, and not being satisfied with his exrlanation, the Vicei-chancellor passed f) an order debarring the appellant from appearing in any examination for year. This order was subsequently approved by the Syndicate of the University.

The appellant challenged the Vice-Chancellor's order by writ peti-tion under Articl·~ 226 contending inter alia that (i) the rules framed by the Syndic·ate. delegating its povvers to the Vice-Chancellor required that for conducting the inquiry he should have1 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 ~ere was no proper inquiry; and (ii) the impugned ordet- 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 subn1it his explanation in response to the show cause notice. Single Bench of the High Court 'a11owed the petition, but his decision was reversed in appeal by 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 nierely rules frarned for guidance. The rule under \vhlch the Vice-Chancellor was required to request the principal of the concerned co11ege to appoint ·an Inquiry Officer merely laid down convenient precedure. Hence the Vice-ChanceUor cannot be said to hav~ contravened any Jaw in appoin.ting the Inquiry Officer not designated by the principal. Furthermore, the principal in the present case was the father of the appe11ant; 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 copy of the rep·ort of the second respondent before he was called uoon to give his explanation. Ihe 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 L 12 Sup C.l./68-6

his presence: he \~·as allowed to cross-cxarnimnc the \l+'itnesses examined in the case ·an<l he \\-'<1s permitted to adduce evidence in rebuttal of the ch;1rge. No n1k: .. either slatutory or othcr\\liSl\ required th Vice-Chancel· lor to make ava1Jahlc to the appellant copy of the report subn1iued by the Inquiry Officer. [322 B-CJ

lfossc/ v. Duke of Norfolk e111d others, [1949] I All E.R. 108 (at 118); Local (/o\·cr11n1cn1 Board v. lrid~t\ [ 19151 A.C. 120. !Jr V ertcuil v. Knaggs and A1zr., [1918] A.C. 557; Hyrne and A11r. v. Ki11cn1atograph ]~enters Society Ltd. & Ors .. ['1958] All E.R. 579; TliC' /loard of Higli Scho~l and /11JC'r111ediate l::ducation U.P. \'. Ba1;lcslzwar Prasad llnd ()rs .• [1963] 3 S.C.R. 767 (775). referred to.

B. Surinder. Singh Kanda v. (fo\'?rn111cnt oj tire Fedcrarior, of ,\1afaya, rt962] .A.c·. 322; General Council of Medictil T:clucation and /~egistration of tire United Kingdo1n v. Spack11uz11, (1943] 2 All E. Re-porb, 337; 1\',·11· l'rakash Transport Co. v. New Su1·an1a Transport Co., [19571 S.C.R. %; distin:,'llished.

There is an crro~ous impression evidently influenced by the provi-!>i0ns i~_ Art. J 11 of the Constitul!On particularly a.s they stood before the amendment of that Article th;!I e\'ery di~ciplinary proceeding n1ust con-sist of l\VO inquiries. one before issuing the ~hO\\' cause notice to he follo"·cd by another inquiry thereafter. Such ic; not the requirement of the principle.., of natural ju!-lice. Law m;1y or 1nay not prt.\,crihc such course. Even if sho\v cause notice is provided by law from that it does not folio\\' th•11 <l copy of the report on the basis of \vhich the shO\\' cause notiC('. is issued should he made availahle to the person procerdcd a~aimt or that another inquiry should ho held thereafter. [326 G-327 A]

CIVIL APPELLATE JURISDICTION : Civil A;ipcal No. 990 of 1968.

Appeal by special leave from the judgment and order dated October 16. 1967 of the Kcrala High Court in Writ Appeal No. 128 of 1967.

