Purbasha Ghosh and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
education - examination--re-examination--diploma course--shortage of percentage in attendance--petitioners not allowed to appear in the examination of 2nd semester of 1st year--under the rules, the minimum attendance necessary for appearing in the end semester examination is 80%--8 days of absence more than 20% from training was for valid reason--respondents ought to have considered the case of petitioners--since absence for jaundice was a valid ground, no occasion for respondents to discriminate petitioner--held, decision of respondents violative of article 14 of the constitution. - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in exceptional cases, the idtr allows the trainees to appear in examination even if the attendance is less than a 80%, but with the approval of the governing council. the attendance of both the 1st and final semester (2nd semester) then the attendance of first and second petitioner is well within the permissible limit being more than 80%. the petitioners filed their representation to condone 6 to 7 days period of absence on the ground of illness but it was not allowed. ' one trainee, namely, sri sanjiv kumar failed to attend minimum attendance of 80% as he had met with an road accident. similar was the case of another trainee, sri chiranjit singh, who failed to attend the minimum attendance of 80% as he suffered from viral hepatitis (jaundice) and remained absent for about 4 weeks. hence this student should not be recommended to sit for semester end exam due from 02nd august 03. both the above trainees are from 1st year (2nd semester). put up for kind approval. hence this student should not be recommended to sit for semester end exam due from 02nd august 03. under the rules, the minimum attendance necessary for appearing in the end semester examination is 80%. that means a trainee is automatically entitled to take leaved upto 20% i.s.j. mukhopadhaya, j.1. the writ petition has been preferred by petitioners for issuance of an appropriate writ/order/ direction on respondents to show cause as to why they (petitioners) be not allowed to appear in the examination of 2nd semester of 1st year which is being conducted by the 4th respondent.further prayer has been made to direct the concerned respondents to take re-examination of the petitioners both of theory and practical papers of 2nd semester of 1st year, immediately and forthwith with further prayer to quash the letter no. idtr/jsr/ trg/15/27 dated 31st july 2003 issued to their parents, whereby and whereunder they have been informed that the petitioners are not being allowed to appear in the examination due to shortage of percentage.2. the petitioners are the students of diploma course, namely, diploma in tool die making (hereinafter referred to as the 'dtdm') in indo danish tool room (hereinafter referred to as the 'idtr') i.e the 4th respondent.according to petitioner, the 1dtr was established under the technical cooperation between the government of india, government of denmark and the then government of bihar (now government of jharkhand). it was established as government owned society. the body is financially and administratively dominated by and is under the control of the government and thereby is a state within article 12 of the constitution of india.3. they were admitted in idtr in the month of september, 2002 in four years diploma course (dtde) which is based on semester system. after completion of the 1st semester of 1st year, they were pursuing their studies for their 2nd semester which they completed between march, 2003 to july, 2003. as per rules and prospectus, the trainees are supposed to have minimum attendance of 80% for appearing in 2nd semester examination. in exceptional cases, the idtr allows the trainees to appear in examination even if the attendance is less than a 80%, but with the approval of the governing council.their further case is that the first petitioner while pursuing her training (studies) for 2nd semester, suffered from high fever and health problem for which she remained under constant medical treatment between 18th april, 2003 and 24th april, 2003 (two days) and from 10th july, 2003 to 13th july, 2003 (four days).the second petitioner was also suffered from serious ailments, such as jaundice and as such, he was also advised total rest by the doctor during certain period. in the case of both the petitioners while they were ill and could not attend the class hours, they were sent to their respective homes (from hostel) by the instructors with the help of other students. after completion of 2nd semester, suddenly their parents were served with a notice dated 31st july, 2003 intimating that their attendance are below 80%, as such, they will not be allowed to appear in the 2nd semester examination.it is stated that the attendance of