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TMI Blog1981 (10) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... ary authority, be reviewed in writ jurisdiction. These questions require examination in the context of the fact situation set out hereunder. 2. The appellant (hereinafter referred to as the petitioner ), who was a student of the M.T.B. Arts College, Surat, appeared at the First Year B.A. Examination held by the South Gujarat University (hereinafter referred to as the University or the respondent-University ) in the month of March, 1979. His roll number for the said examination was 1993. The result of the said examination was declared sometime in the month of June 1979. However, the result of the petitioner was not declared and it was withheld by the University. 3. By a notice dated June 21/23, 1979 the petitioner was called upon to show cause why appropriate action should not be taken against him for having appeared in the paper of English at the Pre-University Arts. Examination held in April 1979 in place of the candidate bearing roll No. 993 of the Surat Centre. 4. The petitioner showed cause by his reply dated July 2,1979. His Case was one of a total denial. He asserted that the allegation levelled against hi was totally false and baseless. He stated that he did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the inquiry held as aforesaid, the Committee recorded a finding at the foot of the proceedings that it was of the opinion that the petitioner had personated the candidate bearing roll No. 993 and that both had colluded with each other and that they were, therefore, denying the charge of misconduct. The Committee recorded that it had left it to the Syndicate to decide as to what penalty should be imposed upon them for their misconduct. 9. The formal decision of the Committee in the case of the petitioner was recorded on August 30/31, 1979. The Committee observed, that inspite of the petitioner's denial, he appeared to have misconducted himself at the examination because a comparison of his admitted handwriting in the answer-book of the paper of English at the F.Y.B.A. Examination with the handwriting in the answer-book of the paper in English of the candidate bearing roll No. 993 at the Pre-University Arts Examination revealed apparent similarity. The Committee, therefore, referred the case to the Syndicate for a suitable action. 10. The Syndicate, at its meeting held on September 5, 1979, considered amongst other things, the aforesaid report made by the Committee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entaries in which the handwritings appeared to be apparently similar and that if the Committee and the Syndicate acted on such evidence, it could not be said that there was no evidence. Our learned Brother observed that though the practice of comparison of handwriting in admitted and disputed documents by courts of law without proper and adequate assistance has been deprecated, it cannot be argued successfully that in disciplinary proceedings before a domestic tribunal where the Evidence Act does not apply and where the tribunal has to discharge its function on the material which is placed before it, the rules of prudence applicable in judicial proceedings were required to be strictly followed. 12. It must be mentioned at this stage that it was also submitted on behalf of the petitioner that having regard to the fact that the charge against him was held proved on the slender evidence consisting of similarity of handwritings in two answer books, the penalty imposed was too severe and that even otherwise, having regard to the antecedents and economic and social background, the penalty was excessive. The petitioner requested the Court to make a recommendation to the respondent-Univ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the matter, resolved not to review the penalty on the following grounds: (1) having regard to the penalties prescribed for certain common misconducts, any reduction in the penalty imposed on the petitioner, as suggested by the Court, in respect of a misconduct which was of a grave nature, would result in imposition of lesser penalty, then that which was ordinarily imposed even in cases of misconduct of lesser gravity, (2) the adoption of such a course would require the University to cancel or revise the penalty prescribed by it for common misconducts (3) the reduction of penalty in the case of petitioner would expose the University to a charge of discrimination, because in similar cases identical penalty was imposed earlier, and (4) the Syndicate having considered the entire natter earlier had not found it proper to reduce the penalty for the same seasons. The University Counsel was requested to bring the resolution to the notice of the Court. 15. The appeal thereafter reached for hearing on March 20, 1981 and it was admitted. The appeal has now reached final hearing before us. 16. On behalf of the petitioner, the same grounds which were urged before our learned Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance. 18. The University is an authority within the meaning of Article 12. It is subject to the injunction of Article 14, which strikes at arbitrariness in State action and ensures fairness and equality of treatment. The actions of the University, therefore, must be right and just and fair and not arbitrary, fanciful or oppressive. (See Maneka Gandhi v. Union of India [1978] 2 SCR 621. The principle of reasonableness pervades Article 14 like a brooding omnipresence and any State action to be valid must answer the test of reasonableness. 18.1 Natural justice likewise is sanctified constitutionally in the great equalising principle enunciated in Article 14 and, therefore, the executive action must meet the requirements of rules of natural justice. Natural justice, it has been said, is only fair play in action . When, therefore, a university authority in the exercise of its disciplinary power, holds proceedings for infliction of penalty for misconduct upon one of its errant students, it is its duty to act fairly in matters, substantive and procedural. Certiorari will issue to quash those proceedings if it is found that the authority acted unreasonably or unfairly in the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Author has pointed out that the no evidence rule has some affinity with the substantial evidence rule of American law which, as explained by Bernard Schwartz in his treatise or Administrative Law, 1976 Edition, at page 595, means, such evidence as might lead a reasonable person to make a finding. In other words, according to the learned Author. The evidence in support of a fact finding is substantial when from it an inference of existence of the fact may be drawn reasonably. 