G.K. Misra, C.J.
1. The petitioner appeared in the Matriculation Examination at the Banki Bidapitha Centre, Banki, held by the Secretary, Board of Secondary Education (opposite party) on 16th to 20th of March, 1971. On 17-5-1971 the opposite party addressed the letter (Annexure 1) to the petitioner. For appreciation of the points in issue the entire letter is extracted hereunder:--
'BOARD OF SECONDARY EDUCATION,
ORISSA, CUTTACK-1
No. Exam. (C)-1822/Dt. 17-5-71
H.S./71.
From
Shri P.C. Roy, M.A. (Com)
Secretary, Board of Secondary
Education, Orissa, Cuttack-1
To
Smt. Pramila Dei, Roll No. M. 7619
Daughter of Antaryami Rout,
VIII./P. O. Banki District -- Cuttack.
It has been reported by the Centre Superintendent of B.K. Bidyapitha, Banki Centre, that you have adopted unfair means at the Annual High School Certificate Examination, 1971 in respect of Sanskrit -- I paper on 17-3-1971. In this connection, I am directed to say that the following charges have been made against you.
(1) While the Annual High School Certificate Examination, 1971 was in progress at the above Centre, you were found in possession of a small piece of manuscript paper which you brought into the Examination Hall with evident intention of copying from it/them. You were warned before the commencement of the Examination not to bring any paper other than your Admit Card into the Examination Hall.
(2) You were found copying from it/them.
(3) You have never followed the instructions printed on the back side of your Admit Card in the Examination at all.
(4) x x x x x(5) x x x x x(6) You refused to give a written statement and your Admit Card to the Centre Superintendent when you were asked to do so.
In case you want a personal hearing in the matter, you are required to inform about it along with your explanation in writing so that the date and time of hearing will be communicated to you.
If you have anything to say, you are required to do so before 25-5-1971 positively as to why disciplinary action should not be taken against you.
If no reply is received from you by the above date in the office of the undersigned, it will be taken for granted that you have nothing to say in defence and the matter will be disposed of and orders passed ex parte.
Sd.
14-5-71
Secretary.'
On 23-5-1971 the petitioner sent the reply (Annexure 2). The letter is extracted as follows:
'To
The secretary.
Board of Secondary Education,
Orissa, Cuttack.
Sub: Explanation called for in connection with annual H. S. C. Examination held in the month of March, 1971.
Ref: Your office letter No. Exam (C)-1822/H. S./71
dated 17-5-71.
Sir,
In inviting a reference to your letter on the subject cited above I am to report that I have never adopted unfair means at the Annual High School Certificate Examination of 1971 in respect of Sanskrit paper -- I held on 17-3-1971, in the B.K. Bidyapitha Centre, Banki.
That I have never brought a single piece of paper other than my Admit Card into the Examination Hall. So the question of copying out from the manuscript does not arise at all.
That I am astonished how the Centre Superintendent has reported against me that I am involved in malpractice. I think, he has reported wrongly against me. In this connection neither he has asked me to give statement nor my admit card. So the charges made by the Centre Superintendent are baseless, mala fide and motivated.
That in usual course, I have appeared all the papers till the date of examination is over i.e. 20-3-1971 without any interruption.
Hence in view of the facts stated above the unauthenticated report submitted by the Centre Superintendent may be inadmitted.
Yours faithfully,
Sd. Pramila Dei
Roll No. M-7610 23-5-1971 At Sisua
(Balli Sahi) P. O. Banki,
District-Cuttack.'
As the petitioner did not state in Annexure 2 whether she wanted to have a personal hearing as desired in Annexure 1, the opposite party cancelled the results of the petitioner and debarred her from appearing at any examination prior to the supplementary H.S.C. Examination. 1972 by an order (Annexure 3) dated 21-7-1971 which was communicated to her. Annexure 3 is extracted thus:
BOARD OF SECONDARY EDUCATION, ORISSA, CUTTACKNOTIFICATION No. INo. Exam. (C) - 2365/ Dated 21-7-71In accordance with Regulation 24 (a) & (c) of Chapter X of the Board's Regulations the following candidates who adopted unfair means at the Annual High School Certificate Examination, 1971 are penalised as noted against them :-
Serial No.Roll No.Name & address of the candidatesName of institutionPenalty imposed
12345
XXXXXXXXXX130M-7619Pramila Dei D/o. Antaryami Rout, At/P. O. Sisua, P. O. Banki, Dist. CuttackGovt. Girls' High School, BankiResults cancelled and debarred from appearing at any examination prior to the Supplementary, H. S. C. Examination, 1972.XXXXXXXXXX Sd/- P. C. Roy Secretary.
