ORDER
1. For the disciplinary action and punishment of dismissal removal or rustication of a student, whether the principles of natural justice should be observed or the fair play only will suffice, in case of the relationship of a pupil and the master of the education institution governed by the contract of admission and not by the statutory provisions? Whether such disciplinary authority is quasi judicial or only administrative authority? Whether the show cause notice containing the allegations against the pupil should be served before imposing penalty of rustication on the student? What should be the contents of such notice? Whether the order imposing the punishment should be speaking order? are some of the questions touching the students class and educational institutions, required to be considered in this petition under Art. 226, Constitution of India, challenging the order rusticating the petitioner from the Engineering College, for the period of three years and also dismissing him as the General Secretary of the Students' Council.
2. Petitioner, an engineering student, studying in third year Mechanical Engineering, is rusticated with immediate effect by the Principal, by order dated March 27, 1989 from Sardar Vallabhbhai Regional College of Engineering and Technology, Surat, for the period of three years and also dismissed as the General Secretary of the Students 'Council by the President, Students' Council, by order of the same date, for having been found involved in the incident of causing hurt, instigating the students to cause hurt to the Municipal Corporator, creating tension in the College and behaving rudely with some faculty members and not pacifying the students and controlling the situation as a leader of the students community and failing in his responsibility.
3. Petitioner was studying in the 3rd year of the Mechanical Engineering in Sardar Vallabhbhai Regional Engineering College of Technology, Surat, and was elected as General Secretary of the Students Council. On March 19, 1989 at about 9.30 p.m. some junior students of the first year Engineering College, mostly hailing from Rajasthan and Bihar, had gone out and were involved in the incident of teasing a couple. The Municipal Councilor of Umra Electoral Division of Surat Municipal Corporation objected to that and also caught hold of one Mahendra Prasad but his companions fled away from there. After going to the hostel, they informed the petitioner and other students. Prof. K. U. Joshi, professor of Electrical Engineering and Chief Warden was on stroll with his family and came nearby the gate of the campus where Harish Umrigar met him and complained that the students of the College, including Mahendra Prasad were involved in teasing a couple on the road. Out of those students about 5 fled away and Mahendra Prasad was caught by them. In the meantime, the students who had fled away from the place of incident informed other hostel inmates and the petitioner started collecting other students. Prof. B. J. Mehta met Prof. K. U. Joshi and both of them accompanied Harish Umrigar nearby the Central School and on inquiry Mahendra Prasad informed that other students happened to be Mansingh, Vishnu Prakash Sharma, Devilal Parmar and Sanjay Dani, all of whom were studying in the first year of Engineering. After that Prof. Joshi and Prof. Mehta told Harish Umrigar that the students will not behave in that manner in future and started returning to the campus. Mahendra Prasad was given lift on the motor cycle of Prof. Mehta and Prof. Joshi on the motor cycle of Harish Umrigar and they went to the quarters to leave them. They saw the mob of about 20 students proceeding from Hostel towards the gate and they inquired about Mahendra Prasad. Prof. Joshi pacified them and told them not to worry as Mahendra Prasad was on the scooter of Prof. Mehta and told them to return and accordingly they moved back towards the hostel. Prof. Joshi along with Harish Umrigar, went to his quarter and then Harish Umrigar started to return. Prof. Joshi thinking to go towards hostel, started on his scooter from his residence towards hostel. Prof Mehta was present nearby the place of incident and Prof. J.C.Vyas had also come there. While Harish Umrigar was returning and reached near administrative building, some of the students including the petitioners, who were armed with iron rods, lathis and chains, rushed towards Harish Umrigar, caught him and on being inquired by the petitioner as to who had caused injuries, Mahendra Prasad told them that Harish Umrigar happened to be the person who caught him. Petitioner told his companions to assault and cause hurt to Harish Umrigar and the petitioner and his companions Vishnu Prakash Sharma, Devilal Parmar, Mansing Kaen and Sanjay Dani attacked Harish Umrigar and caused him injuries. Prof. Mehta just covered the body of Harish Umrigar and tried to save him and during that he was also caused some injuries. After causing severe injuries to Harish Umrigar and tearing his shirt, the petitioner and his companions fled away from there. Prof. Joshi then went to the hostel No. 3 brought the petitioner to the place nearby the circle where Prof. Mehta and others were with injured Harish Umrigar. At that time also the petitioner provoked the crowd stating that the authorities had done nothing for the students and therefore, he had tackled the problem in his own way. Navin Umrigar, went there in search of Harish Umrigar and took Harishbhai to the Civil Hospital, where he was admitted as indoor patient. Navinbhai then lodged complaint at about 0.30 hours, on March 20, 1989 at Umra Police Station, Umra and the offence was registered. Hostel students started spreading rumours at night, but ultimately Prof. Joshi and other Professors succeeded in persuading them at about 1.30 a.m. to return to the hostel. Next day Police Sub-inspector Shukla went to Prof. Joshi and requested him to hand over the students and all the six students including the petitioner were informed. Five students remained present on March 21, 1989 and they were released on bail, but the petitioner did not remain present. On March 21, 1983, at night, petitioner went to the residence of Prof. Joshi and was advised to surrender. These facts are evident from the statements of Prof. K. U. Joshi, Prof. B. J. Mehta, Prof. J. U. Vyas, recorded by the police and the report of Prof. K. U. Joshi produced by the petitioner along with his Affidavit-in-rejoinder dated August 2, 1989. As the petitioner happened to be the main leader and instigated other students to cause injuries and caused injuries to Harish Umrigar, Inquiry Committee consisting of seven members, viz. (1) Prof. K. U. Joshi, Chief Hostel Warden (2) Dr. B. K. Katti (3) Prof. B. J. Melita, (4) Prof. R. N. Parikh, (5) Prof. H. D. Desai, (6) Prof. A. C. Gandhi and (7) Shri Y. F. Canporwala (Deputy Registrar), was constituted to probe into the incident which occurred on March 19, 1989 in which the Municipal Corporator was caused injuries and the committee was requested to submit report on or before March 25, 1989 to the college authorities for transmitting to the disciplinary committee which may recommend appropriate actions thereafter. On March 21, 1989 notice was issued to 7 students including the petitioner to remain present at 3. 