S.Ashok Kumar v. The Principal, Dr.Ambedkar Government Law College, Chennai-104

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 03-07-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.7099 of 2009S.Ashok Kumar .. Petitioner. VersusThe Principal,Dr.Ambedkar Government Law College, Chennai-104. .. Respondent. Prayer: Petition filed seeking for a writ of Certiorarified Mandamus,to call for the records relating to the suspension order of therespondent, made in 3146/A5/2008, dated 13.11.2008, and quash thesame as against the petitioner and consequently direct the respondentto allow the petitioner to pay the fees for 6th semester, attend theclasses and continue his education. (Prayer amended as per Court order in M.P.No.2 of 2009 in W.P.No.7099of 2009 by KSAJ)For Petitioner: Mr.N.G.R.Prasad for Mr.R.Shiva KumarFor Respondent : Mr.P.Wilson Additional Advocate General for K.H.Ravi Kumar Government AdvocateO R D E RHeard the learned counsel appearing for the petitioner and thelearned Additional Advocate General appearing for the respondent.2. By consent of both parties, the writ petition is taken up forfinal hearing and disposal. 3. Originally, this writ petition had been filed praying for aWrit of Mandamus to direct the respondent to allow the petitioner topay the fee for the 6th Semester and to continue his education in therespondent College, namely, Dr.Ambedkar Government Law College,Chennai. Later, the prayer in the writ petition had been amended, asper the order of this Court, dated 27.4.2009, made in M.P.No.2 of2009. By way of the amended prayer, the petitioner had prayed that https://hcservices.ecourts.gov.in/hcservices/ this Court may be pleased to issue a writ of Certiorarified Mandamusto call for the records relating to the order of the respondent,dated 13.11.2008, suspending the petitioner from the respondentCollege and to quash the same, in so far as it relates to thepetitioner and to direct the respondent to allow the petitioner topay the fees for the 6th Semester and to attend the classes and tocontinue his education. 4. The petitioner has stated that he belongs to the weakersection of the society and that he comes from a socially andeconomically backward village, namely, Kulasekaranatham, inThoothukoodi District. He had successfully completed his HigherSecondary Education from St.Johns Higher Secondary School,Palayamkottai, in the year 2005. In order to pursue his furtherstudies he had joined the respondent law college at Chennai, with theaim of becoming a lawyer. He had been attending the classes in therespondent college, regularly, and he had completed his V Semesterduring the month of September, 2008. 5. The petitioner has further stated that he was staying in theLaw College Hostel at Kilpauk, Chennai. As the situation in theHostel was not conducive for his studies, he had shifted to hisrelative's house in Keelkattalai, during the month of August, 2008.While so, there was a clash amongst some students inside the collegecampus, on 12.11.2008. On the said date the petitioner had not goneto the College, as he did not have any examination on that date. Infact, the petitioner was staying in the house of his relative inKeelkattalai.6. It has been further stated that it is clearly evident from thevideo recordings and the photographs available that the petitionerwas not present at the place where the incident had occurred. Thepetitioner's name does not figure in the first information reportrelating to the incident that had occurred, on 12.11.2008, in CrimeNo.1371/2008 in B-2, Esplanade Police Station, Chennai. However, asan abundant caution the petitioner had obtained an anticipatory bailfrom this Court by an order, dated 29.1.2009, made in Crl.O.P.No.1478of 2009. 7. It has been further stated that after the incident which hadhappened, on 12.11.2008, the State Government had announced theclosure of all Law colleges in the state of Tamil Nadu. The LawColleges had re-opened only on 19.1.2009. However, the colleges hadagain been closed due to the unrest relating to the Tamil Eelamissue. Thereafter, the colleges had re-opened only on 23.3.2009.While a number of students, who were in the same class as that of thepetitioner, had been permitted to attend classes in the 6th Semester,the authorities of the respondent college, had refused to permit thepetitioner to submit his application and to pay the fees for the 6thSemester. In spite of the several requests made by the petitioner to https://hcservices.ecourts.gov.in/hcservices/ permit him to attend the classes in the 6th Semester, the authoritiesconcerned had refused to entertain the request of the petitioner.Later, he was informed that he had been suspended from the collegeand that the order of suspension had been sent to his address at hisnative place. 