first petitioner is 76.6% and second petitioner is 75%.4. counsel for the petitioner submitted that if 80% of the attendance is necessary for appearing in the end semester examination, then automatic permissible limit of absent is 20% i.e. 25 days in this case. first petitioner was absent for about 32 days i.e. 7 days more than the permissible limit and the second petitioner was absent for 31 days i.e. 6 days more than the permissible limit. if the total attendance of the 1st year is counted i.e. the attendance of both the 1st and final semester (2nd semester) then the attendance of first and second petitioner is well within the permissible limit being more than 80%.the petitioners filed their representation to condone 6 to 7 days period of absence on the ground of illness but it was not allowed. though, in the cases of some other trainees, such as sanjiiv kumar and chiranjit singh whose attendance were much below 80%, even below the attendance of first petitioner. their period of absence was condoned and they were allowed to appear in the examination.5. counsel for the respondents-idtr tried to distinguish the petitioners' case and the ease of sanjiv kumar and chiranjit singh. it was submitted that the petitioners were found absent almost in every month without any valid reason. therefore, the benefit of relaxation of rule was not allowed. but such submission cannot be accepted for the reasons mentioned hereunder.6. idtr has its own training, hostel & library rules. as per rules for the examination, minimum attendance necessary for appearing in the end semester examination is 80%. but there are rules to relax the minimum attendance under rules-13.0 and 18.0 of 'training rules', which reads as follows :'13.0 leave--(i) a trainee who is injured due lo an accident during his training at the tool room and is unable to attend his training on account of that, shall be allowed leave, provided it is certified by such medical authorities as may be specified for their purpose by the general manager that he is unable to attend training on account of that injury.(ii) no other leave as excepting otherwise provided in this rule shall be permissible, even on sickness, to the trainees during the course. any other period of absence, including late coming or any other commission, misconduct or otherwise shall be treated as absence from training for the purpose of compilation of requisite percentage of attendance for eligibility for appearing in semester examination/final examination.18.0 power of amend/relax the rules--these rules including fee structure are subject to change and amendment/relaxation in the rule(s) can be made by the governing council or its chairman or any of its delegated authority or any point of time.'one trainee, namely, sri sanjiv kumar failed to attend minimum attendance of 80% as he had met with an road accident. his attendance was only 77.45%. the respondents relaxed it under rule-18 (as evidence from annexure-g to the counter, affidavit) and he was permitted to appear in the examination. similar was the case of another trainee, sri chiranjit singh, who failed to attend the minimum attendance of 80% as he suffered from viral hepatitis (jaundice) and remained absent for about 4 weeks. his attendance was only 75.75%. in his case also, rule was relaxed by the respondents (as evident from annexure-g/1 to the counter affidavit) and he was allowed to appear in the examination.on the other hand, when the cases of petitioners were taken up, though the attendance of at least one of the petitioners, namely, purbasha ghosh was more than the attendance of chiranjit singh i.e. 76.6% and the other petitioner, ugrasen kumar singh suffered from jaundice but their cases were not recommoneded for relaxation of rules to enable them to appear in the examination. this will be evident from the copies of file note enclosed by respondents as annexure-b & c to the counter affidavit.annexure-bidtrjamshedpursub : not allowing to sit for sem. and exam, due to shortage of attendance,enclosed, please find application from two trainees exam. the following observations are put up herewith for review.nameroll no.marchaprilmayjunejulytotalpurba sha ghosh02-46 (2nd sem)14/2315/2321/2618+323/2691+4/123+1no. of daysabsent 0960.8%0865%0580%07-0484%0388%3276.6%remarks without information5 days sick, 3 days days without informationwithout informationwithout informationsick leave applied the above student and her parents were informed regarding her shortage of attendance and was advised to improve. medical certificate for the month of april has been submitted just one back. the maximum no. of days a student could be absent was 25 days where as this student remained absent for 32 days out of which for 8 days she had valid reason and rest 24 days without any valid reason. hence this student should not be recommended to sit for semester end exam