Tuesday 19 May 2015

How to appreciate evidence when there is violation of principle of natural justice?


Question before this Court is, whether in present facts, it can 
be said that proper opportunity was given to petitioner to explain alleged 
mal­practice   or other allegations against her.   Letter sent for hearing is 
dated 21.6.1988 and it is not addressed to anybody in particular.   At its 
bottom, name of College is mentioned.  On page appended thereto, at sr. 
no. 16 name of petitioner with her roll number and name of her college 
i.e. Siddhartha Adhyapak Vidyalaya appear.  Petitioner in her petition has 
stated   that   Principal   of   her   college   had   taken   her   to   the   office   of 
respondent no. 1 where she was questioned generally.  Respondent no. 1 
appears to have passed order of punishment on 22.7.1988.  This order of 
punishment   is   forwarded   to   Siddharth   Adhyapak   Vidyalaya   only. 
Forwarding letter does not mention any misconduct, but it only mentions 
the fact of   grant of hearing and imposition of punishment.   This letter, 
therefore,   does   not   give   a   specific   mal­practice   committed   either   by 
petitioner   or   any   other   student   or   any   reasons,   but   the   chart   which 
contains names of 347 students is enclosed with it.  Last column of said 
chart   stipulates   punishment   inflicted.     Therefore,   again   a   particular 
misconduct or mal­practice is not apparent from this document.

 Commission of or indulgence in mal­practice  or use of unfair 
means has got grave consequences. Course of action against a student for 
such   mal­practice   is   required   to   be   determined   after   extending 
opportunity to the student.  Student should, therefore, be informed  of the 
allegations against him or her and then should be given opportunity to 
explain the same.  Material to be used must also be shown to the student. 
Here,   chit was allegedly found on the floor near chair of petitioner in 
examination hall, and  she declined any connection with that chit and was 
permitted to sit in hall and complete the answer paper. There is nothing 
on record to show that   said chit was again shown to her and her reply 
was   not   obtained   in   writing   when   she   remained   present   before 
respondent no. 1 Board on the date of hearing.  If she had given any oral 
explanation, that explanation does not find any mention in the impugned 
order.   Annexure R­1 is notice of hearing dated   21.6.1988 which calls 
about 31 students for hearing on 7.7.1988 at 11.00 am.  Therefore, it is 
apparent that proper and effective opportunity of hearing was not given 
to the petitioner.  The order of punishment imposing  the  punishment on 
about 347  students does not show that   these 347 students were heard 
on   different   dates.     The   order   imposing   punishment   needed   to   be   a 
reasoned   order     showing     application   of   mind   and   pointing   out   why 
defence was not accepted. 

In this situation, material on record is insufficient to hold that 
petitioner   was  given  proper   and  effective  opportunity  before  debarring 
her.  Even allegations against her  were not communicated in writing and 
her answer was not obtained in writing.  The order of punishment is thus unsustainable. 
Petitioner was admitted in 2nd year in very same college and 

her absorption in the Government D. Ed. College was in December 1988. 
In this situation, it is clear that petitioner cannot be blamed in any way 
and it cannot be said   that she played any mischief by appearing in the 
examination.   If there was any order of punishment, respondent no. 1 
would have very well prohibited her from appearing in next examination. 
Why respondent no. 1 could not do so, is not apparent. Moreover, if on 
the basis of such appearance, an action was  to be taken after   several 
years of passing of punishment order, again a show cause notice and grant 
of opportunity was necessary.  No opportunity is given to petitioner before 
withdrawing her diploma in  present matter.   Therefore, also impugned 
order dated 6.10.1997 is unsustainable. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 3743 of 1997
Ku Kalpana d/o Yashwantrao Khedikar (Now Sau 
Petitioner Kalpana Kishore Bhandarkar),
versus
 The Director, Maharashtra State Examination


Coram :  B. P.  Dharmadhikari And Bora, JJ
Dated  :   30th October 2014
Citation; 2015(3) MHLJ 257