8. The petitioner has further stated that the order of suspensionin the proceedings of the respondent bearing Order No.3146/A5/2008,dated 13.11.2008, does not pertain to the petitioner. It was relatingto one S.Ashok Kumar, son of M.Sivalingam, whose name is found inserial no.15 of the order. S.Ashok Kumar, Son of M.Sivalingam, hadbeen arrested by the police in connection with the incident that hadtaken place in the respondent college, on 12.11.2008. The case of thepetitioner is one of mistaken identity. 9. It has been further stated that the impugned order ofsuspension, dated 13.11.2008, had been passed, arbitrarily, withoutgiving the petitioner prior notice and without obtaining hisexplanation. No show cause notice had been issued to the petitionerand there was no personal hearing. Due to the order of suspension,dated 13.11.2008, the authorities of the respondent College haverefused to permit the petitioner to attend the classes in the 6thSemester and they had also refused to permit the petitioner to writethe 6th Semester examinations, commencing from 4.7.2009. Since thepetitioner has been put to severe hardship, irreparable loss andmental agony, he has preferred the present writ petition before thisCourt, under Article 226 of the Constitution of India.10. The learned counsel, Mr.N.G.R.Prasad, appearing on behalf ofthe petitioner had vehemently argued that the petitioner is beingwrongly punished for no fault of his, as it is a clear case ofmistaken identity. Though, it may be true that the name of oneS.Ashok Kumar, son of M.Sivalingam, has figured in the firstinformation report, registered before the B-2, Esplanade PoliceStation, Chennai, in Crime No.1371/2008, it cannot be said that it isthe name of the petitioner. In fact the petitioner was not present inthe respondent college, on 12.11.2008, when the incident is allegedto have occurred. The suspension order of the respondent, dated13.11.2008, does not relate to the petitioner. The fact that thepetitioner was residing in the residence of his elder brother inKeelkattalai on the relevant date, is clear from the video recordingsand the photographs available, relating to the said incident. 11. It has been further stated that in view of the fact that thepetitioner was not allowed to join the classes of the 6th Semesterconducted by the respondent College, he had submitted arepresentation, dated 16.3.2009, to the respondent as well as to theDirector of Legal studies, Chennai, stating that he was not involved,in any way, in the incident that had taken place, on 12.11.2008. Hehad also stated that he was not present in the College, on the day of https://hcservices.ecourts.gov.in/hcservices/ the occurrence. The name S.Ashok Kumar, found in the FirstInformation Report, is not his name. Even though a suspension orderseems to have been passed by the respondent, on 13.11.2008, wherein,the name S.Ashok Kumar is found in serial no.15, it does not refer tothe petitioner, as it refers to another S.Ashok Kumar, Son ofM.Sivalingam. The order of suspension, dated 13.11.2008, had beenhanded over to the petitioner only on 16.4.2009, when he hadapproached the respondent, requesting him to permit the petitioner tojoin the classes of the 6th Semester. 12. The learned counsel had further stated that the FirstInformation Report, registered in Crime No.1371/2008, before the B-2, Esplanade Police Station, Chennai, refers to only one S.AshokKumar, son of Sivalingam, and therefore, it is clear that thepetitioner, whose name is S.Ashok Kumar, son of Shanmuganathan, wasnot involved in the incident that had occurred, within the premisesof the respondent College, on 12.11.2008. Since the respondent hadrefused to permit the petitioner from joining the classes of 6thSemester of the respondent College, he has been put to severehardship and agony. It cannot be said by the respondent that there issufficient evidence against the petitioner to keep him undersuspension, preventing him from writing the 6th semester examinations,to be held from 4.7.2009. As the suspension order of the respondent,dated 13.11.2008, suspending the petitioner from the respondentCollege, is arbitrary and illegal, the petitioner cannot be validlyprevented from writing the 6th Semester examinations of the respondentCollege. 