IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: October 12, 2017 + W.P.(C) 7943/2016, CM No.32968/2016 SHWETA RAJ .....
... PetitionerThrough: Ms. Suroor Mander, Adv. Versus JAWAHARLAL NEHRU UNIVERSITY ..... Respondent Through: Ms. Ginny J.
Routray, Ms. Anushka Ashok & Ms. Bhavna Pal, Advs. CORAM: HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENTV. KAMESWAR RAO, J1 The present petition has been filed with the following prayers:-
"“Petitioner respectfully prays that this Hon‟ble Court may be pleased to:-
"(i) Issue a writ in the nature of certiorari quashing the impugned order vide Office Order No.206/CP/2016 dated 22 August 2016 by the Chief Proctor of the University imposing punishment on
... PetitionerNo.1 of a fine of Rs.5,000/- (Rupees Twenty Thousand Only) and the W.P.(C) No.7943/2016 Page 1 of 40 requirement of furnishing an undertaking; and ii). Issue a writ in the nature of Certiorari quashing the Order No.154/CP/2016 dated 25 April 2016 by the Chief Proctor of the University imposing punishment on
... Petitionerand to declare the proceedings resulting in such punishment as void being violative of the fundamental and constitutional rights of the
... Petitioner; and iii). Pass such further order or orders as this Hon‟ble Court may deem fit.” 2. This Writ Petition seeks quashing of the orders dated August 22, 2016 and April 25, 2016 whereby the
... Petitionerhas been punished with a fine of Rs. 5,000/- (Rupees Five Thousand Only) [initially Rs.20,000/- (Twenty Thousand)]. and has been ordered to file an undertaking in a prescribed format.
3. The facts as contended by Ms. Suroor Mander, learned counsel for the petitioner are, the
... Petitioneris a student pursuing her M.Phil at the Centre of Indian Languages, School of Language, Literature and Culture Studies, Jawaharlal Nehru University.
... Petitionerhas been punished for 'participating in the organisation of the event' on February 9, 2016 at the JNU campus where some 'objectionable slogans' were allegedly raised, which the
... Petitionerhas consistently denied and she and the student's union have categorically condemned such slogans. The High Level Enquiry Committee (hereinafter HLEC) had sent notices to the
... Petitionerseeking her presence before the Committee and asking her to bring evidence to defend herself. At no W.P.(C) No.7943/2016 Page 2 of 40 point was the
... Petitionerinformed of the exact charges against her. In response to the notices the
... Petitionerhad on February 25, 2016 and February 26, 2016 had written to the HLEC denying raising alleged "anti- national" slogans and asked the HLEC to share the details of the charges and provide her with the evidence so that she can prepare her defence. However, the High Level Committee did not respond to the
... Petitioner's letters or share the evidence so that the
... Petitionercould mount a cohesive defence. Without responding to the issues raised in above dated letters submitted by the
... Petitioner, on 14 March 2016, the High Level Committee issued her a Show Cause Notice finding her guilty of "(xxv) Any other act which may be considered by the VC or any other competent authority to an act of violation of discipline and conduct” which is residual clause available to the Vice Chancellor. It is contended by Ms. Mander, the
... Petitionerwas not charged with organizing the meeting, or of raising slogans. Neither description of the conduct by which she did any of this, nor the details of what material was there in support thereof was supplied to the petitioner.
4. According to her, the
... Petitionerwas provided a truncated copy of Report of the High Level Committee two days after the Show cause notice was served on the
... Petitioner. The
... Petitionerdespite all the infirmities filed a reply to the show cause notice on March 18, 2016. In this reply too, the
... Petitionerplaced on record the completely inadequate material given to her for defence, the lack of clarity on the conduct upon which the charges were based and the complete denial of all the material evidence. Ms. Mander stated, the petitioner also W.P.(C) No.7943/2016 Page 3 of 40 denied all the charges levelled against her. Again without acknowledging or responding to the issues raised by the
... Petitioneror providing any of the materials relied upon by the Committee, the Proctor vide Order No.157/CP/2016 dated April 25, 2016 issued by the Chief Proctor was served upon the petitioner imposing punishment of Rs.20,000/- (Rupees Twenty Thousand) for "Participating in organizing the event at Sabarmati Ground".
5. Ms. Mander submitted, the
... Petitionerwas punished for charges that were neither raised in the show cause notice nor the Report of the High Level Committee. Despite the fact that the Punishment Orders were issued with the approval of the Appellate Authority (the Vice Chancellor), the
... Petitionerfiled an appeal under Clause 32 (5) of the Statute to the Vice Chancellor against the punishment on 02 May 2016. The
... Petitioneralong with others filed Writ Petition 4398 of 2016 before this Court seeking quashing of the punishment order. This Court disposed off the Petition as the Appeals filed by the
... Petitionerand others were pending before the Appellate Authority of the University. This Court also stayed the operation of the Appellate Authority's order for two weeks to allow for the same to be challenged before this Court. On June 16, 2016, the
... Petitionerwas called upon by the Appeals Committee for the hearing. The
... Petitionerwas not provided with any material against her prior to the hearing and only provided the evidence at the time of hearing. This was a voluminous file which she was asked to inspect on the spot and which she was naturally unable to inspect.
... Petitionerlater came to know that video W.P.(C) No.7943/2016 Page 4 of 40 recordings were shown to others during the hearing but no video recordings were shown to her. She submitted, the
... Petitionerwas then asked to write an 'appeal' on the spot, during her hearing, thereby completely ignoring the Appeal already filed by her. Essentially, when one of the major grounds of appeal by the
... Petitionerwas that she was never made aware of the evidence against her, the Appellate Authority allowed her a cursory examination of the material only during the hearing and told her to write a statement which was treated as the Appeal, discarding the actual Appeal filed by the
... Petitionerafter due thought and legal assistance. This procedure is unheard of, and for the reason that it violates every principle of natural justice. According to Ms. Mander,
... Petitionerhad also pointed out in her appeal that, if there were any witnesses against her, she should have been given the chance to question them. The lack of opportunity to cross-examine witnesses during disciplinary proceedings by the Respondent has earlier been held to be a violation of the principles of natural justice by this Court in Jawaharlal Nehru University v. Flora Gupta (2013) 133 DRJ299(DB), wherein according to her, this Court had observed about disciplinary proceedings held by the Respondent University that "Even if it was not subjected to any rigid rules, the minimum that was required was to make the petitioner know about the allegation against her and the basis of said allegations and during the enquiry to allow her to know as to what deposition or evidence adduced against her. Despite no rigid rules, if something is as stated against any person, he has a right to ask that person such questions which will impeach his deposition. There is no presumption in law that whatsoever will be W.P.(C) No.7943/2016 Page 5 of 40 stated before one-man enquiry committee by any professor or official of the University would be nothing but truth and has to be accepted as such."