due from 02nd august 03. both the above trainees are from 1st year (2nd semester). put up for kind approval.annexure-cidtr jamshedpurnameroll no.marchaprilmayjunejulytotalugrasenkr. singh02-46(2nd sem)13/2378%118/2378%11/2642%19/2576%26/26100%374/50075%no. of days absent 05051506 3remarks without informationwithout informationjaundicejaundice the above student and his parents were informed every month regarding shortage of attendance and to improve. the maximum no. of days a student could be absent for total 31 days out of which 10 days is without any valid reason.hence this student should not be recommended to sit for semester end exam due from 02nd august 03.under the rules, the minimum attendance necessary for appearing in the end semester examination is 80%. that means a trainee is automatically entitled to take leaved upto 20% i.e. 25 days in the present case. the question of grant of leave under rule-13 or relaxation of rules under rule 18 does not arise in respect to such 20% of leave i.e. 25 days (in the present case). if a trainee is absent in more than 20% of classes, i.e more than 25 days then only the question of grant of leave under rule 13 of relaxation of rule under rule 18 arises.7. in the present case, the competent authority was required to consider the question of grant of leave under rule 13 or relaxation of rules under rule 18 only in respect to the period beyond 20% i.e. beyond 25 days. they cannot take into consideration the 20% leave obtained by a trainee i.e. absence of 25 days.the aforesaid principle is also known to the competent authority will be evident from the cases of sri sanjiv kumar and sri chiranjit singh where the authorities have followed the aforesaid principle. in their cases, only the period of shortage of attendance was considered and was relaxed under rule 18. on the other hand, in the case of these petitioners, they discriminated the petitioners and illegally interpreted the shortage of attendance. for example, in the case of purbasha ghosh, the shortage of attendance was only 7 days (32 days-25 days) but the authority mentioned that no valid reason has been shown with regard to 24 days, which was not required to be shown by the trainee.in the case of purbasha ghosh, it has been accepted that 8 days of her absence from training was for valid reason. if that be so, the respondents should have relaxed the rule in her case as was done in the case of chiranjit singh whose attendance was much less than purbasha ghosh. in the case of chiranjit singh, the shortage of attendance was more than 10 days.similar is the case of ugrasen kumar singh. in his case there was only 6 days of shortage of attendance (31 days-25 days). it has been accepted by respondents in the note (annexure-c) that 21 days of his absence for jaundice was a valid ground. in such a case, there was no occasion for respondents to discriminate him and to reject his case.in these circumstances, the respondents having discriminated the petitioners and their decision being violative of article 14 of the constitution of india, such decision cannot be upheld.8. this court has noticed that the petitioners were forced to take re-admisssion in 1st semester during the pendency of the writ petition. therefore, the respondents cannot derive any advantage of the same.during the pendency of the hearing, the respondents rejected the prayer of petitioners for their admission in the 2nd year (3rd semester), vide letter no. 1726 dated 10th october, 2003, subject to the decision of the case. the respondents cannot take any advantage of the same.9. in the facts and circumstances, the following directions are given in the interest of justice.(1) the respondents are directed to relax the attendance of petitioners, as has been done in the case of two others and referred above taking into consideration the fact that the petitioner, purbasha ghosh had valid reason for not attending the 2nd semester class for 8 days and ugrasen kumar singh had valid reason for not attending the class for 21 days, as admitted by respondents in their noting contained in annexure-b & c to the counter affidavit.(2) the respondents will hold a special 2nd semester (1st year) examination, immediately and allow the petitioners to appear in such examination. and(3) in the meantime, the respondents will admit the petitioners provisionally in the 3rd semester (2nd year), subject to their result of 2nd semester special examination. whatever the attendance, in the meantime, the petitioners have given during the pendencty of the writ petition will be counted for the purpose of their attendance in 3rd semester (2nd year).in the facts and circumstances, this court also impose a cost of rs. 2000 (two thousand) on the respondents for payment of rs. 1000(one thousand) each in favour of petitioners.10. the writ petition is allowed, with the aforesaid observations/directions.