Gandhi Chailshtori Mohmood Vs. Vice Chancellor Karnataka University - Court Judgment

Excerpt:
karnataka state universites act, 1976 (karnataka act no. 28 of 1976) - section 62(2) -- powers conferred only on syndicate to propose punishment on the report of vice chancellor -- no indication that syndicate can delegate such powers or ratify action of vice-chancellor -- conferment of power exclusive.;on the allegations of malpractices at examinations, accepting the report after enquiry by the malpractices committee, vice chancellor imposed punishment of debarment from live consequtive examinations and cancellation of performance at relevant examination ; action of vice-chancellor being challenged on the ground he had no jurisdiction to impose the punishment:;sub-section (2) of section 62 of the act. confers power only on the syndicate of the university to inflict the punishment of.....orderchandrakantaraj urs, j.1. these six petitioners are iranian citizens who were at the relevant time studying in colleges affiliated to the karnataka university, dharwar. at the supplementary examinations held by that university for science students in the month of november, 1985, the petitioners are said to have committed malpractices at the examinations, as a result of which, they were subjected to an enquiry by the malpractices committee (hereinafter referred to as the committee). it appears that the committee submitted a report to the vice chancellor who had appointed that committee and he in turn accepted the report of the committee and issued an order thereafter imposing the punishment on the students of being debarred from taking five consecutive examinations of the university.....

Judgment:
ORDER

Chandrakantaraj Urs, J.

1. These six petitioners are Iranian citizens who were at the relevant time studying in Colleges affiliated to the Karnataka University, Dharwar. At the supplementary examinations held by that University for Science students in the month of November, 1985, the petitioners are said to have committed malpractices at the examinations, as a result of which, they were subjected to an enquiry by the Malpractices Committee (hereinafter referred to as the Committee). It appears that the Committee submitted a report to the Vice Chancellor who had appointed that Committee and he in turn accepted the report of the Committee and issued an order thereafter imposing the punishment on the students of being debarred from taking five consecutive examinations of the University from the date of the order as well as cancelling their performance at the relevant examination in which they are said to have committed Malpractices. These facts are not in dispute.

2. Immediately on receipt of such order, the students have filed these Writ Petitions in this Court. Some lime earlier when these matters were heard by Rama Jois, J., the petitioners urged that they were Iranian citizens who could not stay indefinitely in India with uncertain future and if they returned to Iran, under the law said to be existing there, they were likely to be absorbed into compulsory military services jeopardising their educational career and therefore the Court should strike down the order as admittedly the Vice-Chancellor did not have jurisdiction under the Karnataka State Universities Act, 1976, (hereinafter referred to as the Act) to impose that punishment.

3. It would be useful at this stage to State that the University by then had entered appearance and resisted the contentions of the petitioners on the ground that the Vice-Chancellor was acting under powers conferred on him by Sub-section (5) of Section 12 of the Act. It was at that stage, Rama Jois, J., made an order on 18th April, 1985. It would be useful to extract para-4 of that order :

'4. Learned Counsel for the petitioners submitted that the petitioners have been placed in predicament situation under the following circumstances :

They are Iranian nationals. The visa period is coming to an end and the therefore they are bound to quit India. Further, the moment they go to Iran under the law in force there, they have to serve in the military compulsorily a period of 2 1/2 years. The petitioners arc also unable to stay in India till October, 1987 and thereafter to appear in the examination ''

Therefore, he gave an interim direction to place the representations of the petitioner if made before the commencement of the meeting of the Syndicate of the University, and if so placed, the Syndicate shall consider the said representations on merits Pursuant to that, the students in question as disclosed by the records produced by the University to-day made their representations and the Syndicate at its meeting held on 27-4-1985 in Subject No. 49 resolved as follows :

'49. Consideration of the representations from the Iranian Ex-students of B.Sc., Part-III of October, 1984 examination. This may be read with item No. 38 dated 27-4-1985.

Note :- (1) Copies of the representations from the Iranian ex-students of B.Sc., Part III of October, 1984, are enclosed herewith (vide page No. 79). The representation is placed for consideration on merits, as per direction of the High Court of Karnataka, Bangalore, as these candidates have filed Writ Petitions challenging the order dated 25-3-1985.

(2) The candidates in question who were involved in the malpractice cases, are debarred from appearing the examination for next five chances, in addition to cancelling their performance at B.Sc., Part-III examination of October, 1984. In this connection a report of the action of the Vice-Chancellor under item No. 38 may kindly be perused.

The representation received from the Iranian ex-students was considered at length by the Syndicate. The Syndicate considered this representation not only on humanitarian grounds, but also in terms of the order passed by the Hon'ble High Court of Karnataka. In view of the nature of allegations against these ex-students, the gravity of the alleged malpractices and the involvement of rot only students but ethers also, a sub-committee was appointed exclusively for this purpose. After perusing in detail the representation concerned and also the inquiry report, it was found that grounds were urged in the representation. Therefore, resolved to reject their representation.'