She submitted, the Appellate Authority has proceeded precisely on such an invalid presumption that the statement of a witness before the Enquiry Committee could be nothing but the truth. No avenue of cross-examination or even traversal of such statements has been provided to the
... Petitionerby the Respondent University. Ms. Mander submitted, the order of the Appellate Authority is bad for non-application of mind especially because it does not even advert to the grounds raised in the Appeal by the
... Petitioneror to the grounds raised by the
... Petitionerin Writ Petition (Civil) No.4398/2016 through which the
... Petitionerhad challenged the original order of punishment passed by the High Level Enquiry Committee of the Jawaharlal Nehru University. The following grounds of Appeal have also not been considered by the Appellate Authority at all, which amounts to complete non-application of mind: i). No specific charge was framed against the
... Petitioneras required by Rule 7 of the Norms and Procedures. In fact, the
... Petitionerwas punished for participation in organizing the event but the original show cause did not mention this allegation at all. The
... Petitionerwas punished under the residuary clause, that is, "(xxv) any other act which may be considered by the VC or any other competent authority to be an act of violation of discipline and conduct."
... Petitionerhas thus been punished for acts for which she was never asked to show-cause for. W.P.(C) No.7943/2016 Page 6 of 40 ii)
... Petitioner's defence to show-cause has to be 'studied and examined' under Rule 8 and then a report has to be prepared and appropriate punishment is to be recommended as per Rule 9. No such subsequent report has been prepared after studying and examining the defence of the
... Petitioners to the show cause notice. Thus, non-compliance of Rules 7, 8 and 9 has rendered the
... Petitionerunable to defend herself in any meaningful manner and has defeated the protection of due process available to
... Petitioneras per the University's own rules and the laws of the country. iii) Neither a copy of the full report of the High Level Enquiry Committee was provided to the
... Petitioner, nor has any of the purported evidence like statements of witnesses or videos, been supplied to her. The
... Petitionerwas only supplied with a truncated 8 pages of the High Level Enquiry Committee Report. iv) Further, during the High Level Enquiry Committee proceedings no opportunity of cross examination of witnesses was given. The same has been held to be a violation of the principles of natural justice by this Court in Jawaharlal Nehru University v. Flora Gupta (2013) 133 DR.T299(DB). Ms. Mander also stated that the only deposition placed on record by the respondent is the statement of Mr. Naveen Yadav on February 11, 2016, who stated the petitioner was present at the location. Mere presence on location cannot be construed to mean that the petitioner was an organiser of the event. W.P.(C) No.7943/2016 Page 7 of 40 Further, she would submit, the requirement of an undertaking to be filed by the
... Petitioneris a violation of her rights. The undertaking is vague binding the
... Petitionerto not participate in any unauthorised activities even by her presence and to not commit any act which is against the dignity of the University.
... Petitionerfears that the vagueness inherent in this undertaking, which is in any case unjustified, lead to a further violation of her fundamental and constitutional rights. She prays for the reliefs as prayed in the writ petition be granted.
6. On the other hand, Ms. Ginny Routray, learned counsel for the respondent would submit, the
... Petitionerwas given ample opportunities to appear and depose before the Enquiry Committee along with the liberty to carry materials and evidences in her defense at the stage of Enquiry, Show Cause Notice and Appeal. The
... Petitionerfailed to respond to the first notice dated February 12, 2016. Subsequently, a second notice was issued on February 16, 2016. A third notice was served to the
... Petitioneron February 18, 2016 asking her to appear before the committee on February 26, 2016. Further, a fourth notice was issued to the
... Petitioneron February 26, 2016 asking her to appear before the Committee on March 03, 2016, however, the
... Petitionerabstained herself from appearing before the committee and clearing her stand.
7. The
... Petitioneron February 26, 2016, the day on which she was to appear before the HLEC, addressed a letter to the HLEC, wherein she stated that- W.P.(C) No.7943/2016 Page 8 of 40 I would to participate in any free, fair and unbiased enquiry into the incidents of that day, but I know nothing about the composition of the Committee...... The principles of natural justice entail that I should be given full opportunity to appreciate the charges against me, who my accusers are, what is the specific nature and substance of the complain(s) against me, and the material evidence on which such charges are based. None of this has been provided to me. The principles of natural justice also enable me full opportunity to present my case, have witnesses examined by the Enquiry Committee, and to cross examine the witnesses who have accused and/or deposed against me....... The suspension orders by the JNU administration have been widely circulated and used to declare me as “guilty”......... I would like to state that I am willing to cooperate with any fair enquiry committee. However, in the interest of natural justice, the concerns I have listed (which accrue to me as a citizen of this nation) in this letter need to be addressed. I sincerely request you to provide me the information I seek, and explicitly put into place the unequivocal guarantee of the principles of natural justice. I am fully ready to cooperate with an impartial, unbiased enquiry.