S. V. Gupte, A. S. Nambiar and Lily Thoma.1, for the appel-lant.

V. S. Scyid Muhammad, P. Keshava Pillai for M. R. K. Pillai. for respondents Nos. 1 and 3.

The Judgment of the Court was delivered by

Hei:de J. This appeal by special leave from the decision of the Division Bench of the Kcrala High Court arises from the discip-linary action taken by the Kerala University against the appellant. He was student in the !st year Degree Course of the Five Year Intcp-rated Course of Engineering, in the Engincerin~ College, Trichur during the academic year 1964-1965. The Vice Chan-cellor of the said Vniversity came to the conclusion that he was guilty of malpractice <lurinp; !he examination. hel? in April 1?65 and consequently debarred him from appearing m any examma-tion till April. 1966.

In the examination in question the appellant had to appear .in two papers in Mathematics. In this case we are concerned with

the Mathematics I paper. The Additional Examiner wh~ valued that paper awarded the appellant 14% marks but the Chief Exa-miner gave him 64% in that paper. The appellan_t had answered questions Nos. l(a), 5(a), 9(a) and 4(a) m the mam answer book and secured O, 2 out of 6, 0 and 0 marks respectively from the Additional Examiner. Pages 6-11 of his main answer book wei;e left blank. There were some additional answer books, certam pages of which were also left blank. Two of the additional ans-wer books were also un-used and left blank. In the used addi-tional answer book questions l(a) and 9(a) wl;Jich the appell~nt 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, notic-ing this unusual feature reported the matter to the Board of Exa-miners 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 scru· tiny. 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 high powered committee should be constituted to go into the matter. Accord-ingly committee consisting of the Chairman of the Board of Engineering Examinations who is the Dean of the Faculty of Engi-neering, Chairman of the Mathematics Section of the Engineering Examinations, the Dean of Faculty of Science who is the Con-vener of the Standing Committee on Examinations, and the Regis-trar 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 ~9tion. Consequently the Vice Chancellor ordered formal inquiry as required by rules. He appointed the second respondent, retired Principal of the University College, Trivandrum as Inquiry Officer for conducting the inquiry. After inquiry the second respondent submitted report holding the ap-G pellant 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 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 exolanation the Vice Chancellor passed an order debarring the anpellant from appearing for any examination till April, 1966. · The same was subseque11tly approved by the Syndicate. The Order of the Vice

Chancellor was impugned before the High Court in Petition u_nder Art. 226 of the Constitution. Single Judge of the High Court who heard the matter at the first instance allowed the peti-tion and set aside that order but his decision was reversed in appeal by Division Bench of that High Court. The appellant appeals to this Court against that decision.

flcfore the l:ligh Court as well as in this court the impugned order was assailed on two grounds viz.-( I) 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 in-valid 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 Chance!lor.

Those contentions appealed to the learned Single Judge but the Judges of the Division flench found no merit in them. Those very contentions have again been repeated before us.

Before examining those contentions, it is necessary to men-tion few more facts. The Kerala University is governed by Kerala University Act, 1957. The Engineering College, Trichur is affiliated to the Kerala Cniversity. Under s. I 9(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 sec-tion empowers the Syndicate to delegate any of its powers to the Vice Chancellor. Cl. 3(xxvii) of Chapter VII of the l st Statutes :Says :

"The Syndicate shall, in addition to the powers and duties conferred and imposed on it by the Act and sub-ject to the provisions thereof, have mid exercise the fol-lowing powers and functions :-

(xxvii) subject to the provisions in the Laws, to take cognizance of any misconduct by any student i1_1 college or institution or in hostel or approved lodging, or by any student who seeks admission to University cours_e of study, or by any candidate for any Umvc.rs1ty Exami-nation, brought to the notice of the Syndicate by t.he head of the institution or by member of any Authority of the University or by the Registrar of the University or by Chairman of Board of Examine.rs ~r by Chief Superintendent at any centre o_f exammatton ~nd -to ·punish ·such misconduct by exclu~lOn ~rom any ~m-versity examination or from any University course m