The petitioner's case is that when she denied the charge of malpractice against her there should have been a regular inquiry in which oral and documentary evidence should have been taken and she should have been allowed to defend her case.
In the counter affidavit filed by the opposite party the stand is that as the petitioner did not want a personal hearing the case was disposed of on the basis of documentary evidence available with the opposite party; after taking all documents into account the Disciplinary Sub-Committee recommended on 11-6-1971 that the result of the petitioner for the Annual High School Certificate Examination of 1971 be cancelled and she be further debarred from appearing at any examination prior to the supplementary High School Certificate Examination. 1972; the recommendation of the Disciplinary Sub-Committee was approved by the Examination Committee at its meeting held on 17-6-1971 in pursuance of which the notification (Annexure 3) was issued; and that there was no violation of the principles of natural justice.
2. The only contention advanced by Mr. Lingaraj Rath on behalf of the petitioner is that there was no inquiry made by the opposite party in presence of the petitioner when she denied the allegation of malpractice. Thus, the principles of natural justice were violated and the ultimate order (Annexure 3) is liable to be quashed.
3. In course of argument before the Division Bench it appeared that there are several Bench decisions of this Court taking somewhat inconsistent views. The case was accordingly referred to a larger Bench.
4. Before the Full Bench Messrs. L. Rath, G. Rath and R.K. Mohapatra, all the learned Advocates appearing in the case, stated that ILR (1971) Cut 610, (Sanjaya Rath v. Vice-Chancellor, Utkal University) more or less represents the correct law and all other Bench decisions have stated the law either incorrectly or too widely. We propose to examine the entire question afresh formulate the correct legal principles and thereafter to examine the various Bench decisions of this Court to see if they have been correctly decided.
5. The following questions needexamination:
(i) Is the proceeding taken up by a University or any other educational institution to impose penalty for malpractice resorted to by an examinee a quasi-judicial proceeding?
(ii) If so, is the principle of natural justice to be followed in making such enquiry?
(iii) What is the extent and content of the adequate opportunity to be given to the examinee at such enquiry?
6. 1911 AC 179, (Board of Education v. Rice), a decision of the House of Lords, is the leading authority on the point. Lord Chancellor, Lord Loreburn made the following observations at page 182 of the report:
'Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any wav they think best always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statute prejudicial to their view'.
This decision was followed by the House of Lords in 1915 AC 120. (Local Government Board v. Arlidge). At page 138 of the report Lord Shaw in inimitable language recorded the following classical passage:
'The words 'natural justice' occur in arguments and sometimes in judicial pronouncements in such cases. My Lords, when a central administrative board deals with an appeal from a local authority it must do its best to act justly and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means. In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find special favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading. In so far as the term 'natural justice' means that a result or process should be just, it is a harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous'.
In (1949) 1 All ER 109 (CA), (Russell v. Duke of Norfolk) at page 118 Tucker, L.J. observed thus:
'The requirements of natural justice roust depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with end so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever stand is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case'.
In (19581 2 All ER 579, (Byrne v. Kinematograph Renters Society, Ltd.) Harman, J. sitting in Chancery Division made the following observation at page 599:
'What then, are the requirements of natural justice in a case of this kind? First. I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the Tribunal should act in good faith, I do not think that there really is anything more'.
In (1960) 1 All ER 631. University of Ceylon v. Fernando the Judicial Committee of the Privy Council expressed their conclusion at page 641 thus:
'Their Lordships are, therefore, satisfied that the interviews, so far as they went, were fairly conducted and gave the plaintiff an adequate opportunity of stating his case. But it remains to consider whether, in the course they took, the interviews must be held to have fallen short of the requirements of natural justice on the ground that the plaintiff was given no opportunity of questioning Miss Balasingham. She was the one essential witness against the plaintiff and the charge in the end resolved itself into a matter of her word against his. In their Lordships' view, this might have been a formidable objection if the plaintiff had asked to be allowed to question Miss Balasingham and his request had been refused. But he never made any such request, although he had ample time to consider his position in the period of ten days or so between the two interviews. There is no ground for supposing that if the plaintiff had made such a request it would not have been granted'.