10 p.m. before the College Disciplinary Committee on March 23, 1989 in the office of Prof. K. U. Joshi in Electrical Department. The intimation was given to other members of the committee with a request to remain present at the relevant time and place. At the initial stage the petitioner stated that he had not received any such notice but in the Affidavit-in-rejoinder, the petitioner admitted that he received notice dated March 21, 1989 directing him to remain present before the College Disciplinary committee of which Dr. B. Majmudar was the Chairman and accordingly he went to Dr. Majmudar in the Electrical Department who refused to record his statement. The Committee headed by Prof. Joshi then held the inquiry at 3. 10 p.m. on March 23, 1989 in the Conference Room of the College and submitted the Report on March 25, 1989. The Committee held the petitioner having been involved in the incident of causing hurt and instigating other students to cause hurt to Harish Umrigar in the Sardar Vallabhbhai Regional College of Engineering and Technology Campus, at night on March 19, 1989 and creating tension in the college, behaving rudely with 2 to 3 Faculty members and not pacifying the students and to control the situation as a leader of student community and thus failing in his responsibilities. The Committee also held that the petitioner absconded during the police investigation and failed to obey the instructions issued by the Hostel Warden in that connection and created awkward situation before the Police Officers. The Committee members then unanimously recommended that the petitioner be rusticated from the college for the involvement in the shameful incident and so far as the other 5 to 6 students were concerned, the charges against them should be referred to the College Disciplinary Committee to take further action in the matter. On receiving the report, Dr. P. R. Mehta issued notice on March 25, 1989 to the petitioner to remain present at 3. 10 p.m. on March 27, 1989 in the Conference room of the College, before the Committee of the College Wardens in connection with the incident that took place on March 19, 1989 night. It was also stated that in case of failure to remain present, the Committee will finalise the decision. That notice was affixed on the College Notice Board (main building), hostel Notice Board, Hostel No. 3 and was also sent to the Chief Hostel Warden. The Head Clerk (Hostels) went to the room No. BG-2 in Hostel No. 3, where the petitioner was residing, at 9.15 a.m., but the petitioner was not found present. The father of the petitioner was informed and he remained present before the Committee. The Disciplinary Committee consisting of all Heads of Departments, all Hostel Wardens, Members of the College Disciplinary Committee, Senate members representing the College in the South Gujarat University and Senior Professors, held on March 27, 1989 to consider the Report of the Inquiry Committee regarding the incident which took place on March 19, 1989 in which Municipal Corporator was caused hurt by some of the students who were instigated by the petitioner. The Committee decided that the petitioner be rusticated with immediate effect from the college for three years. So far as other students, who were also served notices, were concerned, the Committee decided that their cases should be entrusted to the Inquiry Committee for further investigation and the disciplinary action should be taken after the Report of the Inquiry Committee. The petitioner is accordingly rusticated for the period of three years from the college. The Principal, who is President of the Students' Council, by a separate order dated March 27, 1989 dismissed the petitioner as the General Secretary of the Students' Council and nominated Mr. Shethana Amar P. as the General Secretary of the Student Council for the remaining part of the academic year 1988-89.
4. The petitioner has challenged the orders rusticating him from College and dismissal as the General Secretary, mainly on the ground that the petitioner was not afforded opportunity of being heard and the order is passed behind his back and even the statement of the petitioner was not recorded by the Inquiry Committee or by any authority of the College and, therefore the action is violative of principles of natural justice and fair play and is arbitrary, unjust and mala fide. It is also contended that the criminal case was already filed against him and, therefore, the disciplinary action should not have been taken against the petitioner as that would prejudice the case of the petitioner and such an action is violative of Arts. 14, 19 and 21 of the Constitution of India. The Report by the Inquiry Committee was also not furnished to the petitioner and even after the final punishment order, no such report is given to the petitioner. According to the petitioner, there is no sufficient evidence to implicate the petitioner for any such act and the impugned order of penalty is based on no legal evidence and, therefore, the finding is perverse and the penalty order is null and void. One of the main grievances of the petitioner is that before imposing the penalty, no show cause notice was served nor any imputations of charges were given or served to the petitioner to which the petitioner could have effectively answered and consequently, no reasonable opportunity is given to the petitioner to meet with the alleged charges and, therefore, the impugned order deserves to be quashed. Grievance is also made that the penalty of rustication for three years is disproportionate and harsh and that the order suffers from bias. The penalty order is challenged as it cannot be considered to be a speaking order. The petitioner has tried to support his contention by his affidavits, the Affidavit-inrejoinder and producing certain documents referred to above.
5. The respondents have controverted the contentions and allegations by the Affidavitin-reply filed by Mr. M. J. Jani, Registrar, and Affidavit-in-Sur-Rejoinder and producing certain documents.