8. Ms. Routray would submit, that the
... Petitionerwithout having W.P.(C) No.7943/2016 Page 9 of 40 appeared before the Committee cannot claim that the principles of natural justice have not been followed by the
... RESPONDENTS. Had the
... Petitionerappeared before the Committee, would have been privy to all the information and evidence collected by the HLEC, moreover, she would have been given the right to cross examine. She reiterated that the
... Petitionerwas served with 4 notices to appear before the Committee, the
... Petitionerherself failed to avail the opportunity given to her and thus, there was no violation of Principles of Natural Justice and Fair Play. Further, she would submit the
... Petitioner’s letter dated February 26, 2016 is similar to another
... Petitioner’s letter (in terms of exact content and style of writing) also dated February 26, 2016 in W.P. (C) No.7934/16, Anant Prakash Narayan V. Jawaharlal Nehru University and W.P. (C) No.7936/16, Chintu Kumari V. Jawaharlal Nehru University, therefore making it evident that there was no application of mind on part of the
... Petitionerand she thus colluded and conspired with the other
... Petitioners to boycott the disciplinary proceedings and thus, making a mockery of the entire process by claiming violation of the principles of natural justice. According to Ms. Routray, same trend is observed in her subsequent communications as well. Further, on February 26, 2016 a letter and Email was addressed to the
... Petitionerby the
... RESPONDENTSwhich stated that- This is in continuation with our earlier notices sent to you. The expanded Committee would like to meet you on 29th February, 2016 at 3.00 pm in Room No.108, Administrative W.P.(C) No.7943/2016 Page 10 of 40 Block and get your statement. Please note that the temporary suspension from academic activity in only during pendency of the enquiry which will be over on 3rd March, 2016 and the Committee does not presume any on guilty. This is the last opportunity for you to meet with the Committee and please do so without any apprehension.
9. She submitted that this was the fourth notice issued to the
... Petitioneryet she failed to appear before the Committee even though she was assured that the Committee did not presume anyone guilty. According to her, the
... Petitioner’s Counsel submission that the
... Petitionerbeing a female was apprehensive to appear before the Committee as she feared for her safety, is untenable as the
... Petitionerwas residing within the campus and thus; her feeling unsafe within the campus is not a viable excuse. Further, the Respondent had taken steps to ensure the safety and tight security for all the students within the campus, in fact even morning walkers were prohibited to enter the campus. According to her, it is thus, evident that the
... Petitionerdeliberately avoided appearing before the committee.
10. On February 29, 2016, the
... Petitioneragain wrote to the HLEC wherein she confirmed the receipt of the letter dated February 26, 2016 and again reiterated the contents of her letter dated February 26, 2016 and further stated that I also notice, that in your letter that the HLEC has only afforded me a final chance for deposition. Ms. Routray submitted, the
... Petitionerhowever failed to appear on all four dates and did not provide any valid reason of not doing so. According W.P.(C) No.7943/2016 Page 11 of 40 to her, the
... Petitionernever intended to appear before the Committee to begin with therefore, sought excuses after excuses to avoid the same.
11. She would submit, a Show Cause Notice dated March 14, 2016 was issued to the
... Petitionerwhich stated that- As per the High Level Enquiry Committee findings, you (Ms. Shweta Raj, Registration Number :
39828. Enrolment No:
13. 54/MT/008, Year of Admission:
2013. M.Phil/Ph.D. Student, Centre of Indian Languages, School of Language, Literature and Culture Studies, JNU, New Delhi) have been found guilty on the following account under the Clause 3, Category II of Rules and discipline and proper conduct of students of JNU. (xxv) Any other act which may be considered by the VC or any other competent authority to be an act of violation of discipline and conduct.
12. The Show Cause Notice further asked the
... Petitionerto explain why disciplinary action should not be initiated against her for indulging in the above mentioned acts. The
... Petitionerwas asked to submit her reply to the Chief Proctor’s Office latest by March 16, 2016, 17:00 hrs, which later extended till March 18, 2016 failing which it would be presumed that the
... Petitionerhas nothing to say in her defense and the office would proceed further in the matter. A copy of HLEC report was also conveyed to the
... Petitionerwhich clearly outlined the act and conduct of the
... Petitionerbased on the W.P.(C) No.7943/2016 Page 12 of 40 depositions which led to issuance of the show cause notice.
13. She would also submit, the
... Petitionerresponded to the Show Cause Notice on March 18, 2016 wherein she stated that- I continue to hold the position that I am willing to participate in the disciplinary inquiry process after I am made aware of the charges against me and the issues raised be me are answered......... Moreover, it is important to note that the depositions and the evidence that form the basis of the findings against me have not been served with the show-cause or the subsequent report. Without a copy of the depositions or a list of witnesses against me or a chance of cross examining them, I have been judged guilty against University rules and principles of natural justice........ Despite my repeated queries I was not informed that I would be allowed to cross examine any witnesses. In any case, the right of cross examination has no meaning unless the student knows what is it that is being said and by whom..... Without the material proposed to be used against me, or an indication of when I would get an opportunity of cross examination, what effective defence can I take?.
14. According to Ms. Routray, the
... Petitionerwas not provided with copies of documents as the University in its wisdom and in view of the W.P.(C) No.7943/2016 Page 13 of 40 atmosphere, considering the sensitivity of the matter and in the interest of the witnesses’ safety only provided for the same to be inspected before the Committee. Further, the Norms and Procedures along with SOP state that
Members of the committee will sign a confidentiality/Non-Disclosure Statement.
9. Any information shared confidentially to the Committee to the Committee members will not be shared by them after the terms of the Enquiry Committee us over.
10. No cell phone will be brought into the committee room when any person comes to depose before it.
11. No statement will be issued to the press during the enquiry period and also after the enquiry period.
12. All communication from the University to the Committee and vice a versa will be in writing.
15. She submitted, that even though the
... Petitionerand other students were not provided the copies of the documents at the stage of show cause, the same was available to them to access had they appeared before the committee to depose. Thus, they themselves failed to avail the opportunity provided to them. She would further submit, the
... Petitionerwould have been given an opportunity to cross examine had he come forward to record her statement. She would rely W.P.(C) No.7943/2016 Page 14 of 40 on the judgment of the Supreme Court in the case of K.L. Tripthi V. State Bank of India & Ors. (1984) 1 SCC43 16. She stated, that at the stage of appeal the decision is to be taken only from record before the Appellate Authority. Rules under the Statute 32(5) state that the punished student has the right to appeal against punishment and Vice Chancellor is the empowered authority to deal with Appeals. The
... Petitionerchose not to avail opportunities given to her, at the stage of enquiry, by admittedly not appearing before the Committee despite being in the campus, hence the Writ Petition on this ground alone is not maintainable.