21. The earliest English decision which has touched upon the concept of no evidence is that of the Court of Appeal in The King v. Carson Roberts 1908 (1) K.B., 407. The question in that case was whether the superior Court having the power to issue a writ of certiorari, if it appeared to it that the decision of the auditor in regard to disallowances and surcharges, under the Public Health Act, 1875, was erroneous, could review the same only when such decision was erroneous in point of law and not when the auditor had come to an erroneous conclusion in fact. Fletcher Moulton L.J. observed in that case as follows at page 423: It is admitted by the appellant that if there was no evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, evidence is not restricted to evidence which would be admissible in a court of law.... ...The requirement that a person exercising quasi judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his. 23. In French Kier Development Ltd. v. Secretary of State for the Environment and Anr. 1977 (1) All End LR 297, the jurisdiction of the court of Queens Bench Division was invoked for quashing the appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to legal rules in a Court of law, unless such evidence has some probative value in the sense mentioned above, it would be a breach of natural justice and/or an error of law to found any adverse decision thereon. 25. Nearer home, the approach is not any the different. In State of Andhra Pradesh and Ors. v. S. Sree Ram Rao (1964) IILLJ 150 SC , it was held at page 1726 that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials with regard to the establishment of charge by evidence beyond reasonable doubt was not applicable. In a proceeding under Article 226, the High Court, not being a Court of appeal over the decision of the domestic tribunal, was concerned to determine whether the inquiry was held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice were not violated. Then follow the following important observations: Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offered a currency note, which from its size and colour appeared to be a 100-rupee note, as bribe with the intention of persuading his superior to support his representation regarding seniority. The submission on behalf of the delinquent was that the adverse finding of the disciplinary authority on the said charge was based on no evidence and that the order of penalty was, therefore, invalid. The evidence showed that during the course of the delinquent's interview with his superior, he expressed his regret that he had not brought sweets for his children. The delinquent during the course of the interview took out from his wallet a currency note which was folded double and whose colour was blue and size was bigger than the usual ten-rupee or five rupee note. The evidence further showed that there was no actual offer of the note to the superior, but an impression was created on the mind of the superior, viewing the whole thing in the context, that a bribe had been offered to him. The superior was admittedly having an eye-sight which was not perfect. The version of the delinquent was that he had taken out from his pocket some papers to find out the letter relating to his appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfair means at the examination. The charge was that the candidate (Roll No. 94734), who was the original petitioner, had given a wrong answer to one of the questions in one of the papers in Hindi in precisely the same form in which the said answer had been given by another candidate whose Roll No. was 94733, and that having regard to the identity of the mistaken answers, the delinquent candidate had either copied from the candidate bearing Roll No. 94733, or that he had connived at the candidate bearing Roll No. 94733. copying from his own answer book or that both had copied from a common source. The numbers of both the candidates were consecutive, but the sitting arrangement showed that whereas the candidate charged with malpractice occupied the third seat in the third row, the other candidate occupied the fourth seat in the second row. On the basis of the report of the Enquiry Committee, the Board passed an order cancelling the result of both the candidates. Both the candidates challenged the decision of the Board by way of a Writ Petition and the High Court, having found that there was no evidence in support of the finding that the charge was proved against the candidate bearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to be held and the general background of the prevailing disturbed and riotous atmosphere in the Examination Hall] during the days that the High School Examination was held at the Centre.... ...in dealing with the validity of the impugned orders passed by Universities under Article 226, the High Court is not sitting in appeal over the decision in question; its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. (underlining supplied). It was found on a consideration of overall circumstances of the case that the High Court was not justified in quashing the order passed against the concerned candidate. 29. In M. Maycmdi v. Director, Tamil Nadu S.T. Deptt. (1981) IILLJ 146 SC, a disciplinary inquiry was held against the driver of a State Transport bus (the appellant) on four charges. The disciplinary authority held all the four charges proved a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of no evidence is concerned. In none of these decided cases, there was no evidence in the sense of there being utter paucity of evidence. There was some evidence, direct or circumstantial, on the basis of which the domestic tribunal had reached the conclusion of guilt. The grievance that there was no evidence was examined by applying the test whether or not, accepting the whole of the evidence as it stood, the impugned conclusion followed legally or logically. In cases where direct evidence was not available, the totality of circumstances was carefully considered and the challenge that there was no evidence in support of the decision was examined by applying the test whether probabilities and circumstantial evidence justified the conclusion. Where direct evidence was available, the challenge was examined by applying the test whether it was so thoroughly inconsistent with the rest of the evidence as to make it impossible of acceptance. Mere suspicion, even if honestly and bona fide entertained on the basis of apparently cogent circumstances, was held to be out of bounds even in domestic inquiries, where the principle that in punishing the guilty scrupulous care must be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e similar in both the answer books. Certain other similarities in handwritings were also stated to have been pointed out to the petitioner. The petitioner was unable to offer any explanation for the seeming similarity, though he denied personation and any acquaintance with the other candidate. The finding of fact that the petitioner personated for the candidate bearing Roll No. 993 is based entirely on this evidence. The question is whether the case falls within the mischief of the no evidence rule. 33. Our learned Brother B.K. Mehta was persuaded to hold that since there were two sets of supplementaries where the handwriting appeared to be apparently similar and the Committee as well as the Syndicate had on visual comparison of those supplementaries arrived at the finding with regard to the guilt of the petitioner, it could not be said that there was no evidence . May be, the material would not constitute sufficient evidence in a court of law or in a forum where the Evidence Act or the principles for appreciation of evidence are strictly applicable. However, adequacy of evidence being not a matter for consideration in the exercise of jurisdiction under Article 226, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assistance of evidence in the shape of enlargements or expert opinion. 