The aforesaid English decisions have been followed and approved as laying down good law in AIR 1962 SC 1110, (Board of High School and Intermediate Education, U.P., Allahabad v. Ghanshyam Das Gupta); AIR 1963 SC 375, (State of Mysore v. Shivabasappa Shivappa Makapur); and AIR 1969 SC 198, (Suresh Koshy George v. University of Kerala). The same view has been taken in AIR 1966 SC 875. (Board of High School and Intermediate Education U. P., Allahabad v. Bagleswar Prasad) without reference to any of these English decisions.
7. The following principles can be culled from the aforesaid English and Supreme Court decisions.
(i) The proceeding against an examinee on a charge of malpractice is a quasi-judicial proceeding. It affects his future and if any adverse view is taken by the disciplinary authority it might blast his career. Though the proceeding is administrative it is quasi-judicial in nature inasmuch as the career of the examinee is in issue.
(ii) Where there are statutory or codified rules the quasi-judicial proceeding will be enquired into in conformity with those rules.
(iii) Where there are no such rulesthe principles of natural justice will befollowed in making the enquiry keepingin view the fact that it involves thedetermination of a vital question integrally connected with the rights of theexaminee.
(iv) In making such enquiry the authority might have to ascertain both facts and law.
(v) In doing so it must act in good faith.
(vi) The authority must fairly listen to both sides.
8. Thus far there is no controversy. To implement these principles the examinee will be informed about the accusations made against him together with the statement of the allegations on which they were based. He should also get a reasonable opportunity of stating his own case by way of explanation to the charges.
9. The next question for consideration is whether the enquiring authority has any further duty in the matter of enquiry after charges are supplied, explanation is obtained and it listens to the parties in good faith. In other words, is it bound to follow any other requirements besides the aforesaid three elements? Clearly the enquiry is not in the nature of oath unless there is a codified rule to that effect. It need not examine any witness. It can obtain information in any way it thinks best; but if the information is so obtained the examinee must be given fair opportunity of correcting or contradicting any relevant statement prejudicial to his views. It follows as a necessary corollary that if the examinee wants any material to be produced or to cross-examine any witness, then the authority must make those materials or witness available. The authority has, however, no duty to suo motu examine oral evidence or give opportunity for cross-examination. If the delinquent as a part of his defence demands that witnesses reporting against him are to be cross-examined by him refusal thereof would amount to denial of reasonable opportunity.
It is also to be further remembered that in exercise of the writ jurisdiction under Articles 226 and 227 of the Constitution over the decision of the educational authority the High Court does not function as a court of appeal. It cannot look into the question of sufficiency or propriety pf the evidence. It cannot interfere with the finding of that authority unless the same is based on no evidence or is based on evidence on which a reasonable person cannot hold the delinquent guilty.
10. Keeping the aforesaid principles in view we would proceed to examine the various Bench decisions of this Court in chronological order.
11. 1967 Cut LT 1136. (Gufran Ali Khan v. B. Misra) is a judgment of Barman, C.J. and A. Misra, J. In that case the result of the first examination of 1966 had been cancelled and the examinee had been debarred from appearing at the second examination of that year. The contention on the basis of which the examinee's case was accepted was that the charges were vague and did not contain necessary particulars and even though certain particulars of accusation were asked from the authorities the same were not supplied to the delinquent. It appears from paragraph 11 of the judgment that in the presence of the delinquent an enquiry was made by the Centre Superintendent and the delinquent confessed before him that he had committed the acts alleged. As the decision rested on the non-supply of relevant materials though called for by the delinquent on the basis of which adverse views were taken it must be held to have been correctly decided.
