20 Mar 2010

Natural justice in Academic inquiries: The law revisited

The prudence of law is so wide that it covers almost all spheres. Disciplinary action, be it in any sphere, has thus been made subject to judicial review for times immemorial. The expulsion of candidates/students from examination and subsequent punishment for misconduct, therefore, is not only amenable to judicial scrutiny but is also liable to be overturned for want of fair trial and impropriety of procedure, if any. A recent decision of Delhi High Court revisits the standards set by the Supreme Court for scrutinizing the standards adopted by the Disciplinary Committees in such academic matters. 
11. The learned counsel for the Appellant has vehemently contended that the principles of natural justice have not been complied with and he has not been afforded a fair hearing in the matter. According to the Appellant since in the first statements given by Ishaan and Shashank on 25th April, 2009 his name was not mentioned, he could not have been held guilty without being permitted to cross-examine Ishaan and Shashank. Reliance in this regard is placed by the learned counsel for the Appellant on the decision rendered in the following cases: Khem Chand v Union of India & Ors., AIR 1958 SC 300 (para 29), Transmission Corporation of A.P. Ltd. and Ors. v. Sri Rama Krishna Rice Mill, AIR 2006 SC 1445, K. Sathyasankara Shetty v. Manglore University, Manglore & Anr., AIR 1992 Karnataka 79 (para 26), Rajnish Kumar Rai v. The Gujarat University & Ors. (MANU/GJ/0728/ 2008) (paras 34, 39) and Ram Chander Roy v. University of Allahabad & Ors ., AIR 1956 ALL 40 (para 9).
12. The learned counsel for the Appellant has also challenged the impugned decisions on the ground that the Senate acted as the investigator, the prosecutor and the judge and thus there was violation of the principles of natural justice. Reliance is placed in this regard on the decision of the Hon’ble Supreme Court in the case of Cantonment Executive Officer and Anr. v. Vijay D. Wani & ors., AIR 2008 SC 2953.
13. The learned counsel for the Respondent, on the other hand, has contended that pursuant to the order of this Court dated 12th May, 2009 the Appellant was duly served with the show cause notice, explaining the charges against him, giving him time to file reply and a personal hearing by the Senate. It is contended that as the statements and the pleadings of the Appellant himself were inculpatory there was no need to provide the Appellant an opportunity to cross examine Ishaan and Shashank. Reliance is also placed on the decisions rendered in cases of Hira Nath Mishra and Ors. v. The Principal Rajendra Medical College Ranchi & Anr., AIR 1973 SC 1260, State of Maharashtra v. Prabhu, 1994 (2) SCC 481, Chairman Board of Mining Examinations & Chief Inspector of Mines & Anr. v. Ramjee, AIR 1977 SC 965, Mansoor Alam v. Jamia Millia Islamia & Ors. CWP 3569/2000 and Ashish Bhateja v. Indian Institute of Technology & Ors., CWP 4042/1993.
14. The contention of the learned counsel for the Appellant that the Senate has acted in its own cause is wholly fallacious. It is well settled that in enquiries in Academic Institution strict principles of Evidence Act do not apply and the decision is taken on the basis of preponderance of probabilities. In the present case it was not expected of the Senate to have got recorded the statements of the concerned persons through someone else by appointing investigators and after having recorded the statements only then they could have taken actions against the erring students. By taking the statements of erring students in writing, it cannot be said that the faculty which were also the members of the Senate, acted as an investigating agency and thus in terms of the provisions of the Code of Criminal Procedure it could not have adjudicated the issue and decided the fate of the Appellant.
15. We are in agreement with the contention of the learned counsel for the Respondent that the principles of natural justice cannot be put in straight jacket formula and the application thereof depends on the facts of each case. Decisions in cases of indiscipline in academic institutions should be taken promptly to maintain the high standards of discipline. While conducting such enquiries a full fledged criminal investigation and trial with the procedure as prescribed in the Criminal Procedure Code and the Evidence Act has not to be followed. After enquiry on the basis of the material collected, the same has to be weighed on preponderance of probabilities. The Appellant has been afforded enough opportunity for proving his case. In the present case, on the basis of the statements of the Appellant himself there is evidence to come to the conclusion arrived at by the Respondents and it cannot be said to be a case of violation of the principles of natural justice. In the decision rendered by the Hon’ble Supreme Court in the case of Khem Chand vs. Union of India (supra) in the back drop of the facts of the case the Hon’ble Supreme Court held that an opportunity to deny the guilt and establish the innocence by affording an opportunity to cross examine the witnesses ought to have been afforded to the Appellant therein. In the case of K.Sathyasankara Shetty (supra) the High Court quashed the proceedings as no time was given to the Petitioner therein after giving the charge sheet so that he could prepare his defence. The Hon’ble Supreme Court in the case of Transmission Corporation of A.P. Ltd. (supra) held that no universal rule could be laid down as to whenever the statement of departmental officer is pressed into service for the purpose of adjudication, a right of cross examination would arise. The Hon’ble Court quoted:
“In Advanced Law Lexicon by P. Ramanatha Aiyar (3rd Edition, Vol.4 page 3959 and 3968) the word "reasonable" has been described as follows:
