Judgment:
(Prayer: This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 29.3.2011 vide Annexure-P, as being arbitrary and illegal with a further direction directing the respondents to grant all consequential benefits, etc.)
1. The petitioner has called into question the first respondent’s order, dated 29.3.2011 (Annexure-P) annulling the Ph.D, degree awarded to the petitioner, on the basis of the report of the Inquiry Commission as his thesis contained plagiarized passages.
2. Sri Subramanya Jois, the learned Senior Counsel for the petitioner submits that the impugned Government Order is without jurisdiction and without the authority of law. He submits that neither the Karnataka Universities Act, 2000 (‘the said Act’ for short) nor the Bangalore University’s Regulations provide for the annulment of Ph. D. degree by the Government. He submits that as per Section 70 of the said Act, it is only the Syndicate which has the power, based on the recommendations of the Academic Council to withdraw the Ph.D. degree.
3. The learned Senior Counsel complains of the violation of the principles of natural justice also. He submits that though the impugned order visits the petitioner with civil consequences, he is not put on notice, much less being heard in the matter, before passing the impugned order.
4. The learned Senior Counsel brought to my notice the Apex Court’s judgment in the case of S.L.KAPOOR v. JAGMOHAN AND OTHERS reported in AIR 1981 SC 136 for raising the contention that even when the facts are admitted, the observance of the principles of natural justice cannot be dispensed with. The relevant paragraph read out by him are extracted hereinbelow:
“……….’Well, even if the case had been properly conducted, the result would have been the same.’ That is mixing up doing justice with seeing that justice is done (per Lord Widgery C.J. at P. 1375).
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference of natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.”
5. He has also relied on the Apex Court’s judgment in the case of A.K.KRAIPAK AND OTHERS v. UNION OF INDIA AND OTHERS reported in AIR 1970 SC 150 for contending that the administrative decision-making, if it involves civil consequences, must be made consistently with the rules of natural justice.
6. The learned Senior Counsel submits that the impugned order also suffers from the vice of non-consideration of the relevant material, because none of the points raised by the petitioner in his representation (Annexure-K) submitted to the Government for rejecting the Irniraya Commission’s report are referred to in the impugned order, much less considered.
7. He takes serious exception to the Government Order which states that the High Court has directed the annulment of the petitioner’s Ph.D. degree. He read out the relevant paragraphs of the order, dated 7.3.2011 passed by the Division Bench of this Court in W.P.No.6091/2009 (PIL) and submits that the said writ petition came to be disposed of merely recording the submissions made on behalf of the State Government and on behalf of the Bangalore University. He submits that the impugned order shows that the Government has proceeded on an erroneous assumption that the High Court indeed directed the enforcement of His Excellency, the Governor’s order.
8. Sri M. Keshava Reddy, the learned counsel appearing for the second and third respondent Bangalore University submits that the Bangalore University’s Regulations of Ph.D. Courses are silent on how the Ph.D. degree is to be withdrawn or annulled. However, once the Chancellor directs the State Government to take action for the annulment of Ph.D. degree in respect of plagiarized thesis under Section 8(4) of the said Act, the State Government is bound to annul it in exercise of the power conferred by Section 10 of the said Act. The provisions contained in Section 10 are extracted hereinbelow:
“10. Power to annul the orders of the University.- (1) The State Government may by order published in the Official Gazette annul any order, notification, resolution or any proceedings of the University which in its opinion is not in conformity with the provisions of this Act, or the Statutes, Regulations or Ordinances or is otherwise inconsistent with the policy of the State Government.
Provided that before making any such order, the State Government shall afford an opportunity to the University.
(2) Every order passed under sub-section (1) shall as soon as may be after it is passed be laid before both the Houses of State Legislature.”
9. He submits that the term ‘resolution’ used in Section 10 of the said Act obviously includes the approval of the recommendations of the Chairman by the Vice-Chancellor/Syndicate.
10. Sri Keshava Reddy submits that the Ph.D. degree is awarded only on the passing of the resolution by the University’s Syndicate in the matter. To support this contention, he read out the provisions contained in Regulation No.10.2 of the Bangalore University’s Regulations of Ph.D. course.
“10.2. The Chairman shall forward the consolidated and the individual reports to the Registrar (Evaluation), Bangalore University, Based on these reports the University shall award the Ph.D. degree after the recommendations are approved by the Vice-Chancellor/ Syndicate.”
11. He also read out Section 8(4) of the said Act. They are as follows;
“8. Discipline, Inspection and Control.-
(4) Soon after receipt of the report, the Chancellor shall record his findings thereon and send the same to the State Government for taking further action, as may be necessary or as directed by him.”