36. In Kishore v. Ganesh [1954] 1 SCR 919, the question was whether a letter which was a piece of evidence in the case was genuine. The trial Judge answered the question in the negative on the ground, inter alia, that the signature on the letter was dissimilar to the admitted signature. On appeal, the High Court was of the opinion that there was no such dissimilarity. In this connection, the Supreme Court observed as follows at page 318: But conclusions based on mere comparison of handwriting must, at best, be indecisive, and yield to positive evidence in the case. 37. In State (Delhi Administration) v. Pali Ram 1979 CriLJ 17, the following pertinent observations are found at page 21: Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheetanchor of the prosecution-case against a person accused of an offence, soley on compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee acted in the instant case, by any stretch of imagination, be said to have any evidential value? Is it evidence which would reasonably support the conclusion recorded against the petitioner, or is it mere suspicion even if honestly and bona fide entertained? Is it evidence which tends logically to prove the crime of personation and is it material which, as a matter of reason, has some probative value? We are of the view, with respect, that the answers to these questions cannot but be in the negative. Apparent similarity of handwriting in the answer books, perceived on a bare visual comparison by a pair or even pairs of untrained, uninitiated and inexperienced eyes, may be sufficient to sustain a suspicion, but it cannot, without something more, constitute evidence reasonably capable of supporting the finding of guilt, especially when there was, in the instant case, a clear defence of denial based on the plea of alibi and the lack of any acquaintance with the candidate allegedly personated which does not appear to have been considered at all. The decision reached by the Committee, therefore, is apparently erroneous in law and it is manifestly contrary to natural justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had copied from the other candidate or that he had allowed him to copy from his own answer book. The Standing Committee, which inquired into the matter, stated all the relevant facts and came to the conclusion that the Head-Examiner had thoroughly examined the answer books of both the candidates and had pointed out the common mistakes committed by them. The mistakes were such which could have been committed only if copying had been done from a common source or by the two candidates from each other. The Standing Committee disqualified the appellant from sitting in any examination for two years. The decision of the Standing Committee was challenged in a Writ Petition under Article 226 and the same was dismissed in limine. On appeal it was, inter alia, urged on behalf of the appellant before the Supreme Court that the finding of the Standing Committee was based on no evidence. The Supreme Court rejected the submission holding, inter alia, that it was for the Standing Committee to arrive at its own conclusion on the evidence before it and that the same could not be reexamined except on very limited grounds which were not established. It was held that the finding of the Standing Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of penalty must be touched alternatively, and even independently. The petitioner has been visited with the penalty of debarment from appearing at any examination to be held by the University or joining any affiliated college or recognised institution upto May 31, 1984. The bar imposed accordingly operates for a period of five years. The question is: Even assuming that the petitioner is guilty of personation, is the penalty proportionate to the proved misconduct? We do not wish to minimise the depravity of a person guilty of personation at an examination, nor do we make light of the passionate plea advanced on behalf of the University, backed by the weighty authority of judicial pronouncements of the highest Court, that decisions of educational bodies, like Universities and Examination Boards, in disciplinary matters relating to malpractices at examinations, should not be ordinarily interfered with. Still, however, one cannot overlook that the doctrine that every statutory power must be exercised reasonably is too firmly entrenched in our jurisprudence to brook any refutation and that the exercise of disciplinary power is not free from the said inhibition or limitation. The quant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough penalties are imposed with the end in view of creating a deterrent effect, the current thinking in penology even in the context of hardened criminals is that reformation and curative technology are also as much a part of penalty procedures as retribution. This thinking must be reflected with greater force in the disciplinary jurisdiction exercised by the academic bodies who deal with delinquents qua whom they are in loco parentis. The perpetrator of the malpractice or unfair practice at the examination, in most of the cases, is a youth at the threshold of life. To deprive him of education and an opportunity to secure academic qualification over an unreasonably long period might do more harm than good and his channelisation into good and useful life, which is the prime object of education and one of the principal purposes underlying the penalty, might be thereby frustrated. 48. Against the background afore said, there is no escape from the conclusion that the bar of five years imposed in the case was far too excessive and unjust. Our learned Brother B.K. Mehta expressed the considered view that, on the facts and in the circumstances of the case, the penalty of debarment fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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