6. The main contention of the petitioner is that the inquiry was held in his absence and, therefore, the entire inquiry is vitiated as being in violation of principles of natural justice. It is evident that the notice was served to the petitioner to remain present on March 23, 1989 before the Committee for inquiry and the petitioner has received that notice. According to the petitioner, he went to Dr. Majmudar at the engineering department, but Dr. Majmudar refused to record his statement as he was not aware of constitution of any such committee. At the initial stage petitioner denied to have received any such notice but subsequently, in Affidavit-in-rejoinder he has admitted this fact. In the Notice dated March 21, 1989, which was issued by Prof. K. U. Joshi, Chief Hostel Warden, it was clearly stated that the petitioner and others had to remain present in the office of Prof. Joshi in the Electrical Department. The petitioner was, therefore, supposed to remain present before Prof. Joshi and not before Dr. Majmudar. It is clear that Dr. Majmudar was never the member of that Inquiry Committee and, therefore, merely by remaining present before Dr. Majmudar, the petitioner cannot find out excuse for not remaining present before the College Disciplinary Committee. It is true that the meeting was held by the College Disciplinary Committee in the Conference Hall and not in the office of Prof. Joshi in the Electrical Department, but that by itself is not sufficient to hold that the inquiry was held behind the back of the petitioner. It is evident that about 5 to 6 other students who were also served notices remained present. The petitioner if at all was inclined to remain present, could have conveniently remained present before the College Disciplinary Committee. The Inquiry which was held by the Committee headed by Prof. K. 13. Joshi, cannot be said to be in violation of the principles of natural justice or fair play.
7. The second notice dated March 25, 1989 to remain present at 3. 10 p.m. on March 27, 1989 before the Committee of the College Hostel Wardens, was issued by Principal Dr. P. R. Mehta, and was affixed on the College Notice Board (Main Building), Hostel Notice Board (Hostel No. 3) and copy was sent to the Chief Warden for information and necessary action. The Head Clerk (Hostels) attempted to serve the notice to the petitioner, but the petitioner was not available at his room. In that notice it was stated that the petitioner had to report to the Committee in connection with the incident that took place on March 19, 1989 and in case of failure the decision which the Committee would take shall be finalised. The notice was not in the form of the show cause notice and it did not contain that the Committee constituted for inquiry had submitted the report and the findings of the Committee were against the petitioner The petitioner was not called upon to show cause to the findings against the petitioner. Admittedly, the findings of the Inquiry Committee were also not sought to be served to the petitioner. The Notice was a simple notice for remaining present before the said Committee in connection with the incident that took place on March 19,1989. The members of the Committee of all the Heads of the Departments, all Hostel Wardens and other respectable members accepted the report of the Inquiry Committee and decided to rusticate the petitioner for the period of three years. The petitioner did not remain present before the Disciplinary Committee but according to the respondents, the father of the petitioner, who was informed, did remain present. According to the petitioner, he had left for Jaipur and had not gone to his home and was not knowing about such notice and, there fore, he could not remain present before the Disciplinary Committee. So far as the challenge to the decision of the Disciplinary Committee is concerned, it is required to be considered from various angles, viz. (1) whether sufficient notice was given to the petitioner, (2) whether show cause notice at least containing the substance of the report of the Inquiry Committee is required to be served and (3) whether the Inquiry Report should be furnished to the petitioner before the decision is taken by the Disciplinary Committee.
8. The Notice was affixed at the College Notice Board, Hostel Notice Board, Hostel No. 3 and father of the petitioner was also informed to remain present and he did remain present before the Disciplinary Committee. The petitioner knew about the preliminary inquiry held on March 21, 1989. He was aware of the proceedings, which were being taken against him. The petitioner has not led any evidence to establish that he had left for Jaipur and was not in the hostel or had not gone to his home. The petitioner is capable of telling a lie on oath. For first notice he stated at one stage that he had not received notice and subsequently stated that he had received notice. No reliance, therefore, can be placed on evidence of petitioner. It, therefore, cannot be accepted that the petitioner was not informed of the meeting of Disciplinary Committee to be held on March 27, 1989. It was not a statutory notice required to be served to the petitioner under the provisions of statute, but the notice was to be served only with a view to give opportunity to the petitioner to explain the allegations against him and to lead any evidence. Personal notice was tried to be served but could not be served on the petitioner as he was not available and, therefore, the notices were served by affixing on the College Notice Board and on the Hostel Notice Board where the petitioner was residing and also by intimating the father of the petitioner. Considering the facts of this case, it should, therefore, be held for the purpose of this domestic inquiry that the petitioner was served the notice. In similar circumstances, in Abhay Kumar v. K. Srinivasan, A I R 1981 Delhi 381, notice was held to be properly served.
9. The point requiring consideration is as to whether the sufficient show cause notice containing the charges and the imputations of allegations against the petitioner, or even the summary of the charges, is required to be served. As discussed above, notice served was only to the effect that the petitioner had to remain present on March 27, 1989 at 3.10 p.m. in the Conference Room of the College before the Committee of the College Hostel Wardens in connection with the incident that took place at night on March 19, 1989. By the notice the petitioner was not given any intimation that the inquiry committee had submitted the findings and the findings were against the petitioner. It was also not stated as to what were the charges or the imputations of allegations for which the petitioner had to remain present before the Disciplinary Committee. At least the notice in the form of show cause notice containing the summary of the findings should have been served to the petitioner so that the petitioner could have prepared himself to defend the allegations against him and remained present before the disciplinary committee. In absence of any such show cause notice it cannot be said that the principles of natural justice are observed and not violated. It is true that there are no statutory provisions like the provision under Art. 311, Constitution of India, before amendment, for the service of second notice for showing cause for not imposing particular penalty, but merely because there is no statutory provision either under the South Gujarat University Act or under any rules or regulations framed under the Act, that by itself is not sufficient to hold that the delinquent should not be even informed of the allegations against him or the findings of the inquiry held against him. The decision by the Disciplinary Committee, therefore, is vitiated for this reason.