12. Sri Keshava Reddy submits that once the Ph.D. degree is annulled by the Government in exercise of the power conferred by Section 10 of the said Act, all other requirements would become empty formalities. He submits that the petitioner is not justified in re-agitating the matter having lost his case before the Division Bench in W.P.No.6091/2009 (PIL).
13. He submits that the petitioner has not challenged K.V.Irniraya’s Commission’s report till now. He submits that the petitioner cannot feign ignorance of the said report, as he has already given the representation, dated 28.7.2008 (Annexure-K) to the Government not to accept the said Committee’s report. He further submits that the inquiry report is Annexure-A in W.P.No.6091/2009 (PIL), to which the petitioner was a party. Therefore by no stretch of imagination, the petitioner can have any legitimate grievance over the non-supply of the said report.
14. Sri R.Omkumar, the learned Additional Government Advocate appearing for the respondent No.1 submits that the petitioner was indeed given an opportunity to participate in the inquiry proceedings, as is evident from the Inquiry Commission’s report (Annexure-J). He read out the following paragraphs in support of his contention that the inquiry conducted is in keeping with the principles of natural justice.
“On the date of personal hearing, both the research student and his guide remained absent despite notice. Instead, an advocate sought permission to appear on their behalf……………
When the proceedings commenced on 14-6-2007, Shri M. Venkataramanappa appeared and made his oral and written submissions. Thereafter he was examined by the Commission. His deposition was video recorded for official record purposes.
During his deposition, Shri M. Venkataramanappa denied the charge of Plagiarism. When his attention was drawn to the two kannada books of his Guide which were used for copying, the vehemently denied having seen them. Thereupon he was pointedly asked whether the Charges of copying the details of which were given in the notice were correct or not. After initial hesitation he admitted that the contents to be correct. He has no satisfactory explanation to the charge of verbatim copying of nearly 100 pages from his Guides books, so also for not giving proper references in his Thesis. He admitted that some mistake has taken place while printing the Thesis. Further, he was not able to tell the Commission, how and where he has made use of the research material he has claimed to have collected over a period of 6 years under his previous Guide, nor was he able to say how he could complete his Thesis in less than one month after the change of Guide. His explanation for the change of Guide after a lapse of more than 6 years was also not convincing and all that he could say was he did not have a cordial relationship with his previous Guide. During examination, he further admitted that he has not acknowledged the help given by his previous Guide in his Thesis because of the strained relationship with him. To the questions on his field word, contents of half yearly reports submitted to the Guides etc. his explanation was also not satisfactory. It was clear that the date and the research material that he has claimed to have collected during his field visits did not find a place in his Thesis.”
15. He submits that once the State Government receives the directions from the Chancellor under Section 8(4) of the said Act, the State Government has no discretion in the matter. It has to comply with the directions issued by the Chancellor.
16. Sri B.M. Baliga, the learned counsel for the impleading applicant submits that the impleading applicant was a member of the Academic Council. In the deliberations of the Academic Council, the impleading applicant had opposed the granting of the Ph.D. degree to the petitioner on the ground that the thesis was plagiarized. On the opposition put up by the impleading applicant, the thesis was also referred to ISEC (Institute of Social and Economic Change). Its considered view was also that the petitioner’s thesis suffers from plagiarism. He submits that K.V.Irniraya’s Commission appointed by the Chancellor also came to the same conclusion. The said Commission even held that the Ph.D. degree is obtained by practicing fraud. He submits that the impleading applicant had filed PIL – W.P.No.6091/2009 against the State Government and six others including the petitioner. In the fitness of the things, the petitioner ought to have made the impleading applicant a party to these proceedings. He submits that the impleading application is filed about a month ago and that till now no objections whatsoever are filed to the same.
17. He submits that the principles of natural justice are observed, as the petitioner and his research guide had ample opportunities of defending themselves before the K.V.Irniraya’s Commission also. He submits that the petitioner is not entitled to be afforded with further opportunities. In matters falling for academic adjudication, the student is not required to the Apex Court’s judgment in the case of JAWAHARLAL NEHRU UNIVERSITY v. B.S. NARWAL reported in AIR 1980 SC 1666.
18. He submits that no illegality whatsoever is committed by the Government in passing the impugned order. The Government has the power under Section 10 of the said Act, which it has exercised. He submits that when the power is exercised by the Government under Section 10, it is only the University and not the student who is to be heard in the matter and that in the instant case University was associated with the decision-making at all stages.
19. He submits that even if the orders were to be passed by the Syndicate in exercise of the power conferred by Section 70, the outcome would have been the same. The Syndicate’s withdrawal of the Ph.D. degree could have been challenged before the Chancellor. In the instant case, the annulment itself is on the basis of the directions issued by the Chancellor.
