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TMI Blog1972 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... pitha, Banki Centre, that you have adopted unfair means at the Annual High School Certificate Examination, 1971 in respect of Sanskrit -- I paper on 17-3-1971. In this connection, I am directed to say that the following charges have been made against you. (1) While the Annual High School Certificate Examination, 1971 was in progress at the above Centre, you were found in possession of a small piece of manuscript paper which you brought into the Examination Hall with evident intention of copying from it/them. You were warned before the commencement of the Examination not to bring any paper other than your Admit Card into the Examination Hall. (2) You were found copying from it/them. (3) You have never followed the instructions printed on the back side of your Admit Card in the Examination at all. (4) x x x (5) x x x (6) You refused to give a written statement and your Admit Card to the Centre Superintendent when you were asked to do so. In case you want a personal hearing in the matter, you are required to inform about it along with your explanation in writing so that the date and time of hearing will be communicated to you. If you have anything to say, you are requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 24 (a) & (c) of Chapter X of the Board's Regulations the following candidates who adopted unfair means at the Annual High School Certificate Examination, 1971 are penalised as noted against them :- Serial No. Roll No. Name & address of the candidates Name of institution Penalty imposed 1 2 3 4 5 XX XX XX XX XX 130 M-7619 Pramila Dei D/o. Antaryami Rout, At/P. O. Sisua, P. O. Banki, Dist. Cuttack Govt. Girls' High School, Banki Results cancelled and deÂbarred from appearing at any examination prior to the Supplementary, H. S. C. Examination, 1972. XX XX XX XX XX Sd/- P. C. Roy Secretary. The petitioner's case is that when she denied the charge of malpractice against her there should have been a regular inquiry in which oral and documentary evidence should have been taken and she should have been allowed to defend her case. In the counter affidavit filed by the opposite party the stand is that as the petitioner did not want a personal hearing the case was disposed of on the basis of documentary evidence available with the opposite party; after taking all documents into account the Disciplinary Sub-Committee recommended on 11-6-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statute prejudicial to their view". This decision was followed by the House of Lords in 1915 AC 120. (Local Government Board v. Arlidge). At page 138 of the report Lord Shaw in inimitable language recorded the following classical passage: "The words "natural justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sity of Ceylon v. Fernando the Judicial Committee of the Privy Council expressed their conclusion at page 641 thus: "Their Lordships are, therefore, satisfied that the interviews, so far as they went, were fairly conducted and gave the plaintiff an adequate opportunity of stating his case. But it remains to consider whether, in the course they took, the interviews must be held to have fallen short of the requirements of natural justice on the ground that the plaintiff was given no opportunity of questioning Miss Balasingham. She was the one essential witness against the plaintiff and the charge in the end resolved itself into a matter of her word against his. In their Lordships' view, this might have been a formidable objection if the plaintiff had asked to be allowed to question Miss Balasingham and his request had been refused. But he never made any such request, although he had ample time to consider his position in the period of ten days or so between the two interviews. There is no ground for supposing that if the plaintiff had made such a request it would not have been granted". The aforesaid English decisions have been followed and approved as laying down go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he examinee wants any material to be produced or to cross-examine any witness, then the authority must make those materials or witness available. The authority has, however, no duty to suo motu examine oral evidence or give opportunity for cross-examination. If the delinquent as a part of his defence demands that witnesses reporting against him are to be cross-examined by him refusal thereof would amount to denial of reasonable opportunity. It is also to be further remembered that in exercise of the writ jurisdiction under Articles 226 and 227 of the Constitution over the decision of the educational authority the High Court does not function as a court of appeal. It cannot look into the question of sufficiency or propriety of the evidence. It cannot interfere with the finding of that authority unless the same is based on no evidence or is based on evidence on which a reasonable person cannot hold the delinquent guilty. 10. Keeping the aforesaid principles in view we would proceed to examine the various Bench decisions of this Court in chronological order. 11. 1967 CLT 1136. (Gufran Ali Khan v. B. Misra) is a judgment of Barman, C.J. and A. Misra, J. In that case the result of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 which runs thus: "The omission in the charge to specify the other candidates from whom these petitioners are said to have copied or the proved facts from which inference of copying has been drawn, has caused such vagueness in the charge that the petitioners have suffered from serious prejudice thereby as they have been driven to a roving defence visualising all manner and possibilities of copying and to present their defence against every such possibility". As has already been indicated, charges of accusations along with the statement of particulars on which they are based are to be furnished to the delinquent. If the delinquent is of opinion that before furnishing explanation he is to look into some materials he must ask for the same. If he does not complain of the vagueness of the charge before submission of explanation, his subsequent plea that the charge was vague is not available when the accusations are said to have been established. On the test laid down by Lord Shaw to the effect "and the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re) is a judgment of S.K. Ray. J. and myself. In paragraph 5 of the judgment the following observation was made: "There can hardly be any controversy that the principle of natural justice would vary according to the facts and circumstances of each case. One thing is, however, certain and that is that the charge must be framed indicating the allegations against the delinquent, the materials on which the allegations are based must be furnished, the delinquent must be given an opportunity to show cause against the charge documents and oral evidence in support of the charge must be examined in presence of the delinquent who should also be given an opportunity to contest the same by cross-examination. The delinquent would be entitled to give evidence in support of his defence and then the entire matter should be disposed of after giving him a personal hearing". This passage does not represent the law correctly. It has placed an enquiry by an educational institution on the same footing as an enquiry under Art. 311 (2) of the Constitution. The ultimate conclusion in that case can be supported on the ground that despite the request on the part of the delinquent to supply him c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence or to suo motu give opportunity for cross-examination. (d) If, however, the delinquent as a part of defence demands that the witnesses reporting against him are to be cross-examined by him, refusal thereof would amount to denial of reasonable opportunity. 17. The last case is an unreported decision in O.J.C. No. 130 of 1968 (Orissa), (Rabindra Kumar Das v. Utkal University) delivered by S.K. Ray and Patra, JJ. The defence in that case was a total denial. It was conceded that no enquiry was at all held. The conclusion in that case was correct on its own facts and circumstances; but therein also the law was not very precisely stated. As that decision is based on concession it is not necessary to refer to it at length. 18. In the present case when the charge was framed the petitioner was asked whether she wanted any personal hearing in the matter. It was also intimated to her that if no reply was received from her by the date fixed, it would be taken that she had no defence to give and the matter would be disposed of ex parte. After receipt of her explanation all relevant documents were taken into account by the Disciplinary Sub-Committee and on its recommendation the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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