college or in the University or from any Convocation for the purpose of conferring degrees, either permanently ~r for specified period, or by the cancella!Jon of the Um-versity examination for which he l!PP~ared or by tl_ie de-privation 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, set of rules framed by the Syndicate. These rules are not statutory rules. They are merely rules for gui-dance. They could no\ 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 tinder those rules is valid as no fixed procedure is prescribed in that regard. Those rules provide that on the receipt of com-plaint against 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 consulta-tion with the sub-committee on discipline should take 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 In-quiry 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 appellant. The Vice Chancellor, therefore, thought it proper that he himself should appoint some independent person as the Inquiry Officer. We have earlier seen that the rule under which the Vice Chan-cellor was required to request the Principal of the concerned col-lege to appoint an Inquiry Officer is not statutory rule. That rule merely laid down convenient procedure. Hence the Vice Chancellor . cannot be said to have c·ontravened any law in ap-pointing the Inquiry Officer. It cannot be said and it was not said that the steps taken by the Vice Chancellor were in contra-vention of the principles of natural justice. The second respon-dent .as mentioned earlier is retired Principal of an Engineering College, 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 Divison Bench of !he High Court rightly negatived the contention that by appoint-mg the second respondent as the Inquiry Officer, the Vice Chan-cellor had either breached any statutory rule or contravened any principle of natural justice. ·

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 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 jllsticc. The appellant had been duly infonned of the charge against him Jong before the inquiry began; Jhe inquiry was held after due notice to him and in his presence; he was allowed to cross-examine the witnesses examined in the case aud he was permitted to adduce evidence in rebuttal of the charge. No rule either statutory or otherwise was brough_t to our notice which required the Vice Chancellor to make available to the appellant copy of the report submitted by the Inquiry Officer. It is not the case of the appel-lant that he asked for copy of that report and that was denied to him. The rules of natural justice arc not embodied rules. The .question whether the requirements of natural justice have been met by the procedure adopted in given case must depend to 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('), Tucker, L.J. observed:

"There arc, in my view, no words which arc of uni-versal 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 tri-bunal 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 stan-dard is adopted, one essential is that the person concern-ed should have reasonable opportunity of presenting his case."

In Local Government Board v. A/ridge(') 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 judi-cially. They must deal with the q~estion referred to them without bias, and they must give to each of the parties the opportunity of adequately pr~scnting ~he case made. The decision must become to m the spmt and with the sense of responsibility of tribunal whose duty

(2) [1915] A.C. p.120.

(I) !194910) All-i:.R. p.108 (al 118).

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 Court of law tradition in this country has prescribed certain principles to which in the main the procedure must conform. But what that procedur~ is to be in detail mµst depend on the nature of the tribu-nal. In modern times it has become increasingly com-mon for Parliament to give an appeal in matters which really pertain to administration rather than to the exer-cise of the judicial functions of an ordinary Court, to authorities whose functions are administrative and not in the ordinary sense judicial. Such 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, Par-liament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the con-trary, 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 '>}'ith the view expressed in an analogous case by my noble and learned friend Lord Loreburn. In Board of Education v. Rice(') he laid down that, in disposing of question which was the sub-ject of an appeal to it, the Board of Education was under duty to act in good faith, and to listen fairly to both sides, inasmuch as that was d.uty which lay on everyone who decided anything. But he went on to say that he ·did not think it was bound to treat such question as though it wer<:,_ l!, trial. The Btflard 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 fair opportunity to those who were parties in ·the controversy to correct or con-tradict 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.11

In the above case the Local Government Board acted solelv on the basis of report submitted by one of the Housing Inspec-tors of the Board after 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 consider-ing the scope of the powers of the Governor under s. 2 of the Immigration Ordinance of Trinidad : ,

(1) [1911] A. c. 179.

"Their Lordships are of opinion that in making such an inquiry there ~s, apart from special circumstances, duty of giving to any person against whom the com-plaint is made fair opportunity to make any relevant statement which he may desire to bring forward and fair opportunity to correct or controwrt any relevant statement brought forward to his prejudice."

