S.Anbarasan v. The Joint Director of Government Examination/Secretary Higher Secondary Examinations

In the High Court of Judicature at MadrasDated: 19.08.2009CoramThe Honourable Mr.JUSTICE P.JYOTHIMANIWrit Petition No.12664 of 2009& M.P.Nos. 1 and 2 of 2009S.Anbarasan.... PetitionerVs.The Joint Director of Government Examination/Secretary Higher Secondary Examinations,DPI Compound, College Road,Chennai – 6..... RespondentPETITION under Article 226 of The Constitution of India prayingfor the issuance of Writ of Certiorari calling for the entire recordsrelating to the impugned order passed by the respondent in hisproceedings No.115745/H-13(4)/2009, dated 22.06.2009 and quash thesame.For Petitioner : Mr. C.PrakasamFor Respondent : Mrs. Dhakshayani Reddy, G.A.ORDER The Writ Petition is directed against the impugned order of therespondent dated 22.6.2009 by which the respondent has debarred thepetitioner from writing examinations for the period of three yearsand also cancelling the examination taken up by the petitioner in theplus two examination held in March 2009. 2. The petitioner is stated to be a student of plus two atSowdambiga Matric Higher Secondary School, Thuraiyur, Trichy Districtand he was taking up the examinations held in March, 2009. When hewas taking his physics examination on 9.3.2009, it is stated that oneStalin, who is stated to be the teacher of the petitioner, taken hisquestion paper and at the time when the respondent squad team came tothe examination hall found that the question paper was not with thepetitioner and it was those circumstances, criminal case was lodgedagainst the petitioner, the said teacher - Stalin and the Principalof the school. The petitioner was produced before the Juvenile Court https://hcservices.ecourts.gov.in/hcservices/ and released. It is stated that when a show cause notice was issuedby the respondent on 15.4.2009 for the proposed punishment ofdebarring the petitioner from writing examinations for a period ofthree years, he has submitted his detailed explanation and inspite ofthat no orders have been passed, the petitioner has approached thisCourt by way of filing Writ Petition in W.P.No.10822 of 2009. Whenthe said writ petition came up before this Court on 23.6.2009, it wasinformed by the learned counsel for the respondent that the impugnedorder has already been passed debarring the petitioner and cancellingthe examinations written by him as stated above. In thesecircumstances, the said Writ Petition was dismissed with liberty tothe petitioner to file fresh writ petition challenging the impugnedorder. Based on which the present writ petition is filed. 3. The impugned order is challenged on the ground that thepetitioner has not committed any mal practice, that it was only thesaid teacher, Stalin, who has forcibly taken the question paper andthat he has not either copied in the examination or comitted any malpractice. It is also questioned on the ground that principles ofnatural justice has not been followed and fair opportunity has notbeen given. 4. In the counter affidavit filed by the respondent, it isstated that the Sowdambiga Matriculation Higher Secondary School isthe examination centre for the public examination held in March,2009. When the flying squad visited the centre on 09.03.2009, it wasfound that the petitioner, who was writing the Physics examination inthe centre did not possess the question paper distributed to him. Itwas found by the flying squad that the petitioner has clandestinelyhanded over the Physics question paper to the school teacher – Stalinfor getting correct answers written on it. According to therespondent, as per the Rules in existence, the student in theexamination hall should retain the question paper and for the offenceof sending out the question paper, the punishment is the examinationwould be cancelled and the student will not be permitted to writeexamination for another six sessions, namely, three years. Thecompetent authority to impose such punishment is Secretary, Board ofHigher Secondary Examinations and Joint Director of GovernmentExamination, (H.S) Chennai. 5. It is stated that pursuant to Rule 11, a show cause noticewas issued to the petitioner on 8.4.2009 by the Joint Director ofExaminations (Higher Secondary) and Secretary, State Board of SchoolExaminations, Chennai. It is stated that the act of the petitionerin giving the question paper to Mr.Stalin would amount to anintentional act of mal practice and the impugned order has beenpassed after giving opportunity to the petitioner who has also givenhis explanation dated 26.4.2009. It is stated that in theexplanation, he has again reieterated the same stand admitting thatthe question paper was not with him at the time when the flying squad https://hcservices.ecourts.gov.in/hcservices/ visited the examination hall. It is also stated that criminal caseis filed against the petitioner, Thiru.Stalin and Thiru.Ramasamy,Principal of Sowdambiga Matriculation Higher Secondary School and thesame is pending. Taking note of the serious nature of the conduct ofthe petitioner, the impugned order came to be passed by cancellingthe examinations written by the petitioner and also debarring himfrom writing examinations for six sessions, namely, for three years. 