This undoubtedly substantiates the contention advanced for the petitioners that the Syndicate had not proposed the punishment with which they were inflicted upon earlier. What the Syndicate did on 27-4-1985 was first at Subject. No. 38 to be found at page 14 of the records referred to above, to ratify the action of the V ice-Chancellor in appointing the Committee and his acceptance of the report of the Committee and subsequent inflicting of the punishment of debarring the petitioners for five consecutive examinations concurrent with the cancellation of performance at that particular examination. The procedure appears to be rather strange.

4. Sub-section (1) of ejection 62 of the Act makes the Vice-Chancellor the repository of ail powers in regard to the maintenance of discipline in the University and its affiliated Colleges. Sub-section (2) of Section 62 of the Act confers power only on the Syndicate of she University to inflict the punishment of rustication or debarment of a student of the University either from the College or in respect of the examinations or from a hostel attached to a College. Even the Syndicate is enjoined by Sub-section (2) of Section 62 of the Act only to action the report of the Vice-Chancellor and after proposing the punishment calling upon the affected students to show cause against the proposed punishment. From what has been narrated above and from the resolution of the Syndicate extracted above, it is clear that there was no proposal of punishment by the Syndicate at any point earlier than the date of the resolution namely, 27-4-1985. If there was no proposal of the punishment by the Syndicate then there has been no compliance of the requirement of Sub-section (2) of Section 62 of the Act.

5. However, Shri V. B. Ganachari, Learned Counsel appearing for the University, contended that the Syndicate was required to do no more than ratify the act of the Vice-Chancellor having regard to Sub-section (5) of Section 12 of the Act under which the Vice-Chancellor earlier acted in debarring the students. Otherwise, the argument is, the action taken by the Vice-chancellor under Sub-section (5) of Section 12 of the Act was legitimate and all that was required under Sub-section (5) of Section 12 of the Act was to place it before the appropriate authority for ratification. It has been shown at Subject No. 38 at page 44 of the records and the resolution at Subject No. 49 was no more than obeying direction of this Court in the given case, ie., consider the representation of the students in question. If the two resolutions are read together, ha contended, there has been compliance of the requirement of both Section 12(5) as well as Sub-section (2) of Section 62 of the Act.

6. It is very difficult to accept the contention. Sub-section (5) of Section 12 of the Act speaks of an action which the Vice-Chancellor may take in times of emergency. Mr. Ganachari was unable to point out in what manner the commission of malpractice by the students at the examination created an emergency in which the Vice-Chancellor was required to act. Malpractice is not something unanticipated giving room for or calling for emergent action. Malpractice at examination is something which every University has anticipated and has provided for it. They have invigilation squads with special powers to inspect the examination halls, supervise the work of the examination hall and other invigilators and wherever found catch the students who indulge in that practice and subject them to enquiry, thereafter for punishment wherever the students deserve it. If that is part of the examination scheme to ensure fairness to all students I do not think any emergency arose if the students indulged in malpractice which called for an action by the Vice-Chancellor.

7. Sub-section (3) of Section 12 of the Act has fallen for consideration before this Court in more than one case and in some cases this Court has expressed doubts whether the Vice-Chancellor can in fact invoke this power in all situations. Emergency is something which occurs and Deeds an immediate solution without which the work of the University is likely to come to a stand still. If that test is not satisfied, it is not at the discretion of the Vice-Chancellor that emergency can be created. But he can only act when a real emergency exists. Therefore, there is no substance in the contention that the punishment by the Vice-Chancellor was an act done in an emergency. Assuming that he had the power and acted as such in an emergency, the question of ratification in regard to cancellation of performance 01 debarment from taking future examinations does not arise as that action can be taken only by the authority which is invested with that power, it is the Syndicate. Either in the provision conferring distinctly and enumerating the powers of the Syndicate or in Section 62 of the Act itself there is no indication that power was so conferred by Subsection (2) of Section 62 of the Act, the Syndicate can either delegate that power or ratify the action taken by the Vice Chancellor. If the power conferred on the specified authority of the University under Sub-section (2) of Section 62 of the Act is not delegated, then it cannot be exercised by any one else. The conferment of power is exclusive and what is exclusive unless qualified, cannot be delegated.

8. There is no substance in the defence put forward by the University. This Court in that circumstance should have no hesitation to strike down the order as being without the authority of law as well as not being in accordance with the procedure prescribed by law. Accordingly, the impugned orders are struck down. In the result, these Writ Petitions are allowed and the rule made absolute. No costs.