13. In such circumstances, unless and until it is proved that thepetitioner is involved in the unfortunate incident that hadoccurred,on 12.11.2008, he cannot be punished by preventing him fromwriting the 6th Semester examinations. Therefore, this Court is totake a compassionate view in the matter in permitting the petitionerto write the 6th Semester examinations of the respondent College, from4.7.2009. Further, the impugned order of the respondent, dated13.11.2008, is to be quashed, as it is arbitrary in nature and as ithas been issued, without giving a show cause notice to thepetitioner, calling for his explanation, with regard to his allegedinvolvement in the incident that had happened, on 12.11.2008. Thesaid order of suspension, dated 13.11.2008, was issued by therespondent, without following the principles of natural justice andtherefore, it is liable to be set aside. 14. Per contra, the learned Senior Counsel Mr.P.Wilson,Additional Advocate General, appearing on behalf of the respondenthad submitted that the enquiry proceedings initiated against thepetitioner and several other students of Dr.Ambekar Government LawCollege, Chennai, with regard to the incident that took place on12.11.2008, had not been completed. It is not open to the petitionerto contend that since his name does not figure in the First https://hcservices.ecourts.gov.in/hcservices/ Information Report, registered before the B-2, Esplanade PoliceStation, in Crime No.1371/2008, no action can be taken against him bythe College authorities concerned. In fact, the First InformationReport, dated 12.11.2008, mentions the name of the petitioner asAshok, also known as Ashok Kumar, apart from mentioning the name ofthe other Ashok Kumar, Son of M.Sivalingam. 15. Even from the statements made by Ayyadurai and Arumugam, madeunder Section 161 of the Criminal Procedure Code, it is clear thatthere were two persons with the name Ashok Kumar and both of them hadbeen involved in the incident that had occurred on 12.11.2008. Thoughthe classes of the 6th Semester had begun, on 19.1.2009, thepetitioner had made a representation, requesting the respondent topermit him to attend the classes only on 16.3.2009. The petitionerhad come to the College only on 16.4.2009, when the order, dated13.11.2008, suspending him from the College, was handed over to him. 16. It was further submitted that the prayer of the petitioner,requesting this Court to direct the respondent to permit him to paythe fees for the 6th Semester, had been rejected by an order of thisCourt, made in M.P.No.1 of 2009, on 7.5.2009. As the said order hadnot been challenged, it had become final. 17. The learned counsel had also pointed out that since certaincriminal proceedings had been initiated against the petitioner and asthe enquiry launched by the authorities concerned to go into theincident that had occurred in the premises of the Dr.AmbedkarGovernment Law College, Chennai, is yet to be completed, the requestof the petitioner to write the 6th Semester examinations, commencingfrom 4.7.2009, cannot be acceded to.18. It has also been contended that the respondent has beenvested with the inherent power to suspend any student of the college,on disciplinary grounds. Further, he is also empowered to impose thepunishment prescribed, under Regulation 28 contained in the Hand Bookof the respondent College, which reads as follows:"28. The Principal will inflict the followingpunishments in the interest of the students of thecollege:(1) fine, (2) loss of attendance, (3) loss ofterm certificates, 4) suspension, 5) expulsion and, 6)any other punishment deemed fit under circumstancesfor maintaining discipline in the college."19. The learned counsel for the respondent had also pointed outthe regulations, with regard to the percentage of attendance requiredby the students to be eligible to write the University examinations.It has been stated that the candidates securing more than 75% of theattendance would be eligible to write the university examinations.Condonation of shortage of attendance would be on the recommendation https://hcservices.ecourts.gov.in/hcservices/ of the Principal of the College, if the attendance of the candidateis 66% and above, but less than 75%. Candidates who have secured lessthan 66% of the attendance have to redo the entire course in thesubsequent academic year, irrespective of the number of days fallingshort of attendance, by obtaining the prior permission for re-admission from the Director of Legal Studies and the Tamil NaduDr.Ambedkar University, on payment of the fees prescribed for suchreadmission. 