12. The next case is a judgment of Barman. C.J. and S.K. Ray, J. in 1968-34 Cut LT 198, (Dilip Kumar Ganguli v. P.V. Raman Rao). The result of the three examinees had been cancelled as their answers to certain questions were held to be tallying not only among themselves but with the answer papers of some other examinees. The writ application was allowed on the ground that the principle of natural justice was not followed inasmuch as the answer papers of other examinees with whose answers the answers of these three examinees tallied were not brought to their notice. Their Lordships compared the three answer papers and came to the conclusion that they did not tally and, therefore, the conclusion of the discplinary authority was based on no evidence. The ultimate conclusion of the judgment can be supported on the second ground that it was based on no evidence. There are, however, certain observations in the judgment regarding the legal position which seem to have been too widely stated. In para. 11 their Lordships stated thus:
'It is well settled that it is the bounden duty of all quasi-judicial tribunals to place all matters which swayed their judgment for the explanation of the delinquents before they can be penalised'.
On the analysis indicated by us this observation is too widely stated. The prosecutor is not bound to place all materials in the enquiry. If the delinquent does not call for any such material he cannot subsequently complain that such material could not have been used against him.
Similarly there is an observation in paragraph 13 which runs thus:
'The omission in the charge to specify the other candidates from whom these petitioners are said to have copied or the proved facts from which inference of copying has been drawn, has caused such vagueness in the charge that the petitioners have suffered from serious prejudice thereby as they have been driven to a roving defence visualising all manner and possibilities of copying and to present their defence against every such possibility'.
As has already been indicated, charges of accusations along with the statement of particulars on which they are based are to be furnished to the delinquent. If the delinquent is of opinion that before furnishing explanation he is to look into some materials he must ask for the same. If he does not complain of the vagueness of the charge before submission of explanation, his subsequent plea that the charge was vague is not available when the accusations are said to have been established.
On the test laid down by Lord Shaw to the effect 'and the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading' the aforesaid observation of the Bench has not been precisely stated.
13. 34 Cut LT 1201 = (AIR 1969 Orissa 89). (Ramballay Bhramarbar Ray v. Utkal University) is a judgment of A. Misra and Patra. JJ. This case was correctly decided on its own facts. The delinquent was not furnished with materials which were relied upon in support of the charges though he asked for the same.14. AIR 1969 Orissa 206. (Rabindra Kumar Sahu v. Utkal University) is a decision of Barman, C.J. and Patra, J. This case was correctly decided on its own facts though the law should have been more precisely stated. The only point worth noticing in this case is the observation of their Lordships that the denial of the petitioner's prayer to summon the Invigilator to cross-examine him is not denial of reasonable opportunity and does not offend the principles of natural justice. In its bald form this observation is directly contrary to Fernando's case already referred to. In this particular case, however, the refusal to allow cross-examination did not affect the merits of the decision as the petitioner had confessed the fact of his resorting to malpractice before the Centre Superintendent.
15. AIR 1970 Orissa 63. (Sadananda Patnaik v. Vice-Chancellor, Berhampur University) is a judgment of R.N. Misra, J. and myself. Though the ultimate conclusion taken in the decision is unassailable, still certain observations made in the judgment have been too widely stated. The relevant observation is in paragraph 6 which runs thus:
'It was proper for University Authorities or the Committee to give an opportunity to the petitioner to appear before them at the enquiry. If he had been given that opportunity, it is quite possible that the petitioner might have impressed the members of the Committee about the justness of his defence. For instance, if the Invigilator had been examined by the Committee in the presence of the petitioner, the petitioner might have been in a position to put certain questions to the Invigilator and ultimately be successful in bringing on record to justify his allegations against the Invigilator'.
As has already been analysed, if the delinquent desired to cross-examine the Invigilator it was his duty to ask, for the same. It was no part of the principle of natural justice that the prosecutor would examine oral evidence.
16. AIR 1971 Orissa 212. (Ghanashyam Misra v. Orissa Association of Sanskrit Learning and Culture) is a judgment of S.K. Ray. J. and myself. In paragraph 5 of the judgment the following observation was made:
'There can hardly be any controversy that the principle of natural justice would vary according to the facts and circumstances of each case. One thing is, however, certain and that is that the charge must be framed indicating the allegations against the delinquent, the materials on which the allegations are based must be furnished, the delinquent must be given an opportunity to show cause against the charge documents and oral evidence in support of the charge must be examined in presence of the delinquent who should also be given an opportunity to contest the same by cross-examination. The delinquent would be entitled to give evidence in support of his defence and then the entire matter should be disposed of after giving him a personal hearing'.
