High Court · 2012

5. However, basing upon the aforesaid report, the Executive Council of the University, formed a 2-member enquiry committee headed by Justice(Retired) DN Ch oudhury, and Sri K.K.Bora, former chairman of Assam Higher Secondary Education C ouncil, vide notification dated 28.6.2005. The terms of reference of the enquiry committee are as follows: i) To identify the persons, both official and non-official, responsible for the gross irregularities committed at different levels right from individual ex aminers upto the Zonal Office and the office of the Controller of Examination, G auhati University, relating to evaluation of the answer scripts of the TDS(2+1) Examination, 2005 of the Gauhati University. ii) ons by the Gauhati University and to suggest measures for necessary remedy. To identify the loopholes, if any, in the system of conducting examinati The enquiry committee issued show-cause notices to the petitioners on 15 6. .7.2005, asking them to furnish written statement to the committee, if any. Acco rdingly, the petitioners submitted their statement denying the allegations made in the show-cause notice. However, during the entire period, petitioners had bee n in judicial custody in connection with this case. They were not aware of the p roceedings initiated by the enquiry committee and its observation and recommenda tion, if any. The petitioners were, subsequently, issued with show-cause notice by the university on 28.10.2005, asking them to show cause as to why their BA de grees conferred by the university would not be stripped, in view of the report o f the enquiry committee formed by the University.

7. It has been submitted on behalf of the petitioners that although the sho w-cause notice dated 28.10.2005, allegations were levelled against the petitione rs for indulging in bizarre acts of reprehensible nature, there is no categorica l allegation as what exactly or precisely was the bizarre acts petitioners had i ndulged in. Learned counsel for the petitioners has pointed out that though the show-cause notice dated 18.10.2005, issued by the respondent- University referre d to the view-points taken by the Executive Council as the basis of show-cause n otice, proposing for stripping of BA degrees of petitioners; no record/letter to that effect, however, was furnished to the petitioners along with the show-caus e notice. The petitioners in their detailed reply submitted on 10.11.2005 to the s 8. how-cause notice, categorically asserted therein that they were never summoned b y the enquiry committee, nor were they asked to produce, any evidence either doc umentary or oral in support of their stand. During the course of proceedings, af ter recording the statement of the petitioners, an assurance was given by the co ncerned authority that they would be given adequate opportunity, of personal hea ring and would also be allowed to examine witnesses in their defence. It has bee n stated on behalf of the petitioners that however for the past 3 years, they ne ver come across any communication from the enquiry committee for any personal he aring. Neither any date for examination of witnesses was fixed. Finally, the pet itioners were not at all afforded any adequate opportunity of being heard. Rathe r, to their utter shock and surprise, they received a notification dated 22.4.20 10 issued by Registrar, Gauhati University, stripping of their Bachelor of Arts (BA) degree, in pursuance of a resolution adopted by the Executive Council of th e university in its meeting held on 31.10.2009.

9. Mr. Borbora, learned senior counsel for the petitioners, referring to pr ovision of Section 5(e) of the Gauhati University Act, 1947, (hereinafter Act) s ubmitted that no specific criterion has been laid down in the Act, providing the modalities for stripping of degree of a person by the University. Section 5(e) of the Gauhati University Act, 1947, is quoted below: 5 : The University shall have the following powers, namely - (c) to confer honorary degrees or other distinctions, on approved persons in the manner laid down in the Statutes, & & & & & &.. (cid:28)5.(e) to withdraw or cancel Degrees, Diplomas, certificates or other distincti ons granted or conferred (cid:29). Learned senior counsel for the petitioner has pointed out that the petit 10. ioners, who were admittedly accredited examiner of answer-scripts of BA Examinat ion, were branded as non-entity by the respondent- University for the purpose of stripping of their graduate degree. Referring to the affidavit submitted by the respondent -University, learned senior counsel for the petitioners has pointed out that the answer-scripts were formally ordered to be handed over to the petit ioners by the zonal office of the University, for evaluation. Therefore, the Uni versity authority apparently, cannot now turn back and disown the action of its zonal office, in distributing the answer-scripts for evaluation by the petitione rs, who were its accredited examiners. Referring to the report of the 2-member c ommittee, learned senior counsel for the petitioners has submitted that there is no specific allegation against the petitioners, for having indulged in malpract ice with some ulterior motive.

11. In the affidavit submitted by the respondent -University authority, it h as been indicated that the names of the petitioners do not exist in the universi ty record. However, it has been admitted in the affidavit that the petitioners w ere entrusted by the respondent University, through its zonal office, to evaluat e answer-scripts. The respondent-University is not expected to blow hot and cold as per their own convenience. It is not permissible under the law to both appro priate and reprobate. An authority of the statute of a University cannot say at one time that the transaction is valid and thereby obtain some advantage due and availing services and then turn around and say it is void for the purpose of pu nishing them.