17. According to her, the
... Petitioneris a student studying in JNU and resident of Hostel in JNU. The Respondent is Jawaharlal Nehru University (JNU) established and incorporated by an Act of Parliament in the year 1966. That at 12 pm on February 09, 2016, the Respondent got know that some students were planning to host an “anti-national event” in the evening at Sabarmati Dhaba. A meeting was called in the Vice Chancellor’s Office, wherein it was discovered that permission was sought from the Additional Dean of Students on the false pretext of holding a poetry reading competition at Sabarmati Dhaba. Despite the alleged “permission” immediately being withdrawn by the DOS, the event was carried on which led to an enormous law and order situation.
18. On February 11, 2016 forthwith a High Level Enquiry Committee (HLEC) was constituted by the Vice-Chancellor to enquire W.P.(C) No.7943/2016 Page 15 of 40 into the incident that took place on February 09, 2016 in the Respondent’s campus. By virtue of Section 5 (10) of the JNU Act read with Statute 32 (1) of the Statutes of the University- “The Vice Chancellor has been vested with all the powers relating to discipline and disciplinary action in relation to students.” The HLEC superseded the Proctorial Enquiry vide letter dated February 11, 2016 wherein it is stated that- This committee supersedes the Proctorial Enquiry Committee and the earlier notice dated 11th February, 2016 of the Chief Proctor stands withdrawn.
19. According to her, the HLEC followed SOP being norms in view of the nature and the need of the enquiry. The terms of reference of the Enquiry entailed formulation of SOP. The SOP norms are essentially analogous to the Norms recommended for a Proctorial enquiry. The 3 member Committee later expanded to by the Vice Chancellor mainly consisted of University Professors and since it was an internal enquiry of JNU, no third party was allowed to be present during hearing. Further, no one was allowed to be represented by a third party. The terms of Reference for the Committee was: (i) To enquire into the incident and ascertain sequence of events. (ii) Identify any lapses that may have taken place, and W.P.(C) No.7943/2016 Page 16 of 40 (iii) On the basis of the findings, recommend actions to be initiated by the University as per its statutes and guidelines.
20. It was contended by her, that the
... Petitionerwas given ample opportunities to appear and depose before the committee along with the liberty to carry materials and evidences. The Committee issued their First Notice on February 12, 2016 and subsequently Second Notice on February 16, 2016 and Third Notice on February 18, 2016 along with a communication dated February 26, 2016 to the
... Petitioner, directing her to appear before the committee and explain her position about the incident that took place on February 09, 2016 near Sabarmati and Ganga Hostel. Despite this the
... Petitionerfailed to appear before the committee. The above mentioned notices were dispatched via the Central Dispatch of the University which is an independent department within the University. She would state, the notices were served at all her known addresses including her Hostel room and email-id. Further, as per the Hostel Manual of the University concerning Norms governing Hostel Life Chapter 2, Clause 2.5.3, states that – “A resident who wishes to stay out late or remain absent overnight shall inform the warden concerned in the prescribed form.” However, there was no intimation on behalf of the
... Petitionerthat she would not be available in the hostel. Ms. Routray’s submission is despite notices being served, the
... Petitionerfailed to appear before the Enquiry Committee. Thus, the
... Petitionerherself lost the opportunity to appear before the committee and clear her stand.
21. According to her, one week extension i.e. upto March 03, 2016 W.P.(C) No.7943/2016 Page 17 of 40 to submit the recommendations was granted to HLEC. Thereafter the term of the Enquiry Committee was further extended till March 11, 2016. The HLEC followed Standard Operating Procedures devised by the HLEC specifically for the said enquiry. The HLEC spent considerable time in examining all the evidences pertaining to the event which included taking written depositions of eye witnesses and security officials, posters, SMS withdrawing consent to hold Anti- National event, form for seeking permission, examining the video clips submitted by JNU Security Office and scrutinizing various documents/posters related to this incident. The video submitted to the Committee by the CSO was duly authenticated by a Government approved agency: Truth Labs, Bangalore. Subsequently to enquiry procedure, the HLEC recommended that the
... Petitionerbe charged under Category II of (Rules of Discipline and Proper Conduct of Students of JNU) of the statutes of the University and be fined Rs.20,000/-. The HLEC submitted its report along with recommendations to the Vice-Chancellor on March 11, 2016.
22. She would submit, the HLEC gave ample opportunities to the
... Petitionerand after repetitive reminders and notices the
... Petitionerchose not to appear. According to her, the recommendation for disciplinary action was based on the findings of the HLEC. The HLEC recommended charges as well as punishment as per the Statutes and guidelines of JNU. The Chief Proctor, after perusing the report of the HLEC, issued a Show Cause Notice on March 14, 2016 and along with an extension dated March 16, 2016 along with a copy of HLEC W.P.(C) No.7943/2016 Page 18 of 40 report to the
... Petitioner.
23. She submitted, the Respondent subsequently on April 25, 2016, after more than a month, passed an office order wherein it was stated that- The HLEC invited Ms. Shweta Raj (Registration Number- 39828, Enrolment No:
13. 54/MT/002, Year of Admision:
2013. M. Phil./ Ph.D. Student, Centre of Indian Languages, School of Language, Literature and cultural Studies) to appear before the Committee on 15 February 2016, 18 February 2016, 26 February 2016, and 29 February 2016 to put her defence. Ms. Shweta Raj failed to apper before the HLEC inspite of these notices. The university ‘Rules and discipline and proper conduct of students of JNU’, Clause 3- „Categories of misconduct and indiscipline‟, Category-II, Sub-Category (xxv) prohibits „Any other act which may be considered by the VC or any other competent authority to be an act of violation of discipline and conduct‟. As per the HLEC recommendation, Ms. Shweta Raj has been found guilty to a. Organizing the event at Sabarmati ground at 4.45 pm b. Shouting objectionable slogans in wrongfully organized event W.P.(C) No.7943/2016 Page 19 of 40 Based on this finding, the Committee recommended a fine of Rs.20,000/-. Based on the above observations and recommendations, Ms. Shweta Raj was issued a Show Cause notice dated 14 March 2016 and provided with a copy of the HLEC recommendations of her reference. But her reply to Show Cause has not been found satisfactory. Keeping in view the above observations, a fine of Rs.20.000/- payable by 13 May 2016 is proposed on Ms. Shweta Raj, failing which the hostel facility will be withdrawn with immediate effect and further registration will not be allowed.
