Wp(C) 3019/2010

(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

W.P.C. 3019/2010 & 3020/2010

IN WP(C) NO.3019/2010.

Tajammal Hussain Choudhury Son of Md Azizur Rahman Village – Lalipather, P.O. Bechamari P.S. Dhing, Dist. Nagaon(Assam).

…Petitioner

-Versus-

1. The Gauhati University Represented by its Vice-Chancellor Gopinath Bordoloi Nagar, Ghy-14.

2. The Vice-Chancellor Gauhati University Gopinath Bordoloi Nagar Guwahati-14.

3. The Executive Council Gauhati University Gopinath Bordoloi Nagar Guwahati-14.

4. The Registrar Gauhati University Gopinath Bordoloi Nagar Guwahati-14.

5. The President Governing Body Ghana Kanta Baruah College Morigaon, Pin-782 105.

…Respondents. 2

IN WP(C) NO.3020/2010

Mussabbir Husszin Son of Md Azizur Rahman Village – Lalipather, P.O. Bechamari P.S. Dhing, Dist. Nagaon(Assam).

…Petitioner

-Versus-

1. The Gauhati University Represented by its Vice-Chancellor Gopinath Bordoloi Nagar, Ghy-14.

2. The Vice-Chancellor Gauhati University Gopinath Bordoloi Nagar Guwahati-14.

3. The Executive Council Gauhati University Gopinath Bordoloi Nagar Guwahati-14.

4. The Registrar Gauhati University Gopinath Bordoloi Nagar Guwahati-14.

5. The President Governing Body Ghana Kanta Baruah College Morigaon, Pin-782 105.

…Respondents.

P R E S E N T

HON’BLE MR JUSTICE A. C. UPADHYAY

For the appellant : Mr AC Borbora,Sr Advocate, with Mrs R Borbora Mr MG Singh Miss M Dutta Miss N Sarma Mr M Smith, Advocates

For the respondents : Mr LP Sarma, Standing Counsel, Gauhati University

Date of hearing : 18.4.2012

Date of judgment : 5.6.2012

JUDGMENT AND ORDER(CAV)

Since both the writ petitions aforementioned arose out of same factual matrix and raised similar questions of law, I propose to take up both these writ petitions together, for hearing and disposal.

2. The petitioners have challenged the order dated 22nd

April, 2010 passed by the Registrar, Gauhati University, stripping them of their BA degrees, conferred to them by the

Gauhati University i.e. the respondent no.1. The facts 4

leading to the filing of the writ petitions may be stated, in brief, as follows:

3. Both the petitioners, who are master degree holders were appointed as lecturers in Ghana Kanta Barua College of

Morigaon, affiliated to Gauhati University. On 19.6.2005,

Naogaon PS Case No.449/2005(under Section 120(B), 306,

468, 420 & 34 IPC), was registered on the basis of seizure of answer-scripts of TDC(Part-I & II) of the Gauhati University from the residence of one Md Abdul Motlaib, a lecturer at

Haji Anfor Ali College, Doboka.

4. It has been stated on behalf of the petitioners that both the petitioners were accredited examiner and evaluator of answer-scripts of the Gauhati University. Both the petitioners were arrested by Nagaon police, on 19.6.2005, in connection with the afore-noted case. During the period of detention, the Controller of Examination of the Gauhati

University, along with a professor of chemistry of the

Gauhati University, visited Nagaon to take the stock of the situation and prepared a report dated 24.6.2005, under the caption “Report on the alleged malpractice by some 5

examiners as reported in some newspapers on 26.6.2005 and the police case registered in Nagaon in this connection”.

Since the petitioners were under detention, they did not have any knowledge of the enquiry so made by the officials of the University nor could they participate in such enquiry.

5. However, basing upon the aforesaid report, the

Executive Council of the University, formed a 2-member enquiry committee headed by Justice(Retired) DN

Choudhury, and Sri K.K.Bora, former chairman of Assam

Higher Secondary Education Council, 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

examiners upto the Zonal Office and the office of the

Controller of Examination, Gauhati University, relating

to evaluation of the answer scripts of the TDS(2+1)

Examination, 2005 of the Gauhati University.

ii) To identify the loopholes, if any, in the system of

conducting examinations by the Gauhati University and

to suggest measures for necessary remedy.

6. The enquiry committee issued show-cause notices to the petitioners on 15.7.2005, asking them to furnish written statement to the committee, if any. Accordingly, the petitioners submitted their statement denying the allegations made in the show-cause notice. However, during the entire period, petitioners had been in judicial custody in connection with this case. They were not aware of the proceedings initiated by the enquiry committee and its observation and recommendation, 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 degrees conferred by the university would not be stripped, in view of the report of the enquiry committee formed by the University.

7. It has been submitted on behalf of the petitioners that although the show-cause notice dated 28.10.2005, allegations were levelled against the petitioners for indulging 7

in bizarre acts of reprehensible nature, there is no categorical allegation as what exactly or precisely was the bizarre acts petitioners had indulged in. Learned counsel for the petitioners has pointed out that though the show-cause notice dated 18.10.2005, issued by the respondent-

University referred to the view-points taken by the Executive

Council as the basis of show-cause notice, proposing for stripping of BA degrees of petitioners; no record/letter to that effect, however, was furnished to the petitioners along with the show-cause notice.