(i) What is 'fair' and proper under the circumstances.
(ii) The expression "reasonable" is not susceptible of a clear and precise definition. A thing which is reasonable in one case may not be reasonable in another. Reasonable does not mean the best, it means most suitable in a given set of circumstances.
(iii) There is no point on which a greater amount of decision is to be found in Courts of law and equity than as to what is reasonable: It is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is meant by reasonable under the circumstance - Lord Romilly. M.R. Labouchere v. Dawson (1872) LR 13 Eq. CA. 325.”
In all the decisions relied upon by the learned counsel for the Appellant it has been held that the compliance of principles of natural justice and fair play has to be looked into on the facts of each case.
16. In this regard reliance is placed upon the decision of the Hon’ble Supreme Court in the case of Board of High School and Intermediate Education, U.P. Allahabad and another v. Bagleshwar Prasad and another, AIR 1966 SC 875. The relevant paragraph 12 reads as follows: “12. In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No. 1 set up Enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them. In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by Universities under Art. 226, the High Court is not sitting in appeal over the decision in question; its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves, and in holding such enquiries, the Tribunal, must scrupulously follow rules of natural justice; but it would, we think, not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary courts of law. In the present case, no animus is suggested and no malafides have been pleaded. The enquiry has been fair and the respondent has had an opportunity of making his defence. That being so, we think the High Court was not justified in interfering with the order passed against the respondent.”
17. Reliance is also placed on the decision in the case of Maharashtra State Board of Secondary and Higher Secondary Education v. K.S.Gandhi and others, (1991) 2 SCC 716, paragraphs 22, 37 and 38 of which reads as follows:- “22. From this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice. The omnipresence and omniscience (sic) of the principle of natural Justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rule of thumb or a straight-jacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances. It is seen from the record and is not disputed, that all the students admitted the factum of fabrication and it was to his or her advantage and that the subject/subjects in which fabrication was committed belong to him or her. In view of these admissions the Enquiry Officer, obviously did not find it expedient to reiterate all the admissions made. If the facts are disputed, necessarily the authority or the Enquiry Officer, on consideration of the material on record, should record reasons in support of the conclusion reached. Since the facts are admitted, the need for their reiteration was obviated and so only conclusions have been stated in the reports. The omission to record reasons in the present case is neither illegal, nor is violative of the principles of natural justice. Whether the conclusions are proved or not is yet another question and would need detailed consideration.
37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstances to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straight Jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.
38. From this legal setting we have to consider whether the inference deduced by the Education Standing Committee that the fabrication of moderators' mark-sheets was done at the behest of either the examinee or the parent or guardian is based on the evidence on record. It is already found that the examinees admitted the forgery of their concerned moderators’ mark-sheets resulting the increase of marks to their advantage. The fabrication of the moderators' mark-sheets was done after the scrutiny by the concerned officials in the office of the State Board at Bombay and before the moderators' mark-sheets were taken out to Pune to feed the computer. Why one is expected or interested to wade through eighty thousand moderators' marks-sheets to locate only the 283 examinees’ mark-sheets and add marks by fabrication? Unless either the examinee or parent or guardian approached the fabricator; gave the number and instructed him/them to fabricate the marks, it would not be possible to know their number to fabricate. The act of fabrication is an offence. Merely that it was done in one subject or more than one makes little difference. Its gravity is not mitigated if it is committed in one subject alone. This is not an innocent act or a casual mistake during the course of performance of the official duty as is sought to be made out. It was obviously done as a concerted action. In view of the admitted facts and above circumstances the necessary conclusion that could unerringly be drawn would be that either the examinee or the parent or guardian obviously was a privy to the fabrication and that the forgery was committed at his or her or parent’s or guardian's behest. It is, therefore, clear that the conclusion reached by the Education Standing Committee that the fabrication was done at the instance of either the examinees or their parents or guardians is amply borne out from the record. The High Court in our view over stepped its supervisory jurisdiction and trenched into the arena of appreciation of evidence to arrive at its own conclusions on the specious plea of satisfying 'conscience of the court'.”
Thus, in our view there is no violation of principles of natural justice and the Appellant has been afforded a fair and reasonable opportunity to defend himself.

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