6. Learned Government Advocate has contended that opportunityhas been given to the petitioner, who has given explanation. Shealso contends that in the explanation, the petitioner has admittedthe commission of mal practice and therefore, the question of furtheropportunity to be given to the petitioner does not arise. In theexamination matters, rowing enquiry is not permitted and prima facieif it is found that mal practice has been committed, in the interestof strict discipline, serious action would be taken and that cannotbe questioned. She also produced the entire records relating to thesaid matter. 7. I have gone through the records. On 09.03.2009, in theexamination hall wherein the petitioner was taking Physicsexamination, the flying squad headed by Mr.R.Palaniappan, CEO hasfound that the petitioner was not in possession of the question paperand the petitioner has given a written statement to him on 9.3.2009wherein he has stated that after receiving the question paper at10.00 a.m., he was proceeding to write the answer and by 10.15 a.m.,his teacher Stalin has forcibly taken away the question paper throughwindow stating that he would give the answers in the question papers.It was at that time, the flying squad have entered into theexamination hall. This is all the statement given by the petitioneron 9.3.2009. 8. It is relevant to point out that the flying squad memberMr.R.Palaniappan, CEO in his statement on 9.3.2009 while stating thatat the time of his inspection, the petitioner was not in possessionof the question paper and on enquiry, the petitioner has informed himthat Thiru.Stalin on assurance of getting answers in respect ofsingle line answers has forcibly taken away the question paper Therelevant portion of his statement reads as follows:"mtdplk; JUtp/ JUtp tprhhpj;jnghJ mg;gs;spapd; M';fpy Mrphpah;jpU/!;lhypd; vd;gth; 1? kjpg;bgz; tpdhf;fSf;F kw;w khzth;fSf;Ftpilaspg;gjw;fhf vd;dplk; ,Ue;j nfs;tpj;jhis gyte;jkhf btspapy; gwpj;Jbrd;Wtpl;lhh; vd;W mk;khztd; vd;dplk; bjhptpj;jhd;/@Therefore, the first statement of the CEO flying squad member is theinformation given by the petitioner to the effect that the saidteacher Stalin has removed the question paper forcibly so as to giveanswer to other students, but not to the petitioner. https://hcservices.ecourts.gov.in/hcservices/

9. In the reply to the show cause notice, the petitioner on26.4.2009 while reieterating his stand which he has taken on 9.3.2009by way of statement given to the flying squad has stated that theremoval of question paper by the teacher is only to increase theimage of the said School by giving the answer to the students byteachers themselves. He has also stated that it was with a view thissort of activities were going on in the school and the petitioner hasbeen made as a scape goat even though he has not committed any malpractice. In the statement given by the CEO, who is a member of theflying squad, he has categorically stated about the information givenby the petitioner that some of the teacher has forcibly removed thequestion paper with a view to give answers to other students and alsothe explanation given by the petitioner shows that the petitioner hasnot been caught by committing mal practice, in the sense, that suchanswer has never been given to the petitioner and the petitioner hasnot used such answer borrowed from third party in his answer papers.A reference to the answer paper, which is also on record shows thatit is only four lines answers written, because the question paper wasgiven to him by 10.00 a.m. and the answer paper was collected by10.15 a.m., i.e., within 15 minutes from the starting of theexamination, the petitioner has been caught and sent out of theexamination hall. 10. Learned Government Advocate placed reliance on the Schemefor the Award of Higher Secondary Course Certificates as issued bythe Government on 22.12.1982. In Chapter II, which speaks about theBoard of Higher Secondary Examination, nowhere defines about theexamination mal practice, neverthelss, Chapter X, which speaks aboutthe punishment to be awarded to the candidates resorted to malpractice, in Clause 11, it is stated as follows:"Sending out the question paper – cancellation ofperformance at the examination and debarment upto aperiod of three years, i.e., six, subsequentexaminations."11. In the absence of any procedure prescribed for the purposeof conducting enquiry in finding out the mal practice, it isincumbent on the part of the respondent to follow the basicprinciples of natural justice and fairness. The reason being that bydeclaring a person having committed mal practice, it is not onlycausing a stigma on the life of a