10. From the rival contentions by learned Advocates for the parties, the ancillary point to be probed is, whether the disciplinary committee or the principal of the College, while exercising disciplinary powers, are the quasi-judicial authority or merely administrative authority and whether the principles of natural justice are required to be observed or fair play will suffice and, therefore, no show cause notice is required to be served. In submission of Mr. Shelat, learned Advocate for the respondents, the relation between the petitioner and the principal is that of pupil and master and it is only based on the contract of admission in the college and not statutory provisions and, therefore, the student who is admitted in the college is bound to observe particular discipline and in case of nonobservance, the principal or the college authorities have right to remove or rusticate from the college, even without inquiry. Mr. Shelat asserts that no domestic inquiry, as in the case of the Government servants or such other employees, is required to be held. It is submitted that no statutory rules or regulations are framed and, therefore, the statutory procedure is not required to be followed. This contention is sought to be controverted by asserting that under S. 4(23) of the South Gujarat University Act, 1965 the provision is t hat the University which is a corporate body has the power to co-ordinate, supervise, regulate and control the residence, conduct and discipline of the students of the University and to make arrangements for promoting their health and general welfare. Mr. Padiwal, learned Advocate for the petitioner, therefore, asserted that the University can impose the discipline and not the Principal. Mr. Padiwal, however, could not point out that the rules or regulations are framed under the Act for imposing the discipline or that the power to impose discipline or inflict the penalty is vested in particular authority by any rules or regulations, framed by the University under the South Gujarat University Act. The disciplinary rules are included in the prospectus issued by the College and according to the respondents, as stated in the Affidavit-in-rejoinder, by Mr. M. J. Jani, Registrar, every student is supposed to behave in a disciplinary manner. The Disciplinary Rules included in the prospectus provide that a student shall conform to a high standard of discipline and conduct himself within and outside the precincts of the College in a manner befitting the student of a College of national importance. It is also provided that breach of rules or regulations of the hostels, lack of decorum, indiscipline, ungentlemanly conduct or willful damage of college or hostel properties, etc. may entail dismissal from the college or debarment from the examination. It is specifically provided that a student whose conduct has not been up to the standard expected of a student of the College may be temporarily or permanently debarred from continuing studies in the college. R. 3 included in the prospectus, provides that for the maintenance of discipline amongst the students of the College, the principal may appoint each year a Standing Committee to examine the cases of any student or students involved in any breach of rules of conduct and recommend to the Principal a suitable disciplinary action or punishment. The Principal may give a hearing to the students involved and pass suitable orders. For the act of indiscipline or misconduct the Principal has, therefore powers to pass suitable orders but that should be only after giving opportunity to the student concerned, of being heard. The principal can act on the recommendations of the Standing Committee. In the instant case the special committee was constituted for the inquiry and the Disciplinary Committee was constituted of all the members of the disciplinary Committee and other heads of the departments, as discussed above. The Principal has accordingly taken decision on the recommendations of the Committee. It is therefore, apparent that even the contract of admission provides for the inquiry in the conduct of the student by the Committee, recommendations of the Committee and suggestions by the Committee for punishment or disciplinary action and ultimately the decision of the Principal for taking disciplinary action or punishment, after hearing the concerned student. The prescribed procedure by itself is sufficient to hold that the Standing Committee or the Disciplinary Committee or the Principal are the quasi Judicial authority and not merely administrative authority and are bound to follow the procedure and the principles of natural justice and mere observing the principles of fair play by itself is not sufficient to validate the disciplinary action.
11. In view of the rival contentions, it is necessary to consider as to under what circumstances the authority exercising such power should be considered as quasi judicial authority. As several judgments of the Supreme Court and other Courts are cited at the Bar to support the rival contentions, I should refer them, dealing pertinently with the subject.
12. H.W.R. Wade, in Administrative Law, Fourth Edition, at page 442, under the Caption 'The right to be heard reinstated' referring Ridge v. Baldwin, (1964) AC 40, in which the constable who was dismissed was held to have the right of being heard, observed -
'The leading speech of Lord Reid in Ridge v. Baldwin is of the greatest significance because of its extensive review of the authorities, which inevitably exposed the fallacies into which the decisions of the 1950s had lapsed. He attacked the problem at its root by demonstrating how the term 'judicial' had been misinterpreted as requiring some superadded characteristic over and above the characteristic that the power affected some person's right. The mere fact that the power affects rights is what makes it judicial and so - subject to the procedure required by natural justice. In other words a power which affects rights must be exercised judicially i.e. fairly and the fact that the power is administrative does not make it any the less 'judicial' for this purpose.'
Ultimately it is observed -
'The result is that the Courts now have two strings to their bow. An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore, involves a duty to act judicially, in accordance with the classic authorities and Ridge v. Baldwin or it may simply be held that it automatically involves a duty to act fairly and in accordance with natural justice.'
