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TMI Blog2016 (12) TMI 1895X X X X Extracts X X X X X X X X Extracts X X X X ..... r is of even date in both cases. The present petitioner as well as that petitioner faced similar charges about allegedly conducting themselves to disclose their identity in the answer-book. While in the case of the petitioner the nature of acts alleged for identification revilement were as noted above, in case of the petitioner in the other case, the allegation was that the said petitioner had breached the instructions by doing rough work on a different page number than required as per the instructions and that it was deliberately done to disclose the identity and reap the advantage. There was no gainsaying that the case of the present petitioner and case of Siddharth Ashvinbhai Parekh had similar and parallel facts and both the petitioners were virtually identically situated. In Siddharth Ashvinbhai Parekh, the set of rival contentions by both the sides were on the similar lines as could be seen from the contents recording the submissions in paragraph 5 to paragraph 13 of the said decision. The Division Bench applied the principle of no evidence to hold that the case against the petitioner was one of 'no evidence'. Pausing at this stage, the statement recorded on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth Ashvinbhai Parekh was left untouched by the Supreme Court but the question of law was kept open, in the subsequent case considered by this Court where the facts were even otherwise found to be similar and the issue identical, this Court is bound by the decision in Siddharth Ashvinbhai Parekh. The impugned order dated 08th March, 2016 passed by the respondent University is hereby set aside and the respondents are directed to declare the result of the petitioner forthwith - petition allowed. - Special Civil Application No. 19456 of 2016 - - - Dated:- 26-12-2016 - N.V. Anjaria, J. For the Appellant : Dhaval C. Dave, Sr. Advocate and Varun K. Patel, Advocate. For the Respondents : A.R. Thacker, Advocate. JUDGMENT N.V. ANJARIA, J. 1. On the alleged commission of unfair means in the M.B.B.S. Part 2 examination held in January, 2016, the first respondent University imposed punishment upon the petitioner-student cancelling the result of the examination and debarring him from appearing in any University examination till the end of the Second Semester of the Academic Year 2015-16, further imposing penalty of Rs. 01,000/-. It is the said order dated 08th M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned, the Supreme Court had noted that it was not interfering in light of special features of the case. According to him, the special feature was that the petitioner had good academic record. Not only that, submitted learned advocate for the University, the Apex Court had further observed that the question of law was kept open. It was submitted that as the Supreme Court had kept the question of law open, this Court may take an independent view in light of the facts of the present case which, according to his submission, put-forth a different bundle of facts. 4.2 Respondent Nos. 1 to 3-the University filed affidavit-in-reply. On the basis of the contents of the reply, it was submitted by learned advocate for the University that the commission of unfair means was evident by the student who was to become a doctor in future, and therefore the same should be viewed seriously. He submitted by relying on the additional affidavit-in-reply that on the answer-book itself, instructions were mentioned, according to which the petitioner was not supposed to disclose the identity and having violated the instructions, he committed unfair means. It was highlighted, by contrasting it with the spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair means was given to both on the same day. Both were called by communication dated 15th February, 2016 before the Unfair Means Committee to remain present on 24th February, 2016. The case of the petitioners were considered in the same meeting and in the minutes, present petitioner's case was decided under agenda No. 18 whereas petitioner of Siddharth Ashvinbhai Parekh (supra) was under agenda No. 17. The impugned order is of even date in both cases. The present petitioner as well as that petitioner faced similar charges about allegedly conducting themselves to disclose their identity in the answer-book. While in the case of the petitioner the nature of acts alleged for identification revilement were as noted above, in case of the petitioner in the other case, the allegation was that the said petitioner had breached the instructions by doing rough work on a different page number than required as per the instructions and that it was deliberately done to disclose the identity and reap the advantage. As in course of hearing it was debated by learned advocates that the facts of both the case differed, the Court by order dated 19th February, 2016 directed placement of papers of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it was done to ensure that no question is left untouched. It was stated that he had no intention to commit any unfair means and had not misconducted in any way but it was only his way of presentation the answers. He specifically denied the allegation about he having intention of committing misconduct or revealing identity thereby. Learned advocate for the petitioner struggled in vain, to contend that the facts of both the cases were different. In all respects ranging from nature of allegations to the nature of defence and the statement given by the petitioner, the facts were parallel and went hand-in-hand. It could be successfully submitted that therefore the petitioner being similarly situated, was entitled to the benefit of decision in Siddharth Ashvinbhai Parekh (supra). 