24. The
... Petitionerappealed against the above mentioned Office Order vide letter dated May 09, 2016 wherein the
... Petitionerreiterated the contents of her previous communications and asked to set aside the said Office Order further denying the charges levelled against her. The Chief Proctor vide letter dated May 02, 2016 to the
... Petitionerbearing the subject Appeal to withdraw Office order No.159/CP/2016 dated 25 April 2016 stated that With Regard to your representation dated 2 May 2016, on the subject noted above, it is informed that Chief Proctor desired to meet you and discuss.
25. She stated, this Court vide Order dated May 13, 2016 directed that the Order shall not be given effect to till the appeals of the
... Petitioners are heard and disposed of. Subsequently, the
... Petitionerwas W.P.(C) No.7943/2016 Page 20 of 40 given provisional admission to continue in the present semester keeping in view the Order dated May 13, 2016 of this Court. The Respondent vide their letter dated June 13, 2016 to the
... Petitionerstated that- With reference to your appeal against the Report/recommendations of the High Level Enquiry Committee (HLEC), regarding 9 February incident JNU campus, you are requested to appear before the Vice Chancellor, Appellate Authority of the University and depose on 16 June 2016 at 4.00 p.m. at Vice Chancellor‟s Office.
26. According to Ms. Routray, the Respondent finally issued the Office Order No.201/CP/2016 dated August 22, 2016 wherein it was stated that- On being asked by the Appellate Authority “Were you present at the Sabarmati Dhaba to attend the event on 9th February, 2016?.” In response to the above question she said that “she will not speak anything until and unless she is provided with a photocopy of all the documents requested by her in her earlier representations to the University Authorities”. It is important to note that Ms. Shweta Raj was provided a complete set of files (Security depositions, copies of all relevant videos, copies of statements given by witnesses, copies of all correspondence, copies of the report W.P.(C) No.7943/2016 Page 21 of 40 of the HLEC, all other documentary proof) used by the HLEC to arrive at the punishment in respect of Ms. Shweta....
27. She submitted, the
... Petitionerwas asked other questions however, she did not cooperate. She would also state, the Appellate Committee has held as under:-
"Ms Shweta Raj was given ample time by the committee to examine all the files before she could write her appeal and she read through these files and wrote her appeal. Evidence
Mr. O.P. Yadav, Security Staff mentioned in his deposition that Ms. Shweta Raj was among other students who were found putting up posters and setting up a public address system. Recommendations She expressed her inability to pay the fine of Rs. 20,000/-. She also clearly states in her written appeal that she neither was an organizer of the event occurred on 9th February, 2016 not she participated in shouting objectionable slogans. She also expressed her condemnation for holding such an event. The committee considers that her punishment may be moderately by the Appellate Authority. In spite of Ms. Shweta Raj having been found guilty, appellate authority W.P.(C) No.7943/2016 Page 22 of 40 considered her case on humanitarian ground and reduced a fine to Rs.5000-.
28. She would justify the finding inasmuch as the statement of Naveen Yadav has been corroborated by both O.P. Yadav and V.P. Yadav. She would also submit, the copies were admittedly inspected by the
... Petitionerbefore the Appellate Committee. Further, no rejoinder was filed to controvert the veracity of the depositions.
29. According to Ms. Routray, that the
... Petitionerin her communications and appeal stated that she was not the organizer of the event nor she was a party seeking permission for the event. However, the HLEC Report clearly stated that among other students who were gathered there who were busy organizing the event were Mr. Ashutosh Kumar, Mr. Rama Naga, Ms. Shweta Raj, Ms. Chintu Kumari, Mr. Anant Prakash and Ms. Banojyotsna Lahri. Keeping in view of this, even though the fine of the
... Petitionerwas reduced the same was not waived.
30. That the University’s autonomy means its right of self- government particularly, it’s right to carry on its legitimate activities without interference from any outside authority. That the petitioner against whom charges were framed was given adequate opportunities to defend herself, and the committee followed the rules of natural justice while holding the enquiry. That it is a settled law that matters falling within the jurisdiction of educational authorities should normally be left to their decision and this Court would not interfere W.P.(C) No.7943/2016 Page 23 of 40 unless it thinks it must do so in the interest of justice. She stated, this Court in Jawaharlal Nehru University V. Flora Gupta, LPA5702012 & CM No.14010/2012 held that- The grounds on which administrative action is subject to control by judicial review are, “illegality”; “irrationality” and “procedural impropriety”. The Court will be entitled to interfere in such mattes if the decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety. To be “irrational” it has to be held that on material, it is a decision “so outrageous” as to be in total defiance of logic or moral standards. If the power is exercised on the basis of facts which do not exist having which are patently erroneous, such exercise of power shall be vitiated. Exercise of power will be set aside if there is manifest error in the exercise or such power is manifestly arbitrary. To arrive at a decision on “reasonableness” the court has to find out if the respondents have left out a relevant factor or taken into account irrelevant factors.
31. That the Respondent has acted within their authority, exercised their judgment in good faith, and followed the applicable laws. The constitutional provisions, the provisions of the Act, the Statute and the Ordinances and the Principles of Natural Justice have been complied with by the Respondent. The
... Petitionerwas served with notices at her hostel, at her various addresses and was asked to show cause and was also given opportunity to defend herself before the enquiry committee. W.P.(C) No.7943/2016 Page 24 of 40 The
... Petitionerhowever deliberately avoided proceedings.