13. Mr. Shelat, learned Advocate for the respondents referring the observations under the caption 'Domestic Tribunals, Contractual Jurisdiction' at page 548 of above referred book that 'the students in Universities and colleges have contractual rights based on their contracts of membership, with implied terms which protect them from unfair expulsion' submitted that what is necessary is the fair deal and protection from unfair expulsion, but for that purpose it is not necessary to act judicially or exercise quasi-judicial power. The above observation is made relating to certiorari writ jurisdiction for such contractual relation. As discussed above, the very rules incorporated in the prospectus require, for the purpose of disciplinary action, to act as a quasi-judicial authority and not simply as an administrative authority. It can never be said that the disciplinary action of rustication does not affect the right or interest of the students. The right of a student to prosecute study and his future carrier are undoubtedly affected by removal or rustication and therefore, it involves duty to act judicially in accordance with principles of natural justice.
14. Mr. Shelat, learned Advocate for the respondents referred Glynn v. Keele University, (1971) 2 All ER 89, in which it is observed-
'The context of educational societies involves a special factor which is not present in other contexts, namely the relation of tutor and pupil i.e. the society is charged with the supervision and upbringing of the pupil under tuition, be the society a university or college or a school. Where this relationship exists it is quite plain that on the one hand in certain circumstances the body or individual acting on behalf of the society must be regarded, as acting in a quasi-judicial capacity-expulsion from the society is the obvious example. On the other hand, there exists a wide range of circumstances in which the body or individual is concerned to impose penalties by way of domestic discipline. In these circumstances it seems to me that the body or individual is not acting in a quasi-judicial capacity at all but in a magisterial capacity i.e. in the performance of the rights and duties vested in the society as to the upbringing and supervision of the members of the Society. No doubt there is a moral obligation to act fairly but this moral obligation does not, I think, lie within the purview of the Court in its control over quasi-judicial acts. Indeed, in the case of a school boy punishment the contrary could hardly be argued.'
15. Relying on these observations it is asserted that the Principal was acting in a magisterial capacity and not in a quasi-judicial capacity as he was not exercising the quasi-judicial powers. In that judgment it is categorically observed that the powers of Vice-Chancellor for suspending and excluding student from any part of University which do not amount to expulsion but in substance something like expulsion, are so fundamental to the position of a student in a university that the Vice-Chancellor must be considered as acting in a quasi-judicial capacity when he exercises them and it would not be right to treat those powers as merely a matter of internal discipline. It is also observed that once it is accepted that principal was acting in a quasijudicial capacity he was clearly bound to give an opportunity of being heard.
16. In Bangalore University, Bangalore v. B. P. Puttaraju, AIR 1981 Kant 202, In which the above paragraph in Glynn (1971) 2 All ER 89 (supra) is quoted, it is observed that 'if the action taken is so fundamental to the position of a student in the University then we must regard the power of the Vice-Chancellor as quasi-Judicial and he cannot make any order without opportunity to the student to be affected thereby. But on the other hand, if the Vice-Chancellor is enforcing internal discipline till the Syndicate takes appropriate action against such students, then he must be exercising only magisterial powers. We have no doubt that the action of the Vice-Chancellor with which we are concerned, falls into the latter category.' It was a case of the temporary suspension and not imposing the penalty and, therefore, held to be not a quasi judicial action requiring the observance of the principles of natural justice. The observations are, therefore, not much helpful to the respondents.
17. Abhay Kumar, Yadav v. K. Shrinivasan, AIR 1981 Delhi 381, was a case in which the student was prosecuted under Section 307, Penal Code, for stabbing a co-student and was debarred from entering the premises of the institution and attending the classes till the pendency of criminal case. It was considered to be a suspension order in the nature of a preventive action and not a final order. The order was held to be rational and judicious, the main object of which was to maintain peace in the campus and therefore, the delinquent student was not entitled to any prior notice or opportunity.
18. Relying on Hira Nath Mishra v. The Principal, Rajendra Medical College, Ranchi, AIR 1973 SC 1260, Mr. Shelat, learned Advocate for the respondents asserts that the principles of natural justice are not inflexible and may differ in different circumstances, and therefore, merely the show cause notice did not contain the details of the allegations would not violate the principles of natural justice. In that matter the students of the Medical College Hostel were involved in misbehavior with the hostel girls at night and the statements of about 10 girls were recorded in absence of the delinquent students. All the four students were directed to remain present before the inquiry committee and they attended, the contents of the complaint were explained to them; they were also given specific charges containing the facts and the allegations against them and were called upon to file the reply. The committee then recommended for deterrent punishment and the Principal accordingly expelled the students from the College. The contention was that the principles of natural justice had not been followed as the witnesses were not examined in their presence and were not afforded the opportunity to cross-examine the witnesses. The High Court observed that the principles of natural justice are not in flexible and in the facts and circumstances of that case the requirement of the natural justice had been satisfied. That observation of the High Court is, approved by the Supreme Court, referring to the judgment in Russell v. Duke of Norfolk, (1949) 1, All ER 109, approving the observations by Tucker L. J. that there are, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the cast, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth. Whatever standard is adopted one essential is that the person concerned should have a reasonable opportunity of presenting his case. Their Lordships quoted with approval the observations by Harman J. in Byrne v. Kinematograph Renters Society Ltd. (1958) 2 All ER 579 that '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.' The principles laid down are more favorable to the petitioner than to the respondents. In that case show cause notice was served and specific charges were given to the students. The basic requirement of the principles of natural justice is that the person accused of the misconduct should know the nature of accusation made and he should be given opportunity to state his case. It, there fore, clearly establishes that in such cases where the penalty of rustication is inflicted the show cause notice containing the chages or the nature of accusation should be given to the delinquent student. In Special Civil Application No. 31 of 1976, relying on the judgment in Hari Nath (AIR 1973 SC 1260) (supra), this court while dismissing the Special Civil Application at the admission stage, observed that there is no straightforward formula of the principles of natural justice. Similar view is expressed by this Court in Letters Patent Appeal No. 5 10 of 1985 decided on January 8, 1986. In that case also the show cause notice was served on the appellant of that case and thereafter the inquiry was held and the statement of the student was recorded by the Examination Committee.