5.4 The Division Bench in Siddharth Ashvinbhai Parekh (supra), held thus, If the respondent-University was of the opinion that by doing rough work on page 23, the petitioner has disclosed his identity then the respondent-University ought to have conducted a detailed inquiry with regard to the said allegation and after inquiry if the said fact is proved against the petitioner then he could have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the misconduct against the petitioner is proved but in which manner the said misconduct is proved is not at all discussed. The Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) specifically held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In the present case, it is clear that no reason is given in the impugned order passed by the respondent-University that in which manner the allegation levelled against the petitioner has been proved. The respondent-University cannot explain the reason by filing an affidavit annexing the report of the Disciplinary Committee. The learned Single Judge has also failed to consider the fact that the petitioner was not supplied with the copy of the report of the Disciplinary Committee. (Para 27) 6. Now, when the decision of the Division Bench in Siddharth Ashvinbhai Parekh (supra) was carried before the Supreme Court, while dismissing the Letters Patent Appeal No. 19868-19869 of 2016 on 12th August, 2016, the Supreme Court passed the following orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided from the discussion from paragraph 26 to 28, reproduced hereinbelow. The question therefore is, in the present case was the SLP dismissed by citing reasons or was a simplicitor order of dismissal. We have reproduced the order of SLP in the earlier portion of this judgment. The order records that on facts of this case, the Court was not inclined to exercise jurisdiction under Article 136 of the Constitution of India. While therefore, dismissing the SLP the Court proceeded to observe However, the question of law is kept open. In our understanding neither the expression that on the facts of the case, the Court was not inclined to exercise jurisdiction under Article 136 or that the question of law is kept open, would indicate the reasons for not entertaining the SLP. As has been observed in case of Kunhayammed and others v. State of Kerala and another [ (2000) 6 Supreme Court Cases 359] and Gangadhara Palo v. Revenue Divisional Officer and another [ (2011) 4 Supreme Court Cases 602], SLP can be dismissed for variety of grounds, could be on the ground of delay, latches, equity or simply because the Supreme Court thinks in a given set of facts, it is not appropriate to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner of Income-Tax (supra), as such, Special Leave to Appeal was preferred before the Hon'ble Supreme Court and the same came to be dismissed by the Hon'ble Supreme Court on the ground of delay and kept the question of law open, this Court may consider the question of law raised on merits is concerned, the same cannot be accepted. It is required to be noted that as such, consideration of the question raised with respect to set off of unabsorbed depreciation on merits, there is a direct decision of the Division Bench of this Court in the case of General Motors India (P) Ltd. Vs. Deputy Commissioner of Income-Tax (supra). Against the said decision, the Special Leave to Appeal was preferred and the same came to be dismissed on the ground of delay and the Hon'ble Supreme Court kept the question of law open. Therefore, it cannot be said that the said question of law is kept open by the Hon'ble Supreme Court to consider subsequently by this Court Coordinate Bench. It can be said that the said question of law is kept open by the Hon'ble Supreme Court to consider subsequently in other cases by the Hon'ble Supreme Court. So far as this Court is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt it might have been observed that the question of law is kept open. But when a review petition comes before the same Bench, it is the judgment in review which is being criticised. It would have the same limitations as in any other case of review where SLP may not have been filed. Nothing more nothing less. In other words, the expression question of law is kept open does not put any additional fetters on the High Court exercising review powers. (Para 28) 6.4 As recorded above, by comparing the facts on record, the theory that the present case offers different facts could hardly be countenanced. Nor the aspect of special feature of case hold good. As noticed from the comparison of facts of both the case, they were similar wherein both the students were proceeded in same way on similar nature of charge. The principle of 'no evidence' and the attended reasoning supplied by the Division Bench apply to the present case with equal force. 6.5 When the Apex Court does not entertain any Special Leave Petition while observing that it was keeping the question of law decided to be kept open, such question would be treated to have been left open for the Supreme Court only. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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