32. She would also submit, only certain documents relied upon by the HLEC were filed before this Court and the entire evidences, documents, notices and proceedings are maintained by the Respondent in their official files. The same are available for any other scrutiny as and when the same may be requisitioned by this Court. She would state, the Legal Submissions made and judgements relied upon in Umar Khalid V. JNU, W.P. (C) 7826/2016 and Anirban Bhattacharya V. JNU, W.P. (C) 7828/2016 may be read as part and parcel of the present submissions. The judgments relied upon by the learned counsel for the respondent are:-
"(i) K.L. Tripathi v. State Bank of India and Ors 1984 (12) SCC43 (ii) State of Gujarat v. Pagi Bhura Bhai Rumal Bhai AIR1969Gujarat 260; (iii) Ajeet Seeds Ltd. V. K. Gopal Krishnaiah 2014 (1) SCC685 (iv) Chief Commissioner of Income Tax (Administration) Bangalore v. V.K. Gururaj and Ors. 1996 (7) SCC275 (v) State of Punjab v. Bakhshish Singh 1997 (6) SCC381 (vi) Suresh Koshy George v. University of Kerala AIR1969SC198 W.P.(C) No.7943/2016 Page 25 of 40 (vii) State Bank of Patiala v. S.K. Sharma 1996 (3) SCC36 (viii) Ram Chander Roy v. Allahabad University AIR1956ALL40 (ix) V. Ramana v. APSRTC & Ors 2005 (7) SCC335 (x) M.V. Bijlani Vs. UOI & Ors. (2006) 5 SCC88 33. She prayed, this Court should dismiss the writ petition of the petitioner.
34. Having heard the learned counsel for the parties and perused the written arguments/submissions submitted by the counsels, it is noted that the subject matter of this petition is, the orders passed by the Competent Authority on April 25, 2016 whereby the Authority has imposed a penalty of fine of Rs.20,000/-, which order has been modified to the extent that the fine has been reduced to Rs.5,000/- with a direction to give an undertaking. The enquiry relates to the events held on February 09, 2016 at the University Campus. The grounds of challenge by the petitioner are that the same was held in violation of principles of natural justice. Neither copy of full report of HLEC was provided to her nor any purported evidence like statement of witnesses or videos were supplied to her. That apart, no opportunity to cross examine the witnesses was given. The petitioner was never specifically charged with any act that required explanation let alone defence. She was not informed of the acts, which contributed to such a charge or the evidence and material by which the said charge was to be established. The petitioner has been found guilty under the residuary clause, which was not explained in the show cause notice. W.P.(C) No.7943/2016 Page 26 of 40 This is in violation of Rule 7 of the Statute 32(5) of the Statutes of the University. The petitioner was not given any material on the basis of which HLEC has concluded she was the organizer of the event or had participated in the same. The University Statutes envisages that there shall be a report before the show cause notice and also after the application of mind post show cause notice and before imposition of penalty. The only material, the petitioner had for the purpose of understanding the charges against her was the truncated extract of HLEC report. Even the procedure evolved by the Appellate Authority was arbitrary. The petitioner had in her appeal asked for the material, being relied on, against her, should be provided to her; the same was not done. The voluminous file which the petitioner was asked to inspect on the spot could not be inspected. The petitioner later came to know the video recordings were shown to others during the hearing but no video recordings were shown to her. There was neither facility nor time to review all the material in a meaningful way. The petitioner was asked to write appeal on the spot during her hearing thereby completely ignoring the appeal earlier filed by her. The impugned order dated August 22, 2016 does not give an impression that her appeal was read. It is her case that the enquiry is in violation of the judgment of this Court in Jawaharlal Nehru University v. Flora Gupta (supra).
35. On the other hand, the respondent has justified the impugned action contending that the enquiry proceedings were held following the principles of natural justice and the Rules/Statutes. It is the W.P.(C) No.7943/2016 Page 27 of 40 petitioner, who failed to come forward and depose before the Authority. That apart, the respondent also highlighted the seriousness of the charges for which the petitioner was held guilty. The petitioner had never intended to appear and depose before the Authority. That apart, the appellate proceedings were held after giving due opportunity to the petitioner to inspect the documents and after inspection of the documents and upon hearing and inability of the petitioner to answer the queries put by the Appellate Authority, the appellate order was passed.
36. There is no dispute that the petitioner had filed an Appeal dated May 02, 2016. It is a conceded fact that the Vice Chancellor- Appellate Authority had held its meeting on June 16, 2016. There is also no dispute that the petitioner was shown the record of the enquiry. The parties are at variance about the duration for which the record was shown. It is a conceded fact that a hearing was given to the petitioner on the same day, which resulted in the passing of the appellate order on August 22, 2016. In her appeal dated May 02, 2016, the petitioner has stated that basis for punishment is factually inaccurate. It was her stand that she did not participate in organizing the event. She was not party seeking permission for the event. She has not been given the materials on the basis of which the HLEC has concluded that she was one of the organizer of the event. The show cause notice did not specify the charge against her nor any material by which it was proposed to be established, was shown. The enquiry against her had violated the Statutes and the relevant Rules of the University. The W.P.(C) No.7943/2016 Page 28 of 40 HLEC report was truncated as she was given only eight pages. It was only the report, which was shared with her, not the corresponding annexures, depositions, statement of witnesses. She stated, that the finding of the HLEC is perverse. Neither the HLEC report nor the order dated April 25, 2016 shows application of mind. In the end, she stated that without any opportunity to study the evidence and depositions against her, she is prejudiced.