20. The learned counsel had further submitted that the number ofworking days for the respondent College, in the 6th semester, was 80.He had also submitted that the petitioner does not get any right towrite the examinations, merely for the reason that he was issued withthe hall ticket for the examinations relating to the earliersemesters. The learned counsel has further stated that the petitionerhad not attended the classes even on a single day, in the 6thSemester. Even if his non-attendance is due to the suspension orderissued by the respondent, there is no provision, under the Rules andRegulations applicable to the respondent College, to permit such acandidate to write the examinations. Therefore, the only course opento the petitioner is to re-do the semester, if he is permitted to doso by the authorities concerned, in accordance with the Rules andRegulations applicable to his case. Further, a wrong precedent wouldbe set if the students, like the petitioner, are permitted to writethe examinations, even though he had not attended even a single classin the 6th Semester. 21. The learned counsel appearing on behalf of the respondent hadfurther submitted that the petitioner has not alleged bias or malafides against the respondent. In such circumstances, it cannot besaid that the order of suspension passed by the respondent,suspending the petitioner from the College, is invalid, as it hasbeen done only to maintain discipline amongst the students of therespondent College, especially, in view of the seriousness of theincident that had occurred on 12.11.2008. The said incident had sentshock waves, not only in the legal circles, but also in the minds ofthe law abiding citizens of the society at large. 22. By way of a reply, the learned counsel appearing on behalf ofthe petitioner, had submitted that Regulation 28 of the Hand Book mayempower the respondent to inflict on the students of the college thevarious punishments, mentioned therein including the punishment ofsuspension. However, no regulation has been shown by the learnedcounsel for the respondent empowering the respondent to pass an orderof temporary suspension. Further, it has also not been shown as tothe prejudice that would be caused to the respondent College if thepetitioner is permitted to write the examinations of the 6th Semester.In spite of the representations made by the petitioner, requestingthe respondent to permit him to attend the classes in the 6thSemester, he has been prevented from doing so. If the petitioner is https://hcservices.ecourts.gov.in/hcservices/ short of the required attendance to write the examinations it is notdue to his fault. In fact, it is due to the illegal order ofsuspension passed by the respondent. As no reply has been sent by therespondent for the representations made by the petitioner, thepetitioner has been kept in the dark, regarding the shortage ofattendance, till the eleventh hour, causing irreparable loss andsevere mental agony to the petitioner. In fact the suspension orderof the respondent, dated 13.11.2008, does not refer to two studentsbearing the name of Ashok Kumar. Similarly, the statements recorded,under Section 161 of the Criminal Procedure Code, does not refer totwo persons with the same name of Ashok Kumar. When only one name ofS.Ashok Kumar is found in serial no.15 in the suspension order, noreasons have been stated for suspending the other student with thesame name. 23. Mr.P.Wilson, the learned Additional Advocate General,appearing on behalf of the respondent had relied on a decision of theSupreme Court, reported in Controller of Examinations and others Vs.G.S.Sunder and another (1993 Supp (3) Supreme Court Cases 82),wherein it has been held as follows:"10. We have given our careful consideration tothe above submissions. One thing must be put beyond doubt,in matters of enforcement of discipline this Court must bevery slow in interference. After all, the authorities incharge of education whose duty it is to conductexaminations fairly and properly, know best how to dealwith situations of this character. One cannot import fineprinciples of law and weigh the same in golden scales. Inthe present system of education, the system of examinationsis the best suited to assess the progress of the student solong as they are fairly conducted. Interference by court inevery case may lead to unhappy results making the system ofexamination a farce. For instance, we cannot but stronglycondemn copying in the examination which has grown intocancer of mass copying. Such unhealthy practices which arelike