    Heard   learned   counsel   for   the   parties.   Order   passed   by 

respondent no. 1 withdrawing  Diploma in Education given to petitioner, 
has been questioned in present writ petition.  This Court issued notice on 
24th December 1997 and granted ad­interim relief staying that order dated 
6th  October   1997.     While   admitting   the   matter,   after   hearing   all 
concerned, ad­interim relief was confirmed. 
2.
Learned   counsel   for   petitioner   submits   that   petitioner 
appeared for 1st  Year D. Ed. Examination in April 1988 in  all subjects. 
When   she   was   attempting   subject   of   Marathi   language,   she   was 
questioned   alleging recovery of a piece of paper   from floor near her 
chair   in   the   examination   hall.     Petitioner   replied   then   that   it   was   not 
belonging   to   her.     She   was,   therefore,   permitted   to   solve   the   question 
paper.     Thereafter,     Principal   of   her   college   took   her   to   the   office   of 
respondent no. 1 where she was orally asked about the very same chit 
found near her chair.   She again orally explained everything.   No order 
came to be passed, but when she received mark­sheet, against Marathi 

3.
subject, no marks were allotted. 
Petitioner   was   given   admission   in   2nd  year     of   Diploma   In 
Education.     The   said   college   viz.   Siddhartha   Adhyapak   Vidyalaya   was 
thereafter   closed   down   and   all   students   including   petitioner   were 
absorbed in the Government D. Ed. College.  Petitioner then appeared for 

2nd  Year   Examination   along   with   subject   of   Marathi   of   1st  Year   as   also 
subject of Child Education etc. of 1st Year.  Mark­sheet was then issued to 
her in April 1989 which revealed that she cleared all subjects of 1st Year, 
but could not clear a subject of 2nd Year.  She was declared as failed.  Back 
subject   was   cleared   by   her   subsequently   in   October   1989   examination 
when   she   was   declared   to   have   passed   the   examination.     Accordingly, 
Diploma in Education was issued to her on 20th February 1990.  Petitioner 
joined employment and started working. 
4.
Some   dispute   arose   about   grant   of   approval   to   petitioner’s 
service   and   respondent   no.1   issued   communication   dated   6 th  October 
1997   to   the   Education   Officer   (Secondary),   Zilla   Parishad,   Bhandara 
pointing out that for adopting unfair means in April 1988 examination, 
her   performance   in   entire   examination   was   cancelled   and   she   was 
debarred from appearing in October 1988 and April 1989 examinations. It 
was   further   pointed   out   that   suppressing   this   punishment   and   taking 

advantage   of   automatic   absorption   in   the   Government   D.   Ed.   College, 
petitioner   managed   to   appear   for   October   1988   and   April   1989 
examinations.  Respondent no. 1 directed the Education Officer to cancel 
Diploma in Education of petitioner on these grounds. 
Mr   Jibhkate,   learned   counsel   for   petitioner   submits   that   if 
5.
performance of petitioner in   April 1988 was to be cancelled, a proper 
show­cause notice should have been issued and an opportunity to  explain 
ought to have been extended to petitioner.  Petitioner did not receive any 
such show­cause notice and   it is  her Principal who carried her to the 
Office of respondent no. 1 where also the exact nature of misconduct was 
not explained to her and no opportunity to file any reply was given.  Upon 
questioning orally, petitioner also gave her explanation and there was no 
statement   recorded.     He   contends   that   in   this   situation   had   order   of 
punishment   debarring   her   from   two   examinations   been   served   on 
petitioner,   she   would   have   immediately   approached   this   Court.     He 
submits that if  her performance was cancelled, there was no question of 
issuing her a mark­sheet of 1st year examination.  Mark­sheet was issued 
to her which did not carry any marks for Marathi subject and, therefore, 
petitioner legitimately felt that she had to appear for that subject again. 
Accordingly, she appeared and ultimately succeeded.  He contends that in 
this   situation,   action   taken   after   more   than   eight   years   is   not   only   in 

conflict with the principles of natural justice, but also bad.  He, therefore, 
6.
prayed for allowing the petition.
Learned counsel appearing for respondent no. 2 submits that 
office   of   respondent   no.   2   did   not   receive   any   punishment   order   and, 
therefore,   there   was   no   question   of   respondent   no.   2     either 
communicating   or   not   communicating   the   same   to   the   petitioner. 
taken.
We have perused submissions filed by respondent no. 1 on 
8.
Respondent no.  1 relies on material on record to substantiate the action 
affidavit   before   this  Court     to   oppose  admission   of   writ   petition.     The 
submissions   have   been   filed   on     23.2.1998   and   affidavit   in   support   is 
sworn   by   P   M.   Panke,   Education   Officer   (Secondary),   Zilla   Parishad, 
.
Bhandara.   Perusal of said reply affidavit shows that after alleged mal­
practice, petitioner was called upon vide communication dated 21.6.1988 
to   remain   present   before   the   Commissioner,   Government   Examination 
Board, Pune on 7.7.1988.  This communication dated 21.6.1988 was sent 
to   petitioner’s   college   and   its   copy   is   produced   with   said     reply   as 
Annexure   R­1.     It   is   further   stated   that   the   case   of   petitioner   was 
scrutinised by said respondent and an order of punishment was passed. 
Order   of   punishment   is   produced   with   reply   as   Annexure   R­2.     At 