20. Sri Baliga further submits that the statute has conferred the power on the Government to pass the impugned order. He submits that in exercise of the power conferred by Section 10 of the said Act, the State Government may annul any order, notification, resolution or proceedings of the University, which also includes the Syndicate’s resolution to award the Ph.D. degree. He submits that there cannot be any challenge to the exercise of the statutory power in the absence of any challenge to the validity of the provisions and as the order itself is passed in a different background altogether. He submits that the impugned order cannot be termed as arbitrary by any stretch of imagination. He submits that at every stage the petitioner was given adequate opportunities to take part; natural justice requirements are exhausted.
21. Sir G.R.Gurunath, the learned counsel for the respondent No.2 submits that earlier the petitioner had file W.P.No.13031/2006 and that on its dismissal by the learned Single Judge, the petitioner preferred W.A.No.843/2007, which also came to be dismissed by the Division Bench. He submits that the petitioner is therefore not justified in filing the second petition on the same cause of action. He submits that the petitioner has acquiesced to the matter attaining the finality at the hands of the Division Bench in W.A.No.843/2007. He has also relied on the Apex Court’s judgment in the case of STATE OF U.P AND ANOTHER v. LABH CHAND reported in AIR 1994 SC 754 wherein the filing of the second petition on the same subject matter was deprecated by the Apex Court. He read out the orders passed by the learned Single Judge and the Division Bench in W.P.No.13031/2006 and W.A.No.843/2007 wherein both the Benches have held that prima facie the petitioner has committed the act of plagiarism.
22. In the course of rejoinder, Sri M.R.Shailendra, the learned counsel for the petitioner submits that having initiated the proceedings under Section 8 of the said Act, the proceedings ought to have been concluded following the further provisions contained in sub-Section 8(5), (6) and (7) of the said Act, which are extracted hereinbelow:
“8. Discipline, Inspection and Control.-
(5) The State Government shall direct the Vice-Chancellor to initiate such action as has been directed by the State Government with respect to the findings in the report of enquiry or inspection and the Syndicate shall implement the directions of the Government.
(6) The Vice-Chancellor shall communicate to the State Government a report of action in compliance with the directions of the State Government as specified in the orders of the State Government.
(7) If the Vice-Chancellor fails to comply with the directions of the State Government then it shall be reported to the Chancellor whose order shall be final and shall be implemented by the Vice-Chancellor within such time as set out in the orders of the Chancellor.”
23. In the course of rejoinder, the learned Senior Counsel Sri Subramanya Jois submits that the respondents are deliberately diverting the issues involved in this petition. In the instant petition, what is challenged is the validity of the Government Order annulling the Ph.D. degree. In the earlier rounds of litigation (W.P.No.13031/2006 and W.A.No.843/2007) what was challenged was only the validity of the initiation of the inquiry proceedings.
24. The learned Senior Counsel submits that the expression of the view that there is prima facie case of plagiarism does not mean that, on holding the elaborate inquiry, the prima facie conclusion is to be invariably made the ultimate or final conclusion.
25. He submits that neither Section 8 nor Section 10 of the said Act contain any non-obstante clause. Both the Sections fall in Chapter II under the heading ‘Universities’. He submits that there is a separate chapter dealing with the enrollment in degrees in the said Act. The same is in Chapter II, Section 70 falling in Chapter XI deals with the withdrawal of degrees or diplomas. In view of the special provision, the degree can be withdrawn only by invoking Section 70 of the said Act and in a manner prescribed by the provisions contained in the said Section.
26. He relied on the Apex Court’s judgment in the case of KUNWAR PAL SINGH (DEAD) BY LRS. v. STATE OF U.P. AND OTHERS reported in (2007) 5 SCC 85 to advance the contention that when the statute prescribes a particular manner for doing a particular act, that act must be done in that manner alone.
27. The submissions of the learned counsel have received my thoughtful consideration. The petitioner may not have sought any relief against the impleading applicant, but the impleading applicant has been consistently resisting the awarding of the Ph.D. degree to the petitioner in different proceedings. This is a case in which subtle distinction has to be made between a ‘necessary party’ and a ‘proper party’. A ‘necessary party’ is the one in whose absence the adjudication can take place, a ‘proper party’ is the one in whose absence the adjudication can take place but the adjudication may not be effectual. Considering the factual matrix of this case, I have no hesitation in holding that the impleading applicant is a ‘proper party’, though not a ‘necessary party’ for the adjudication of the issues falling for consideration in this case. I.A.No.1/2012 is allowed. The petitioner’s side is directed to amend the cause title arraigning the impleading applicant as the respondent No.4.