poisonous weeds in the fields of education must berooted out in order that the innocent and the intelligentstudents are not affected."24. The learned counsel had also relied on a Division Benchjudgment of this Court reported in G.Pravina V. Registrar,T.N.Dr.Ambedkar Law University (2009(2) MLJ 209), wherein it has beenheld as follows:"I. When there is no evidence to show that thecandidate was refused permission to sit for the examinationon the ground of non-payment of donation and when theamount due was only tuition fee, then no direction can be https://hcservices.ecourts.gov.in/hcservices/ issued in favour of the candidate, in the writ petitionfiled by her.II. Mere issuance of hall ticket does not automaticallyallow the candidate to write the examination, unless thecandidate has requisite attendance."25. He had also relied on the decision of the Kerala High Court,reported in P.M.Unni Raja and others V. Principal, Medical College,Trivandrum and others (AIR 1983 KERALA 200), wherein it has been heldas follows:"Courts have generally set certain limitations andself-imposed restrictions on them while exercising theirdiscretionary power under Article 226 in dealing withdecisions of academic bodies. The Courts have consistentlykept their hands of high academic bodies unless flagrantviolation of fair-play based on bias or malafides isbrought to their notice in the orders passed by them. Evenformal violations of principles of natural justice havebeen winked at by Courts if allegation of such violation isinconsequential in nature and when the aggrieved is assuredof such opportunity in parallel proceedings. The teachers and the Principal are considered as adelegate of the parent for the purpose of correction andmaintaining discipline. That the Principal has such a poweris incontrovertible. The essence of the matter, is that thehead of the institution should in law be presumed topossess an inherent right to do such acts as are necessaryin his opinion to maintain discipline in the institution.This right is incapable of an exhaustive identification. Tolimit it within defined confines would be to erode into hisauthority and fetter his discretion. To deny this right tothe head of the institution would be to sound the death-knell of discipline in the institution which is already acasualty, by the combination of diverse forces, from withinand from without. The propriety or otherwise of an order of suspension ofa student by the head of an institution will justifyscrutiny under Art.226 only when materials are placedbefore the Court of either denial of basic human rights orviolation of principles of natural justice, glaringdiscrimination, bias or malafides. The Principal has aninherent power to deal with the students, to improve themand to maintain discipline and include in such power theright to suspend them when occasion demands.The Principal Acts as a second parent of his students.It will not be possible to delineate his powers in clearterms, in the same way as the rights of a parent over hischild cannot be clearly enumerated. The Principal is thebest judge to determine what action is to be taken againsta student accused of pre-admission misconduct. To limit his https://hcservices.ecourts.gov.in/hcservices/ powers to the misconducts in the course of studies wouldrender him ineffective as the head of the institution. Itmay not be proper to import the principles of master andservant bodily to the relationship between teacher andtaught.In these cases, the Principal had before him reports ofvery grievous charges against the petitioners of havingsecured mark-lists which do not tally with the marks in theofficial records. He was aware of the fact that by suchadmission the petitioners had denied admission to othermore deserving candidates. He had also before him materialsfrom which he knew that crimes were registered againstthese petitioners, that investigation was going on, thatthey were arrested by the police and that they werereleased on bail. Thus, the Principal had a wealth ofmaterials before him for suspending the petitioners fromthe institution.Power of suspension is an ancillary and an incidentalpower. Thus, the Principal acted within his powers inordering suspension of the petitioners. The request tofault those orders cannot be granted."26. In view of the submissions made by the learned counsel,Mr.N.G.R.Prasad, appearing on behalf of the petitioner, andMr.P.Wilson, the learned Additional Advocate General, appearing onbehalf of the respondent and on a perusal of the records available,this Court is of the considered view that the reliefs sought for bythe petitioner in the present writ petition cannot be granted, atthis stage. This Court does not find it appropriate to exonerate thepetitioner from the charges levelled against him for having beeninvolved in the incident that had occurred in the respondent College,on 12.11.2008. There is no dispute with regard to the fact that theenquiry, initiated against the petitioner and the other students ofthe respondent College, has not been concluded. 