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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 ..... ty, which is within the exclusive domain of the disciplinary 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 allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r he knew the petitioner, be stated that he knew the petitioner by name. 8. At the conclusion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (3) that there was evidence before the Committee in the shape of two sets of supplementaries 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 excessiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered once again. Thereupon, the Syndicate again met on March 11, 1981, and having 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty imposed upon the petitioner is within the four-comers of the Ordinance. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion on that evidence.... There is, indeed, the well established rule that to find facts on no evidence is to err in law. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing. "In the context of the first rule, "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 Develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion about the existence or non-existence of facts relevant to the determination. According to the English decisions, even though a domestic tribunal may act on evidence not admissible according 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence as it stands and only examine whether on that evidence illegally (sic) the impugned conclusion follows or not. One of the charges against the delinquent in that case was that he had 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 superio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agleshwar Prasad and Anr. [1963] 3 SCR 767, was as analogous case since the decision there impugned was that of an Examination Board recorded in an inquiry against a candidate charged with his having used unfair 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amination. Having taken note of the aforesaid background, the Supreme Court observed as follows at pages 877-878: ...it would not be reasonable to exclude from consideration the circumstances under which the whole inquiry came 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. Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion. In other words, cases where there is complete lack of evidence and cases where the evidence, if any, is incapable of rationally leading to the conclusion reached, are both treated, on a par so far the applicability of the rule 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 impossi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Here again, the minutes 'of the Committee read along with the affidavit-in-reply 'filed 'on behalf of the respondent-university show that what was noticed were "certain similarities" and more particularly that the letters "A", "N" and 'S' were found to be 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 eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the admitted signatures and it was unable to feel the certainty which was expressed by the Appellate Bench of the High Court. This case appropriately illustrates how even experienced Judges at fairly high level are likely to fall into an error in basing conclusions on comparison made with naked eyes and without the 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 admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s resort to comparison by an experienced Judge, and if this is how mere visual comparison of handwriting by a person who is a learned in law and wise in the ways of life but who possesses no expertise in the science of handwriting, is frowned upon by the highest courts, can the "comparison evidence", upon which the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had put a wrong value in a sum of three numbers, he had still got the same result of addition as in the answer book of the appellant. The head-examiner also pointed "out certain other similarities in the answers. The appellant's result was withheld and he was required to answer a questionnaire. The appellant denied that he 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng his defence. 45. On both these grounds, therefore, respectfully differing from our learned Brother B. K. Mehta, we take the view that the decision adverse to the petitioner arrived at by the Committee, and subsequently by the University, is liable to be quashed and set aside. 46. One more aspect which has a bearing only on the quantum 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore deciding upon the quantum of penalty. The age. maturity, antecedents, family background, motivation, socio-economic factors, role played in the commission of malpractice or unfair practice, etc. are all factors which must enter into account in the quantification of penalty in disciplinary jurisdiction even in the academic field. Besides, though 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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