28. The impugned order states that it is passed in exercise of the power conferred by Section 10 of the Act. Section 10 is in Chapter II, which has the heading ‘The Universities’. The provisions contained in the said Section are already extracted hereinabove.
29. The giving and withdrawal of degrees, etc. are contained in Chapter XI. The said Chapter XI has the heading ‘Enrolment and Degrees’. Section 70 dealing with the withdrawal of the degree in the said Chapter reads as follows:
“70. Withdrawal of Degree or Diploma.- (1) The Syndicate may on the recommendation of the Academic Council withdraw any distinction, degree, diploma or privilege conferred on or granted to, any person by a resolution passed by a majority of not less than two-thirds of the members present and voting at the meeting, if such person has been found to have obtained such a degree or diploma or certificate fraudulently or has obtained admission through a false caste certificate.
(2) No action under this section shall be taken against any person unless he has been given an opportunity to show cause against the action proposed to be taken.
(3) A copy of the resolution passed by the Syndicate shall be immediately set to the person concerned.
(4) Any person aggrieved by the decision taken by the Syndicate may appeal to the Chancellor within thirty days from the date of receipt of such resolution.
(5) The decision of the Chancellor on such appeal shall be final.”
30. When Section 10 provides for the annulment of the orders, resolution, etc. of the University and when Section 70 provides for the withdrawal of degree, the question that falls for my consideration is:
“Whether the withdrawal of the Ph.D. degree awarded tot the petitioner has to be in exercise of power conferred by Section 10 or Section 70 of the said Act?”
31. The Act has to be read as a whole and the contradictions/overlappings within it need to be resolved. It is to be determined as to which in the leading provision and which is the subordinate provision and which must give way to the other. When a specific provision is made in an Act or an Instrument, it is presumed that the situation is intended to be dealt with by the specific provision. It is expressed in the maxim generalibus specialia derogant (special provisions override general ones). The Converse principle is generalia specialibus non derogant (general provisions do not override special ones).
32. Thus, when a specific provision is made for withdrawing the degree, the withdrawal has to be thereinaccordancewith.
33. The University is a facilitator of achieving excellence in education. It is the statutory right and duty of the University to regulate the academic standards. If it finds that the petitioner has obtained the Ph.D. degree fraudulently by kidnapping or reproducing certain portions from any other source, it is bound to withdraw the Ph.D. degree awarded. But the same has to be done in a manner prescribed by and known to law. On the putting up of the recommendations by the Academic Council, the Syndicate has to pass the resolution by a majority of not less than 2/3rd of the persons present and voting at the meeting. But before taking any action adverse to the interest of a person, he is to be given an opportunity to show the cause against the action proposed to be taken, as per Section 70(2). Sun-section (3) of Section 70 requires the Syndicate to send a copy of the resolution to the concerned person immediately. If that person has any grievance over the decision taken by the Syndicate, he is not remediless. Section 70(4) of the Act gives to the aggrieved party an opportunity to file an appeal to the Chancellor. The decision of the Chancellor on such appeal is final, as per Section 70(5) of the said Act.
34. This being the scheme of the Act, the Government cannot pass an order an order Section 10(1) of the said Act withdrawing the Ph.D. degree. But this does not mean that the impugned order has to be quashed. The impugned order is passed pursuant to the Chancellor’s order under Section 8(4) of the said Act. The impugned order is therefore only required to be read down to mean that the State Government has directed the Vice Chancellor to initiate such action with respect to the findings of the inquiry report.
35. The impugned order is therefore to be treated as the State Government’s order under Section 8(5) of the Act; now the proceedings for withdrawing the Ph.D. degree have to take place strictly in keeping with the provisions contained in Section 70 of the said Act.
36. As the petitioner gets the opportunity to show cause to the Syndicate and thereafter prefer an appeal before the Chancellor, if the Syndicate passes the resolution, which is not acceptable to him, none of the procedural or substantive rights of the petitioner would be infringed. If the impugned order is treated as the one passed under Section 8(5) of the said Act, the petitioner also cannot have any grievance over his representation not being considered by the State Government.
37. In the result, this petition is allowed in part by reading down the impugned order as the one passed under Section 8(5) of the said Act and with a direction to the respondent Nos.2 and 3 to initiate and conclude the proceedings in the matter of withdrawal of the petitioner’s Ph.D. degree, on the ground of plagiarism, in accordance with the provisions contained in Section 70 of the said Act.
38. This petition is accordingly disposed of. No orders as to costs.
39. Now that the main matter itself is disposed of, nothing survives for any consideration of Misc.W.4877/2011 for vacating stay. It is therefore dismissed as having become unnecessary.