19. In U.P. Singh v. Board of Governors, MACT, Bhopal, AIR 1982 Madh Pra 59, some of the Engineering College Hostel students of Maulana Azad College of Technology, Bhopal, assaulted some of the hostel students and caused serious injuries. Some petitioners of that matter were expelled after the committee inquired and recommended for expulsion, which was accepted by the Principal. Subsequently the Committee met and decided to give opportunity to show cause as to why such students should not be expelled, but they were not available in the college and the notice was pasted on the Notice Board and after the notice the Committee met again and resolved to expel five students from the College. The contention was that the impugned orders were bad as the principles of natural justice were not followed. It was contended on behalf of the college authorities that there were two rival groups and after the incident the petitioners were absconding and were not traceable and were not available in the campus and it was not possible to serve upon them the show cause notice before imposing the punishment. The committee had decided to serve the show cause notice to the five students proposed to be expelled but they could not be found and the notice was affixed on the Notice Board. Considering the situation which was tense and the fact that the petitioners had absconded, it was held that the expulsion order did not suffer from the denial of principles of natural Justice, observing that the application of the rules of natural justice depends upon the situation or circumstances existing at the time when their application is called for and 'what is to be seen is whether the action taken is fair and honest'. It is clear that the decision in regard to some of the students was upheld, in view of the special circumstances and in regard to other students as the show cause notice could not be served to them. Even for some students, against whom the inquiry was held subsequently, authorities thought it necessary to serve the show cause notice but it could not be served as the students were absconding. Such a situation did not arise in the present case. When the notice could be served by affixing on the hostel Board, where the petitioner was staying, the show cause notice containing the allegations against the petitioner could have been served. The observations in the judgment are, therefore, of no assistance to the respondents.
20. In Kishan Singh v. The Financial Commissioner, Haryana, AIR 1980 SC 1661, relied upon by Mr. Shelat, learned Advocate for the respondents, the Collector was reviewing the decision relating to the lands, under the Tenancy Act, after serving the notice in response of which the party did not remain present. In view of the said fact it was observed that since the order was passed after service of notice, it cannot be said by any stretch of imagination that there was a violation of principles of natural justice. The observation was made in light of the facts and circumstances of that case and as such is not relevant for the purpose of this petition.
21. Asserting that no second opportunity or second show cause notice is required to be served to such delinquent student, Mr. Shelat, learned Advocate for the respondents sought support from the judgment in Associated Cement Companies Ltd. v. T. C. Shrivastava, AIR 1984 SC 1227, in which it is observed that neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary, that of course, does not mean that a Standing Order may not provide for it but unless the standing order provides for it either expressly or by necessary implication, no inquiry which is otherwise fair and valid will be vitiated by not affording such second opportunity. The general principle of law as enunciated is required to be considered in relation to the specific provisions of the statute, rules or regulations under which the disciplinary action is initiated and the penalty is sought to be inflicted. The provisions of the disciplinary rules of the College are discussed above and it is clear that the Principal can appoint the standing committee for examining the cases of the students involved in any breach of rules of conduct, which can recommend a situable disciplinary action or punishment. It is also specifically provided that the Principal may give hearing to the students involved and pass suitable orders. Such hearing is, therefore, contemplated only after the recommendations of the standing committee. Show cause notice is, therefore, contemplated before imposing the penalty. When such hearing is contemplated, the opportunity of being heard should be effective and that can be only if the show cause notice contains the allegations or at least summary of the findings if no inquiry report is served to the delinquent student.
22. Kailash Chander v. State of U.P., AIR 1988 SC 1338 referred by Shri Shelat, was a matter in which without serving the second show cause notice penalty was inflicted. The provisions of Art. 311, Constitution of India, as amended by 42nd Amendment were being considered by the Bench consisting of three Judges, including the Chief Justice of India. Considering the provisions of Art. 311, after the explanation was deleted, it was observed that 'the question of service of the report arose on account of a right of a second show cause notice to the Government servant before the 42nd Amendment and since the present disciplinary proceeding was held later, the petitioner cannot legitimately demand a second opportunity. That being the position non-service of a copy of the report is immaterial.' The observations were made in view of the specific provisions of Art. 311, Constitution of India, and Their Lordships were not considering as to whether the principles of natural justice are violated for not serving the second show cause notice.