8. The petitioners in their detailed reply submitted on

10.11.2005 to the show-cause notice, categorically asserted therein that they were never summoned by the enquiry committee, nor were they asked to produce, any evidence either documentary or oral in support of their stand. During the course of proceedings, after recording the statement of the petitioners, an assurance was given by the concerned authority that they would be given adequate opportunity, of personal hearing and would also be allowed to examine witnesses in their defence. It has been stated on behalf of the petitioners that however for the past 3 years, they never 8

come across any communication from the enquiry committee for any personal hearing. Neither any date for examination of witnesses was fixed. Finally, the petitioners were not at all afforded any adequate opportunity of being heard. Rather, to their utter shock and surprise, they received a notification dated 22.4.2010 issued by Registrar,

Gauhati University, stripping of their Bachelor of Arts (BA) degree, in pursuance of a resolution adopted by the

Executive Council of the university in its meeting held on

31.10.2009.

9. Mr. Borbora, learned senior counsel for the petitioners, referring to provision of Section 5(e) of the Gauhati

University Act, 1947, (hereinafter Act) submitted 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 -

………………..

“5.(e) to withdraw or cancel Degrees,

Diplomas, certificates or other distinctions

granted or conferred”.

10. Learned senior counsel for the petitioner has pointed out that the petitioners, who were admittedly accredited examiner of answer-scripts of BA Examination, 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 petitioners by the zonal office of the University, for evaluation. Therefore, the University authority apparently, cannot now turn back and disown the action of its zonal office, in distributing the answer-scripts for evaluation by the petitioners, who were its accredited examiners. Referring to the report of the 2-member committee, learned senior counsel for the petitioners has submitted that there is no specific allegation against the 10

petitioners, for having indulged in malpractice with some ulterior motive.

11. In the affidavit submitted by the respondent -University authority, it has been indicated that the names of the petitioners do not exist in the university record. However, it has been admitted in the affidavit that the petitioners were entrusted by the respondent University, through its zonal office, to evaluate 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 appropriate 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 punishing 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 evaluation. If petitioners were not accredited examiners approved by the University, in that case the University authority should not have 11

formally handed over the answer-scripts for evaluation by the petitioners.

Question raised by the petitioner is whether the petitioners were served with any specific charge by the respondent University, in order to carry out a disciplinary proceeding, for withdrawal/cancellation of their B.A. degrees conferred by Gauhati University. Apparently assurances were given of providing adequate opportunity 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 penal consequences affecting the future career of an individual, the principles of natural justice ought to have been followed by giving adequate opportunity of being 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 Naren Das(supra) is quoted below: 12

“6. It is well-settled that in an enquiry of this nature resulting in penal 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 student 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 opportunity 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 any 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 enquiry, he should also have the 13

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 procedure which will meet the requirements of natural justice, if there by no specific rules on the subject.

7. We find in this case that the petitioner was denied inspection of the answer 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 additional allegations were taken note of against the petitioner, besides those mentioned in the show cause notice.

There is, therefore, clear violation of the principles of natural justice in this case. The impugned order of the University is, therefore, quashed and the respondents are directed to forbear from giving effect to the same.” 14

15. Now, having regard to the circumstances, it is required to be seen whether a fair and/or reasonable opportunity was given to the petitioners before their Graduate Degrees were canceled/withdrawn. I do not find that any reasonable opportunity at all was given to the petitioners to explain their position. The question 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 cases, where opportunity has been given. In the cases, where no opportunity has been given, this question does not arise.

16. When an academic authority imposes a punishment to its past student by withdrawing/ cancelling the University degrees in terms of the Rules, it is not doing a mere administrative act. Such punishments carry civil as well as penal consequences. Absence of rule or regulations, guidelines prescribing the procedure to be followed in such cases, may not per-se be illegal, if the authority concerned affords a fair opportunity of being heard to the delinquent by strictly following the rules of natural justice. However, in the 15

absence of rules and/or procedure for withdrawal/ cancellation of degree conferred to a student or a past student, if the degree is cancelled or withdrawn by ignoring the fundamental principles of natural justice, such order would be illegal and otiose.

18. Therefore, in order to rule out any possibility of its failure to safeguard the rights of a delinquent, the University authority should formulate and spell out the procedure, it would adopt and follow to consider withdrawal or cancellation of Degrees, Diplomas, certificates or other distinctions granted or conferred on any past or present student. The delinquent student or past student must be made aware of the specific charge perused against him and the procedure would be followed in the disciplinary proceedings to consider withdrawal or cancellations of

Degrees, Diplomas, certificates or other distinctions granted or conferred by it. In the absence of adequate protection to exercise.

19. If an absolute power is vested on the University authority for cancellation or withdrawal of the 16

degrees/diplomas/distinction of a past student without prescribing the procedure to be followed, it will tend to vest an arbitrary power, which is against the principles of natural justice. More so, absence of rules or guidelines prescribing the procedure for taking up disciplinary action against a past student for withdrawal or cancellation of Degrees, Diplomas, certificates or other distinctions granted or conferred ,cannot be interpreted as an absolute and/or arbitrary power of the

University authority to follow any procedure it preferred.

20. It is a settled principle of law that unless otherwise provided by the statute the power of punishment does not carry with it the power to give, punishment arbitrarily. Any punishment awarded without affording an opportunity to the person, to give an explanation for his conduct, would be illegal.

21. From the facts and circumstances discussed above, in the present case, there has been a clear violation of the principles of natural justice by the respondents, in awarding the punishment of withdrawal of the Graduate degrees of the petitioners. Accordingly, the writ petition is allowed. The impugned orders passed by the respondent-University are 17

hereby quashed. However, there shall be no order as to costs.

23. With the above observations and directions, both the writ petitions stand disposed of.

JUDGE

Na/