This passage does not represent the law correctly. It has placed an enquiry by an educational institution on the same footing as an enquiry under Art. 311 (2) of the Constitution. The ultimate conclusion in that case can be supported on the ground that despite the request on the part of the delinquent to supply him certain documents and give him a personal hearing he was not afforded a reasonable opportunity on those counts. Similarly, the observation in paragraph 6 to the effect 'The petitioner was not even asked to cross-examine Shri Braja Padhi who admitted having introduced some papers in the answer books and substituting some other papers' is also contrary to the law laid down in Fernando's case. We have no doubt that this case does not lay down the law correctly.
17. As has already been stated, it is conceded by all the learned Advocates that ILR (1971) Cut 610, a judgment of A. Misra. J. and myself, more or less represents the correct law. In paragraph 8 of that judgment we summed up our conclusions. All the learned Advocates suggest that paragraphs 8 (b) (i) and 8 (d) should be worded as follows:
8 (b) (i): that the person accused would be informed about the accusations made against him together with the statement of the allegations on which they were based.
8 (d): If, however, the delinquent as a part of defence demands that the witnesses reporting against him are to be cross-examined by him, refusal thereof would amount to denial of reasonable opportunity.
In consonance with the analysis we have already made, we accept the suggestion of the learned Advocates. In our view ILR (1971) Cut 610 represents the correct law subject to the modification as indicated above. After this modification our conclusions which represent the correct law would stand thus:
8 (a) Principle of natural justice is not an embodied rule. Its requirements would vary according to the facts and circumstances of each case.
(b) The minimum requirements of principle of natural justice which would be followed in every case are
(i) that the person accused would be informed about the accusations made against him together with the statement of the allegations on which they were based;
(ii) he should get a reasonable opportunity of stating his own case by way of explanation to the charges;
(iii) the Tribunal which would hold the enquiry would act in good faith; and
(iv) while hearing the matter the Tribunal would give full opportunity to the delinquent to make his comments and criticisms upon the materials used against him.
(c) Unless statutorily or otherwise prescribed by specific rules, there is no obligation on the prosecutor to examine in the proceeding oral evidence or to suo motu give opportunity for cross-examination.
(d) If, however, the delinquent as a part of defence demands that the witnesses reporting against him are to be cross-examined by him, refusal thereof would amount to denial of reasonable opportunity.
18. The last case is an unreported decision in O.J.C. No. 130 of 1968 (Orissa), (Rabindra Kumar Das v. Utkal University) delivered by S.K. Ray and Patra, JJ. The defence in that case was a total denial. It was conceded that no enquiry was at all held. The conclusion in that case was correct on its own facts and circumstances; but therein also the law was not very precisely stated. As that decision is based on concession it is not necessary to refer to it at length.
19. In the present case when the charge was framed the petitioner was asked whether she wanted any personal hearing in the matter. It was also intimated to her that if no reply was received from her by the date fixed, it would be taken that she had no defence to give and the matter would be disposed of ex parte. After receipt of her explanation all relevant documents were taken into account by the Disciplinary Sub-Committee and on its recommendation the petitioner's result was cancelled by the Examination Committee. It is contended by Mr. L. Rath that though the petitioner was asked regarding personal hearing she was not told of any enquiry to be held by the Disciplinary Sub-Committee or the Examination Committee. A personal hearing is a part of every enquiry though the converse is not true. In this case after the explanation was obtained it was open to the disciplinary authority to go through the documents and come to its decision. If the petitioner would have availed of the opportunity of personal hearing she could have made comments on the proposed action and the materials that were used against her. After having failed to respond she cannot make a grievance that she was not fairly listened to. Mr. L. Rath further contends that the petitioner had no notice of the report of the Disciplinary Sub-Committee. She would have known of the report provided she would have availed of the opportunity of personal hearing.
20. Thus in the quasi-judicial enquiry held against the petitioner in respect of the malpractice committed by her every reasonable opportunity was given to her for defending herself. The writ application has no merit and is accordingly dismissed; but in the circumstances without costs.
R.N. Misra, J.
21. I agree.
B.K. Ray, J.
22. I agree.