27. In the relevant records, shown by the learned counsel for therespondent relating to the investigation being conducted by thepolice, based on the First Information Report, dated 12.11.2008,registered in Crime No.1371/2008, before the B-2, Esplanade PoliceStation, Chennai, it has been shown as though the petitioner had alsobeen involved in the incident by causing hurt to other students,using his hands and legs. Whereas, the other S.Ashok Kumar, Son ofM.Sivalingam is shown to have used a wooden log during the assault.Even though the petitioner had claimed that he was not found in thevideo recordings and in the photographs relating to the incident,such recordings or photographs cannot be taken as the only completeand final evidence relating to the incident. https://hcservices.ecourts.gov.in/hcservices/

28. Further, an investigation is being conducted based on theFirst Information Report, registered in Crime No.1371/2008, in B-2,Esplanade Police Station, Chennai. Therefore, it would be prematurefor this Court to hold that the petitioner is not connected, in anyway, to the incident that had occurred in the respondent College, on12.11.2008. It is for the investigating agency and for theauthorities concerned, who are enquiring into the matter, to come toa conclusion, based on the evidence available. Merely because thename of the petitioner is not mentioned in the First InformationReport, dated 12.11.2008, registered before the B-2, Esplanade PoliceStation, Chennai, it cannot be said that he has not been involved inthe incident that had taken place, on 12.11.2008. 29. Further, the respondent, as the Head of the Dr.AmbedkarGovernment Law College, Chennai, has an onerous duty cast on him tomaintain discipline amongst the students of the said institution. Assuch he is vested with certain inherent powers, including the powerto prevent the delinquent students from attending classes, by issuingan order of suspension. No educational institution can be run in adisciplined manner without such powers being exercised by theauthorities, who are in the management of such institutions. There isno doubt that a high level of discipline is to be maintained ineducational institutions, especially, in the institutions which areresponsible for creating well trained, like Lawyers, Doctors andEngineers, who are expected to play important roles in the society.Further, it is clear that the petitioner had not attended classeseven for a single day in the 6th semester, due to the impugnedsuspension order issued by the respondent. As a consequence, he hasfailed to meet the attendance requirements of the College, asprescribed by the regulations in the Hand Book of the respondentinstitution. 30. It is clear from the decision of the Supreme Court, inController of Examinations and others Vs. G.S.Sunder and another(1993 Supp (3) Supreme Court Cases 82), that in the matter ofenforcement of discipline in educational institutions the Courts oflaw should be slow in interfering. This Court in a decision, reportedin K.Hariharan V. Vice Chancellor, Bharatidasan University (2008(3)MLJ 465), had held as follows:"12. It goes without saying that the primary object ofall educational institutions are to impart qualityeducation, as well as character building in their students,to enable them to emerge as good citizens in future. Unlessstrict discipline is maintained in the institutions oflearning, the ultimate object of imparting qualityeducation and of character building would be lost, leadingto disastrous consequences." https://hcservices.ecourts.gov.in/hcservices/

31. In such view of the matter, the contentions raised on behalfof the petitioner cannot be countenanced. As there is no merit in thewrit petition it is liable to fail. Accordingly, the writ petitionstands dismissed. No costs. Consequently, connected M.P.No.4 of 2009is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshToThe Principal,Dr.Ambedkar Government Law College, Chennai-104.1 cc To Mr.R.Shivakumar, Advocate, SR.28158Writ Petition No.7099 of 2009VSV(CO)SRA(3/7/2009)