23. Prior to the judgment in Kailash Chander (AIR 1988 SC 1338) (supra), Division Bench of the Supreme Court, in Union of India v. E. Bashyan, AIR 1988 SC 1000 referred for consideration of same issue to the larger Bench. The point referred is 'whether failure to supply a copy of the Report of the Inquiry Officer to the delinquent before the Disciplinary Authority makes up his mind and records the finding of guilt as against him would constitute violation of Art. 311(2) of the Constitution of India and violation of principles of natural justice.' Referring to the amendment in Art. 311(2), Constitution of India, it is observed that 'by virtue of the amendment what has been dispensed with is merely the notice in the context of the measure of penalty proposed to be imposed. The opportunity required to be given to a delinquent which must be reasonable opportunity compatible with the principles of natural justice has not been dispensed with by virtue of the said amendment......... In the event of the failure to furnish the report of the Enquiry Officer the delinquent is deprived of crucial and critical material, which is taken into account by the real authority who holds him guilty namely, the Disciplinary Authority. He is the real authority because the Enquiry Officer does no more than act as a delegate and furnishes the relevant material including his own assessment regarding the guilt to assist the Disciplinary Authority who alone records the effective finding in the sense that the findings recorded by the Enquiry Officer standing by themselves are lacking in force and effectiveness. Non-supply of the report would, therefore, constitute violation of principles of natural justice and accordingly will be tantamount to denial of reasonable opportunity within the meaning of Art. 311(2) of the Constitution.' The judgment in Kailesh Chander (AIR 1988 SC 1338)(supra) is rendered considering the provisions of Art. 311(2), Constitution of India, and is not the decision on the point of violation of principles of natural justice in case the show cause notice is not served to the delinquent. It is apparent that both the judgments referred above are relating to the protection of the Government servants under Art. 311(2), Constitution of India, while in the instant matter no statutory provisions are required to be followed for holding the enquiry against the petitioner. It, however, cannot be gainsaid that the principles of natural justice are required to be followed by the respondents before inflicting the penalty of rustication.
24. None of the judgments referred by Mr. Shelat learned Advocate for the respondents, lays down the broad principle of law that mere service of notice without any show cause does not offend the principles of natural justice and that only fair play would suffice the requirement before the punishment of rustication is imposed.
25. Mr. Padiwal, learned Advocate for the petitioner asserting that non-service of the show cause notice offends the principles of natural justice referred to various authorities. In Deba Prasanna Misra v. Principal, S.C.B. Medical College, Cuttack, ILR (1971) Cut 433, after referring to various judgments the ultimate observation is that since the powers to be exercised by the Principal is clearly to ensure to the serious detriment of the future career of the students the decision to be taken by the disciplinary authorities must have to be taken while acting judicially, notwithstanding the fact that their relationship may emanate from contract and not from the provisions of a statute and notwithstanding the position that the relationship between the petitioners and the college authorities may be nothing other than one of master and pupil. For the contentions regarding principles of natural justice, the same observations as in the case of Hira Nath v. Rajendra Medical College, Ranchi, AIR 1973 SC 1260 (supra) are extracted and followed. In Surindra Pal Trikha v. Principal, Govt. Medical College, AIR 1965 J & K 23, the observations are that if any civil rights of a person are affected by the order of an administrative body such orders are quasi-judicial and not purely of administrative character. In Amiya Kumar Swain v. Principal, Regional Engineering College, Rourkela, AIR 1982 Orissa 43, the letter to produce the certificates and mark-lists was not considered to be sufficient opportunity to show cause against the proposed action to be taken against the petitioner and it was held that he was not given the opportunity to defend his case, and that violated the principles of natural justice. In Devinderpal Singh Sandhu v. K. L. Kapur, AIR 1966 Punjab 91, the student was rusticated on the ground of offence of drinking, without giving opportunity of being heard. It was observed that the student had a right to be acquainted with the nature of the allegations on the basis of which the order of rustication was sought to be made and also to an opportunity to be heard and to defend himself before the order entailing such serious consequences was passed against him. Denial of such opportunity was held to be in violation of rules of natural justice, observing that the order of rustication made without even informing the person concerned of the allegations on which it is based cannot be sustained. The observations clearly support the contention of the petitioner that at least show cause notice containing the allegations should have been given to the petitioner before rusticating him. Similar view is expressed in Sadhu Ram v. Principal, Rajindra College, Bhatinda, AIR 1954 Pepsu 151. In S.M. Sharma v. South Gujarat University, 1982 (1) 23 Guj LR 233, Division Bench of this Court, white observing that the University is an authority within the meaning of Art. 12 of the Constitution of India, has observed that the actions of the University must be right, just and fair and not arbitrary, fanciful or oppressive and that the executive action must meet the requirement of rules of natural justice.
26. From the above discussion, it should be held that the Principal and the Disciplinary Committee of Sardar Vallabhbhai Regional College of Engineering and Technology, Surat, while considering the disciplinary action of rustication against the student is a quasi-judicial authority and the principles of natural justice should be observed before imposing the penalty. Compliance of the principles of natural justice in such a case required the service of show cause notice containing the details of substance of the allegations and the findings of the Inquiry Committee informing the delinquent student of the allegations and the findings against the student so as to enable to meet the charges and afford sufficient opportunity to show cause. The opportunity of being heard should be afforded to the students before imposing the penalty. In the instant matter, even though both the notices are held to be served to the petitioner, the show cause notice even indicating the allegations or the charges and even the summary of the findings of the Inquiry Committee were not served to the petitioner and, therefore, the principles of natural justice are violated entailing the quashing of the punishment imposed on the petitioner.