12. Therefore, apparently, lapses or remiss, if any, was with the officials of the University, in handing over the answer scripts to the petitioners for eva luation. If petitioners were not accredited examiners approved by the University , in that case the University authority should not have formally handed over the answer-scripts for evaluation by the petitioners. Question raised by the petitioner is whether the petitioners were served with an y specific charge by the respondent University, in order to carry out a discipli nary proceeding, for withdrawal/cancellation of their B.A. degrees conferred by Gauhati University. Apparently assurances were given of providing adequate oppor tunity of being heard. However, such opportunity, do not seem to have been given to the petitioners by the respondent University.

14. Learned senior counsel, relying on the decision of this Court in Naren Das vs. the Gauhati University and others, reported in ALR (1973) 49, has pointed out that while carrying out an enquiry of this nature resulting in pena l consequences affecting the future career of an individual, the principles of n atural justice ought to have been followed by giving adequate opportunity of bei ng heard. Apparently, such opportunity does not appear to have been afforded to the petitioners in the present case. The relevant extract of the decision in Nar en Das(supra) is quoted below: It is well-settled that in an enquiry of this nature resulting in penal (cid:28)6. consequences affecting the future career of a student, the principles of natural justice have to be observed. The basis minimum of such rules is that the studen t should have an opportunity to know what the charges or allegations are against him, on which the University wants to take action. He should have an opportunit y to submit his explanation with regard to such allegations. If the allegations are denied, there should be a proper enquiry, giving the student an opportunity to know the evidence that is led against him, and if he wants to cross-examine a ny witness supporting the allegations, he should have the opportunity to do so. He should also have an opportunity to produce his evidence to rebut the charge, if he so desires. If the student wants to make any oral submission during the en quiry, he should also have the opportunity to do so. The order ultimately passed , if adverse, should briefly contain the reasons for the same. The matter may be different when the allegations are admitted. The above is ordinarily the proced ure which will meet the requirements of natural justice, if there by no specific rules on the subject. We find in this case that the petitioner was denied inspection of the an 7. swer script. He was not at all aware of what fats were taken into consideration against him, and it is made clear by the Registrar before the Court that some ad ditional allegations were taken note of against the petitioner, besides those me ntioned in the show cause notice. There is, therefore, clear violation of the pr inciples of natural justice in this case. The impugned order of the University i s, therefore, quashed and the respondents are directed to forbear from giving ef fect to the same. (cid:29)

15. Now, having regard to the circumstances, it is required to be seen whet her a fair and/or reasonable opportunity was given to the petitioners before the ir Graduate Degrees were canceled/withdrawn. I do not find that any reasonable o pportunity at all was given to the petitioners to explain their position. The qu estion as to whether the opportunity which was given was a fair opportunity and/ or whether the rules of natural justice were complied with, will only arise in c ases, where opportunity has been given. In the cases, where no opportunity has b een given, this question does not arise. 16. When an academic authority imposes a punishment to its past student by w ithdrawing/ cancelling the University degrees in terms of the Rules, it is not d oing a mere administrative act. Such punishments carry civil as well as penal co nsequences. Absence of rule or regulations, guidelines prescribing the procedur e to be followed in such cases, may not per-se be illegal, if the authority conc erned affords a fair opportunity of being heard to the delinquent by strictly fo llowing the rules of natural justice. However, in the absence of rules and/or pr ocedure for withdrawal/ cancellation of degree conferred to a student or a past student, if the degree is cancelled or withdrawn by ignoring the fundamental pri nciples of natural justice, such order would be illegal and otiose.

18. Therefore, in order to rule out any possibility of its failure to safegu ard the rights of a delinquent, the University authority should formulate and s pell out the procedure, it would adopt and follow to consider withdrawal or canc ellation of Degrees, Diplomas, certificates or other distinctions granted or con ferred on any past or present student. The delinquent student or past student mu st be made aware of the specific charge perused against him and the procedure wo uld be followed in the disciplinary proceedings to consider withdrawal or cancel lations of Degrees, Diplomas, certificates or other distinctions granted or conf erred by it. In the absence of adequate protection to exercise.

19. If an absolute power is vested on the University authority for cancellat ion or withdrawal of the degrees/diplomas/distinction of a past student without prescribing the procedure to be followed, it will tend to vest an arbitrary powe r, which is against the principles of natural justice. More so, absence of rules or guidelines prescribing the procedure for taking up disciplinary action again st a past student for withdrawal or cancellation of Degrees, Diplomas, certifica tes or other distinctions granted or conferred ,cannot be interpreted as an abso lute and/or arbitrary power of the University authority to follow any procedure it preferred. It is a settled principle of law that unless otherwise provided by the s 20. tatute the power of punishment does not carry with it the power to give, punishm ent arbitrarily. Any punishment awarded without affording an opportunity to the person, to give an explanation for his conduct, would be illegal. From the facts and circumstances discussed above, in the present case, t 21. here has been a clear violation of the principles of natural justice by the resp ondents, in awarding the punishment of withdrawal of the Graduate degrees of the petitioners. Accordingly, the writ petition is allowed. The impugned orders pas sed by the respondent-University are hereby quashed. However, there shall be no order as to costs. 23. d disposed of. With the above observations and directions, both the writ petitions stan