student, but also by cancelling theexaminations and debarring him for further three years wouldcertainly cause enormous damages to the life of an youngster andtherefore, it is necessary that unless there is a proper proof toshow that mal practice has been committed, the authority should becareful in imposing such punishment. Such punishments in the eventof a person being innocent would only make him a bad citizen or evenanti-social element and that is not the idea of conferring such https://hcservices.ecourts.gov.in/hcservices/ powers to the educational authorities to prevent mal practice. Inthe guise of preventing mal practice, it is certainly not open to theeducational authorities to interfere with the life of a person and itcan also be said that right to live is guaranteed under Article 21 ofthe Constitution of India, as a fundamental right includes right tolive as a decent citizen. 12. In the present case, on record as I have analysed, there isnothing to show that the petitioner was actually involved in malpractice. The examination mal practice normally we understand isthat copying in an examination hall or having answer sheets or answerpapers, which are treated as incriminating materials and on theseizure of such incriminating materials and enquiries conducted, ofcourse, rowing enquiry is not possible in educational matters, primafacie the authority must be satisfied that the intention of thecandidate is to commit mal practice and that is the subjectivesatisfaction of the authority, which has to be exercised in a propermanner. On the facts of the case, the CEO himself has stated that atthe time when he caught the petitioner on the basis that there was noquestion paper with him, he was informed that some teacher has takenaway by force through window stating that he would give the singleline answer, which is useful to other students and not to thepetitioner. If that is the first information, which is available onrecord, it is not known as to how the respondent has come to aconclusion that the petitioner was involved in examinationmalpractice. Such a hasty conclusion are not permissible for theeducational authorities, especially while dealing with a life of anyoungster. 13. One other aspect, which is relevant at this point of timeis that Chapter 10 of the Scheme for the Award of Higher SecondaryCourse Certificates. It is relied on by the learned counsel for therespondent that imposing punishment in mal practice, which says inClause 13 that copying was detected on the basis of internalevidence, the proposed punishment is cancellation of performancebesides debarring for the two subsequent examinations. On the otherhand, for sending out of the question paper, the proposed punishmentis cancellation of performance at the examination and debarment uptoa period of three years i.e., six subsequent examinations. 14. Therefore, when the examiner found that the question paperwas not available with the student at the time when inspection wasmade, it is the duty of the examiners to find out the proper reasonfor such absence of the question paper like by the absence of suchquestion paper, the student has been benefitted or he has committedmal practice in writing the examination. Therefore, in my consideredview the word 'sending out the question paper' should be read inaddition to some other overt act on the part of the student ingetting some benefit out of the sending away of question papers fromthe examination hall. Merely because the petitioner has admitted https://hcservices.ecourts.gov.in/hcservices/ that at the time when the flying squad has visited, the questionpaper was not available with him, no presumption can be made that thepetitioner was involved in examination mal practice. In the absenceof any material to show that the petitioner has committed examinationmal practice, as it has is known in common parlour, I do not agreewith the contention of the learned Government Advocate that theenquiry was conducted in a proper manner and opportunity has beengiven. 15. In such view of the matter, the impugned order of therespondent dated 22.06.2009 is set aside and the Writ Petition isallowed. It is made clear that if any criminal case is pendingagainst the petitioner and others, it is for the law to take its owncourse of action. It is stated that after 09.03.2009 incident, thepetitioner was allowed to write other examinations. The respondentis directed to release the result of the other examinations writtenby the petitioner and permit the petitioner to write the physicsexamination in the next session. No costs. Consequently, M.P.Nos. 1and 2 of 2009 are closed.sl Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarToThe Joint Director of Government Examination/Secretary Higher Secondary Examinations,DPI Compound, College Road, Chennai – 6.+ 1 CC TO Mr. C. Prakasam, Advocate Sr.40083.+ 1 cc to Government Pleader SR.40703.Writ Petition No.12664 of 2009& M.P.Nos. 1 and 2 of 2009 KG(CO)EU 27.8.2009.