37. Clause 12 of the Norms and Procedure followed during enquiry stipulates that every punished student has a right to appeal. In the case in hand, after this Court had passed the order on May 13, 2016 in the earlier writ petition filed by the petitioner, the respondent University issued a communication dated June 13, 2016 asking the petitioner to appeal to the Vice Chancellor and depose on June 16, 2016. The communication does not refer to the fact that the petitioner shall be given the relevant record/documents for inspection. Be that as it may, the learned counsel for the parties agree that the files/records/documents before the HLEC were given to the petitioner on June 16, 2016 to enable her to peruse the same and make submissions on the same day. Even assuming, three hours were granted to the petitioner to inspect the documents on June 16, 2016, some time need to have been granted to the petitioner to apply her mind on the evidence so noted by her during the inspection, which was against her and to make an effective appeal. Surely, for such purposes, he may have required reasonable time to prepare her case, which may include seeking legal advice. The procedure evolved by W.P.(C) No.7943/2016 Page 29 of 40 the Appellate Authority to allow inspection of the documents/records and hearing her could not be in conformity with the principles of natural justice and the law laid down by the Supreme Court in the case of Associated Cement Company Ltd. v. Workmen and another (1964) 3 SCR652 wherein the Supreme Court was considering an appeal arising out of an industrial dispute between the appellant and the respondent workman with regard to dismissal of five workmen employed by the appellant company. One of the issue was that before the enquiry was actually held on June 11, 1952, notice was not given to Malak Ram, one of the workmen telling him about the specific date of the enquiry. The Supreme Court held that failure to intimate to the workman concerned about the date of the enquiry may, by itself, not constitute an infirmity in the enquiry, but, on the other hand, it is necessary to bear in mind that it would be fair if the workman is told as to when the enquiry is going to be held so that he has an opportunity to prepare himself to make his defence at the said enquiry and to collect such evidence as he may wish to lead in support of her defence. The Supreme Court held, on the whole, it would not be right that the workman should be called on any day without previous intimation and the enquiry should begin straightaway. The Supreme Court held, such a course should ordinarily be avoided in holding domestic enquiries. In other words, the Supreme Court has held that an incumbent should be given sufficient opportunity/time to consider the evidence, which has come against him and to collect evidence in support of his defence. In the case in hand, no such time was given to the petitioner. That apart, if the material is being shown to the W.P.(C) No.7943/2016 Page 30 of 40 petitioner, on June 16, 2016, surely, some time should have been given to the petitioner to enable her to supplement her appeal already filed by her on May 02, 2016. This would be in conformity with the concept of fair play in action, which is the basis of natural justice. That apart, even in these proceedings, the respondent has not filed on record, the complete record of the HLEC. In fact, a stand has been taken in the written submissions that only certain documents relied upon by HLEC have been filed before this Court and the entire evidence, documents, notices and proceedings are maintained by the respondent in its official files. The same are available for any other scrutiny as and when the same are requisitioned before the Court. Even if some depositions are filed along with the written arguments in this case, the same are in Hindi. They were also filed after counsel for the petitioner in this writ petition, had advanced her arguments. Even otherwise, the HLEC report refers to deposition of some eye witnesses, which are in the deposition files. It is not clear, who these witnesses are, who are being referred to. All the evidence, documents, notices and proceedings being in the official files, there was no occasion for this court/counsel for the petitioner to look into the same for a proper appreciation/justification of the impugned orders.
38. Further, it may be stated here that in her appeal dated May 02, 2016, the petitioner has raised certain grounds, which have already been referred to above.
39. From the reading of the order dated August 22, 2016, it is seen that the Appellate Authority has not dealt with the said grounds. The W.P.(C) No.7943/2016 Page 31 of 40 Supreme Court in the case reported as (2013) 6 SCC530Chairman, Life Insurance Corporation of India and others v. A. Masilamani, in para 19 held as under:-
"“19. The word “consider”, is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order. (Vide: Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006) 11 SCC147 and Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr., AIR2008SC1771. Suffice to state, in view of the aforesaid judgment of the Supreme Court, it is expected that the Appellate Authority should have disposed off the appeal by a reasoned and speaking order. This I say so, there is nothing in the Rule, relating to appeal which says otherwise i.e it is not necessary for the Appellate Authority to pass a reasoned order.
40. Insofar as the judgments relied upon by Ms. Routray are concerned, in K.L. Tripathi (supra), the issue, which fell for consideration was with regard to a challenge to the departmental enquiry by an employee on the ground that he was not provided W.P.(C) No.7943/2016 Page 32 of 40 opportunity to cross examine. The Supreme Court held that in the absence of any lis as to the facts, allegations having been not disputed by the delinquent officer, no prejudice has been caused.
41. The issue, which has been considered by me in the aforementioned paras is only with regard to, whether sufficient opportunity was given to the petitioner to inspect the documents at the appellate stage and then submit an appropriate appeal after the inspection, so as to make the appellate proceedings meaningful and purposeful. Hence, the judgment would have no relevance.
42. Insofar as the judgment in the case of State of Gujarat v. Pagi Bhurabhai Rumalbhai (supra), is concerned, in the said case the Gujarat High Court held that the delinquent has no right to seek a personal hearing at the appellate stage. In the case in hand, the personal hearing having been agreed to and granted by the University, it cannot be contended by Ms. Routray that the personal hearing was not required.
43. In Ajeet Seeds Limited (supra), para 10 on which the reliance was placed, relates to a conclusion with regard to Section 114 of the Evidence Act, which enables the Court to presume that in common course of natural events, a communication made would have been delivered at the address of the addressee. A reference was made to Section 27 of the General Clauses Act, which gives rise to presumption that service of notice has been effected when it is sent to the correct address by registered post. The said judgment has no W.P.(C) No.7943/2016 Page 33 of 40 applicability on the limited issue being considered and decided by this Court.
44. In Hira Nath Mishra and others v. The Principal, Rajendra Medical College, Ranchi and another (1973) 1 SCC805 the Supreme Court was concerned with a case where the appellants, the male students of a Medical College lived in the College hostel. A confidential complaint was received by the Principal from thirty six girl students residing in the Girls Hostel of the College alleging that the appellants with some others at late night had entered into the compound of the Girls Hostel and walked without clothes on them. The Principal constituted an Enquiry Committee consisting three Members of the staff. The identification through photographs was carried out and the Girls by and large could identify the appellants from the photographs. The appellants were called before the Committee one after the other. They were explained the contents of the complaint. Due care was taken not to disclose the names of the Girls, who made the complaint. The appellants denied the charges and said they were in the Hostel at that time. The Supreme Court held as under:-
"(i) The complaint made to the Principal related to an extremely serious matter as it involved not merely internal discipline but the safety of the girl students living in the Hostel under the guardianship of the college authorities. These authorities were in loco parentis to all the students-male and female who were W.P.(C) No.7943/2016 Page 34 of 40 living in the Hostels and the responsibility towards the young girl students was greater because their guardians had entrusted them to their care by putting them in the Hostels attached to the college. The authorities could not possibly dismiss the matter as of small consequence because if they did, they would have encouraged the male student rowdies to increase their questionable activities which would, not only, have brought a bad name to the college but would have compelled the parents of the girl students to withdraw them from the Hostel and, perhaps, even stop their further education. The Principal was, therefore, under an obligation to make a suitable enquiry and punish the miscreants. (ii) The Police could not be called in because if an investigation was started the female students out of sheer fright and harm to their reputation would not have cooperated with the police. Nor was an enquiry, as before a regular tribunal, feasible because the girls would not have ventured to make their statements in the presence of the miscreants because if they did, they would have most certainly exposed themselves to retaliation and harassment thereafter. The very reasons for which the girls were not examined in the presence of the appellants, prevailed on the authorities W.P.(C) No.7943/2016 Page 35 of 40 not to give a copy of the report to them. It would have been unwise to do so. (iii) Therefore, the authorities had to devise a just and reasonable plan of enquiry which, on the one hand, would not expose the individual girls to harassment by the male students and, on the other, secure reasonable opportunity to the accused to state their case. The course followed by the Principal was a wise one. (iv) Under the circumstances of the case, the requirements of natural justice were fulfilled, because principles of natural justice are not inflexible and may differ in different circumstances.” From the above, it is noted that, keeping in view the nature of allegations against the male students; to protect the identity of the complainants, the girl students, the Supreme Court had upheld, the nature of enquiry conducted by the University as being in compliance with the principles of natural justice. The aforesaid judgment of the Supreme Court has no applicability in the facts of this case and also on the limited issue that is being decided by this Court.