Annexure R­2 there are about 347 students belonging to various colleges 
against  whom  respondent   no. 1  has  taken   action.    Name   of  petitioner 
figures at Sr. No. 298 in this list. 
9.
Question before this Court is, whether in present facts, it can 
be said that proper opportunity was given to petitioner to explain alleged 
mal­practice   or other allegations against her.   Letter sent for hearing is 
dated 21.6.1988 and it is not addressed to anybody in particular.   At its 
bottom, name of College is mentioned.  On page appended thereto, at sr. 
no. 16 name of petitioner with her roll number and name of her college 
i.e. Siddhartha Adhyapak Vidyalaya appear.  Petitioner in her petition has 
stated   that   Principal   of   her   college   had   taken   her   to   the   office   of 
respondent no. 1 where she was questioned generally.  Respondent no. 1 
appears to have passed order of punishment on 22.7.1988.  This order of 
punishment   is   forwarded   to   Siddharth   Adhyapak   Vidyalaya   only. 
Forwarding letter does not mention any misconduct, but it only mentions 
the fact of   grant of hearing and imposition of punishment.   This letter, 
therefore,   does   not   give   a   specific   mal­practice   committed   either   by 
petitioner   or   any   other   student   or   any   reasons,   but   the   chart   which 
contains names of 347 students is enclosed with it.  Last column of said 
chart   stipulates   punishment   inflicted.     Therefore,   again   a   particular 
misconduct or mal­practice is not apparent from this document.

 Commission of or indulgence in mal­practice  or use of unfair 
10.
means has got grave consequences. Course of action against a student for 
such   mal­practice   is   required   to   be   determined   after   extending 
opportunity to the student.  Student should, therefore, be informed  of the 
allegations against him or her and then should be given opportunity to 
explain the same.  Material to be used must also be shown to the student. 
Here,   chit was allegedly found on the floor near chair of petitioner in 
examination hall, and  she declined any connection with that chit and was 
permitted to sit in hall and complete the answer paper. There is nothing 
on record to show that   said chit was again shown to her and her reply 
was   not   obtained   in   writing   when   she   remained   present   before 
respondent no. 1 Board on the date of hearing.  If she had given any oral 
explanation, that explanation does not find any mention in the impugned 
order.   Annexure R­1 is notice of hearing dated   21.6.1988 which calls 
about 31 students for hearing on 7.7.1988 at 11.00 am.  Therefore, it is 
apparent that proper and effective opportunity of hearing was not given 
to the petitioner.  The order of punishment imposing  the  punishment on 
about 347  students does not show that   these 347 students were heard 
on   different   dates.     The   order   imposing   punishment   needed   to   be   a 
reasoned   order     showing     application   of   mind   and   pointing   out   why 
defence was not accepted. 

In this situation, material on record is insufficient to hold that 
11.
petitioner   was  given  proper   and  effective  opportunity  before  debarring 
her.  Even allegations against her  were not communicated in writing and 
her answer was not obtained in writing.  The order of punishment is thus 
Petitioner was admitted in 2nd year in very same college and 

12.
unsustainable. 
her absorption in the Government D. Ed. College was in December 1988. 
In this situation, it is clear that petitioner cannot be blamed in any way 
and it cannot be said   that she played any mischief by appearing in the 
examination.   If there was any order of punishment, respondent no. 1 
would have very well prohibited her from appearing in next examination. 
Why respondent no. 1 could not do so, is not apparent. Moreover, if on 
the basis of such appearance, an action was  to be taken after   several 
years of passing of punishment order, again a show cause notice and grant 
of opportunity was necessary.  No opportunity is given to petitioner before 
withdrawing her diploma in  present matter.   Therefore, also impugned 
order dated 6.10.1997 is unsustainable. 
13.
In the result, writ petition is allowed.  Impugned order dated 
6th October 1997 (Annexure VI) is quashed and set aside.  Rule made 

absolute accordingly with no order as to costs.
   P
.  R. BORA, J
B. P
.  DHARMADHIKARI, J

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