Jn B,vme and anr. v. Kinenwtograph Renters Society Ltd. & ors.(') Lord Harman J. observed :

"What, then, arc the requirements of natural justice in 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 any-thing 1norc."

The decision of the Judicial Committee in University of Ceylon v. Fernando(') 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 tak~ assistance from the ratio of that decision. Suflicc it to say that in the case before us there was fair inquiry against the appellant; the officer appointed to inquire was an im-partial 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 Ofliccr. Hence we sec no merit in the contention that there was any breach of the principles of natural justice. It is true that the Vice Chancc!-lor did not make available to the appellant copy of the report submitted by the Inquiry Officer. Admittedly the appellant did not ask for copy of the report. There is no rule requiring the Vice Chancellor to provide the appellant with copy of the report of the Inquiry OJliccr before he was called upon to make his re-presentation 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 copy of that report. His present grievance ap-pears to be an after thought and we sec no suhstancc in it.

Mr. S. V. Guptc, the learned counsel for the appellant, in sup-

port of his contention that the failure of the Vice Chancellor to make available to the appellant copy of the report submitted by the Inquirv Officer is an infringement of the yrinciplcs of n.a~u­ral justice, placed strong reliance on the decision of the Jud1c1al

(2) / 1960] (I.) Alt LR .. 6Jl.

. Committee in B. Surinder Singh Kanda v. Government of the Federation of Malaya('). Therein, at the instance of the Com-missioner of Police, preliminary inquiry was held against S. S. Kanda. Thereafter 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, report which was highly pre-judicial 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 tlie Judicial Committee came to the conclu-sion 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(') 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 con-clusion of the Divorce Court that he was guilty of infamous con-duct was not correct. In that case the General Medical Council took action against Dr. Spackman solely on the basis of the con-clusions 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 Coun-cil's refusal to take fresh evidence prevented their being the due· inquiry required bys. 29 of the Medical Act, 1858 and therefore· an order of certiorari was granted.

The ~cope of the principles of natural justice as explained by· the Enghsh Courts was adopted by this Court in large number of cases. See New Prakash Transport Co. v. New Savarna Trans-port Co.(3) and Nagendra Nath Bora v. The Commissioner of Hill Divisions([4]).

Before closing this case we would like to recall the observa--tions mad~ by Gajendragadkar J. (as he then was) speaking for the Court m The Board of High School and Intermediate Educa-tion UP. v. Bagleshwar Prasad and ors.('). His Lordship> observed:

"In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the

(I) [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).

Universities or appellant No. I set up Enquiry Commit· tees 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 lo decide all relevant questions in the light of the evidence 'tdduccd 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 !he question will have lo be considered in the light of probabilities and circumstantial evidence. This pro-blem which educational institutions have to face from time to time is serious problem and unless there is justi-fication to do so, courts should be slow to interfere with the decisions of domestic Tribunals appointed by educa· tional bodies like the Universities. Jn dealing with the validity of the impugned orders passed by Universities under Art. 226, the High Court is not sitting in appeal over the decision in question: its jurisdiction is limited and though ii 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 whe· ther 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 char.ges 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 con-siderations which l!OVern criminal trials in ordinary courts of law. Jn the present case, no animus is sugges-ted and no ma/a (ides have been pleaded. TI1e enquiry has been fair and the respondent has had an opportunity of making his defence. That hein~ 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 quar· tcrs evidently inOuenced by the provisions in Ari. 311 of the Constitution particularly as they stood before the amendment of that article that every disciplinary proceedin~ must consist of two inquiries, one before issuing the show cause notice to he followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such course. Even if show cause notice is provided by law from that it docs not follow that copy of the report on the basis of which the show cause notice is issued should be made available

SURESH V. KERALA UNIVERSITY (Hegde, J.)

to the person proce(!jjed against or that another inquiry should be held thereafter.

For the reasons mentioned above the appeal fails and is dis-missed with costs.

R.K.P.S.

Appeal dismissed.