27. The another contention of equal importance requiring consideration is that some members of the Inquiry Committee and the Disciplinary Committee were the witnesses to the incident and, therefore, the decision to impose the penalty is vitiated. I have discussed the evidence above and it is clear that Prof. J.U. Joshi and Prof. B.J. Mehta are the principal witnesses to the incident. Their statements were recorded by the police and they have also submitted the reports containing the facts and the allegations. One of the allegations is that the petitioner has misbehaved with certain authorities, probably meaning thereby, at the time of the incident the petitioner offended Prof. Joshi and Prof. Mehta. Admittedly, Prof. Joshi and Prof. Mehta were the members of the Inquiry Committee and were also the members of the Disciplinary Committee. It is true that they are Professors and had no personal grudge against the petitioner and they might have tried to hold the impartial inquiry, however, it would not create the confidence in petitioner that it was unbiased. The Inquiry Committee has submitted the report against the petitioner recording that the petitioner may be rusticated from the College for committing the act of misconduct. It is, therefore, apparent that Prof. Joshi and Prof. Mehta have categorically expressed the view that the punishment may be imposed on the petitioner. The Disciplinary Committee in which Prof. Joshi and Prof. Mehta were the members accepted the report of the Inquiry Committee and decided to rusticate the petitioner from the college for the period of three years. The Principal accordingly passed the order. Prof. Joshi and Prof. Mehta were participating in making decision to impose the penalty upon the petitioner, they are amongst the principal witnesses and acted as the Inquiry Authority and the Disciplinary Authority and have judged the conduct of the petitioner. It is true that many other highly qualified and respected academicians were the members of the Inquiry Committee and the Disciplinary Committee and no allegations are made or can be made against their honesty, integrity and impartiality. How ever, that by itself is not sufficient to save the situation as it cannot be said with certainty that Prof. Joshi and Prof. Mehta would not have expressed their views in the inquiry committee or the Disciplinary Committee while taking decision by the said Committees. The decision is, therefore, vitiated on the ground of bias. In Mohan Chandran v. Union of India (1986) 1 Serv LR 84: (1986 Lab IC 1245) (Madh Pra), the witness was entrusted the departmental inquiry and the report was accepted by the disciplinary authority and in that context it was held that it is a travesty of principles of natural justice as it offends fair play in action.
28. It is asserted that there is no legal evidence to hold that the petitioner has committed the misconduct charged. The contents of the report and the prima facie evidence is discussed above and, therefore, it is not necessary for me to repeat the same. Even from the statements of Prof. Joshi and Prof. Mehta and other witnesses, produced by the petitioner, it is clear that the petitioner instigated other students to assult and cause injuries to Harish Umrigar. As this contention is raised, I have expressed this view otherwise I would have restrained myself from expressing any view as the penalty order is being quashed and the competent authorities will have the opportunity to consider the evidence and take the decision.
29. It is also contended that the complaint is filed and the prosecution is pending and, therefore, inquiry should not be held. Merely because of that the order of penalty cannot be vitiated. Even in the judgment in Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd., AIR 1988 SC 2118, it is not held that the inquiry should not be held. On the contrary, observation is that 'there could be no legal bar for simultaneous proceedings being taken against the delinquent employee against whom disciplinary proceedings were initiated, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending the criminal trial. It is neither possible nor advisable to evolve a hard and fast straightjacket formula valid for all cases and of general application without regard to the particulars of the individual situation.'
30. It is stated that the order imposing the penalty is not a speaking order as reasons are not given and, therefore, it vitiates. It is true that the prima facie evidence of the witnesses is not discussed by the Disciplinary Committee or the Principal, while imposing the penalty of rustication upon the petitioner for three years. However, it is clear that the report of the Inquiry Committee is considered and the decision is based on that report and that is recorded in the report of Disciplinary Committee as well as that of the Principal. The penalty order is, therefore, not bad on that ground.
31. One of the contentions is that the penalty is severe and it should commensurate with the act of misconduct. A candid statement is made by the respondents, through Mr. Shelat, learned Advocate, that on the petitioner tendering apology and repenting for the misconduct, the respondents are prepared to reduce the period of rustication to six months only from the date of the order. It is clear from the statement and the Affidavit of Mr. Manoj Jani, Registrar that even if the petitioner would not have been rusticated, he was not eligible to appear in the ensuing examination as the petitioner attended only 13 periods from February 20, 1989 to March 19, 1989 out of 158 such periods. During February 20, 1989 to May 13, 1989, 285 periods and practicals were engaged, even if the period of rustication is considered as attendance, the total attendance would have been 140 periods and practicals i.e. 49% out of minimum requirement of 75% attendance. This aspect is riot relevant for the purpose of this petition and, therefore, no view is expressed.
32. The petitioner was elected as the General Secretary of the Students Council for the academic year 1988-89 and because of the incident he was dismissed as such and in his place Shethna Amar P. was nominated as General Secretary of the Students Council for the remaining part of the academic year 1988-89, by order dated March 27, 1989. That order is being challenged by the petitioner as according to the petitioner the Principal has no jurisdiction to dismiss the petitioner as the General Secretary and to nominate Shethna Amar P. in place of the petitioner for the remaining part of the academic year, under the constitution of the Students Union. I do not think it necessary to consider this point as it has only academic value, as the year 1988-89 for which the petitioner was elected as the General Secretary is over.
33. The petition is accordingly allowed to the aforesaid extent. The order imposing the punishment is quashed and set aside. As the punishment order is quashed only on the grounds as discussed above, the respondent No. 1 or the competent authority will be at liberty to start the inquiry afresh and take appropriate disciplinary action and pass order imposing punishment, if so desired, according to law. Rule is made absolute to that extent only with no order as to costs.
34. Order accordingly.