45. Insofar as the judgment of the Supreme Court in the case of Suresh Koshy George (supra) is concerned, in para 7 on which reliance was placed by Ms. Routray, the Supreme Court was considering a submission that the Vice Chancellor had not made available to the appellant a copy of the report submitted by the Inquiry W.P.(C) No.7943/2016 Page 36 of 40 Officer before asking him to make a representation. The Supreme Court rejected the contention by holding that the enquiry was held after due notice to him and in his presence. He was allowed to cross examine the witnesses examined in the case and he was permitted to adduce evidence in rebuttal of the charge. The Supreme Court also held, no Rule was brought to its notice, which stipulated the supply of report. The Supreme Court also observed that it was not the case of the appellant that he had asked for the cop of the report, which was denied to her. The judgment relied upon by Ms.Routray is distinguishable, inasmuch as the petitioner did not participate in the proceedings/the proceedings were held in her absence. Further, the Appellate Authority itself has offered to allow inspection of the documents/record of HLEC. The petitioner had asked for the documents/record/material in her appeal dated May 02, 2016. The Appellate Authority having allowed the inspection, reasonable time should have been given to the petitioner to supplement the appeal already filed by her on May 02, 2016. The judgment has no applicability, at least on the limited issue that is being decided by this Court.
46. Insofar as the judgment of the Allahabad High Court in the case of Ram Chander Roy (supra) wherein reliance was placed on paras 24 and 25, relates to the power of the Vice Chancellor to impose any punishment in maintaining the discipline of the University. There is no dispute on the said proposition of law. Insofar as the plea that the right of cross examination was denied is concerned, the High Court W.P.(C) No.7943/2016 Page 37 of 40 held that it was not convinced that in a case where Head of an Educational Institution takes disciplinary proceedings, it is necessary that he must give an opportunity to the student to cross examine the witnesses, who may be examined by him in order to satisfy himself that an occasion has arisen for taking disciplinary action against him. In matter of discipline, the Head of Educational Institution does not act as a judicial or a quasi judicial Tribunal. The Disciplinary power vested in any Officer or the Head of an Institution is a power which is absolutely necessary for and ancillary to the exercise of administrative functions in that capacity. Suffice to state, 32(5) of the Statutes of the University lays down the procedure. In any case, as stated above, on a limited issue, which is being decided, this judgment would not have any applicability.
47. In State Bank of Patiala and Others v. S.K. Sharma (supra), Ms. Routray who relied upon para 35 to contend that no prejudice has resulted to the petitioner on account of non furnishing her the copy of the statements of witnesses as it cannot be said that she did not have a fair hearing is concerned, there is no dispute on the proposition, in view of the position of law noted above, but the limited time given by the Appellate Authority to the petitioner to inspect the documents/material/record and to give a hearing on the same day would not be in conformity with the principles of natural justice. Surely, the Authority empowered under the Statute is required to give a reasonable opportunity to make the very purpose of the power being exercised by such Authority meaningful. W.P.(C) No.7943/2016 Page 38 of 40 48. Insofar as State Bank of Punjab and others v. Bakhshish Singh (supra) is concerned, there is no dispute that the Court cannot sit as an Appellate Authority over and above the conclusion of the Disciplinary Authority that a particular act was a gravest act of misconduct warranting dismissal. As stated above, on the limited issue that is being decided by this Court, this judgment would have no relevance.
49. Insofar as Chief Commissioner of Income Tax (Administration), Bangalore v. V.K. Gururaj and others (supra) is concerned, the said judgment is on the proposition of deemed service, which in any case has no applicability for the reasons already stated.
50. Insofar as the judgment in the case of V. Ramana v. APSRTC and Ors (supra) is concerned, the same relates to the issue of judicial review with regard to punishment. The same has no applicability in view of limited issue that is being decided by this Court.
51. Insofar as the reliance placed by Ms. Routray on the judgment of M.V. Bijlani (supra) is concerned, in view of the limited issue that is being decided by this Court, this judgment would have no relevance.
52. In view of my above discussion, the writ petition is allowed to the extent that the Appellate Order dated August 22, 2016 is set aside and the matter is remanded back to the Appellate Authority with a direction to grant an opportunity of inspection to the petitioner, the record of the HLEC for continuous two days during office hours only W.P.(C) No.7943/2016 Page 39 of 40 by notifying the date and time to the petitioner for the same and upon such inspection, the petitioner shall have one week time to file a Supplementary Appeal, upon which the Appellate Authority shall give a hearing to the petitioner on a date and time fixed by the Appellate Authority, who thereafter shall, by considering the appeal(s) already filed by the petitioner and the Supplementary Appeal, if any, pass a reasoned order as expeditiously as possible preferably within six weeks thereafter. Till such time, the order dated April 25, 2016 shall not be given effect to. It is also made clear in view of the undertaking given by the petitioner in W.P.(C) No.4398/2016, the petitioner shall not indulge in any strike or dharna or agitation or coercive action in future in connection with the issue, till such time the proceedings between the parties attain finality. No costs. CM No.32968/2016 (for stay) Dismissed as infructuous. OCTOBER12 2017/ak V. KAMESWAR RAO, J W.P.(C) No.7943/2016 Page 40 of 40