Miss. Vijay Letchumy and Another Vs. Kasturba Medical College, Manipal and Others - Court Judgment

Excerpt:
- constitution of india -- article 226; [a.s. bopanna, j] jurisdiction under held, high court will have jurisdiction regarding the statutory contracts and not a non statutory contracts. proper remedy is to work out through the competent civil court. order1. common questions of law arise in these two writ petitions which have been heard together and shall stand disposed of by this common order. 2. the petitioners are malaysian nationals. they were admitted to the first year of m.b.b.s. course during the academic year 1990-91. while they had yet to complete their course, the marks card of the qualifying examination produced by them at the time of their admission were sent for verification to the pre-university education board at bangalore. the verification revealed that the petitioners had failed in the qualifying examination but had produced fabricated marks cards with a view to secure admission in the professional course. as many as 12 other candidates were also found to have similarly produced fabricated certificates and secured admission. a direction was accordingly issued by the director of pre-university department to the t.m.a. pai foundation, manipal to cancel the admission of all the 14 students. theadmissions were accordingly cancelled and communicated to the candidates concerned. aggrieved, the petitioners and others approached this court in writ petition no. 5145 of 1994 and connected matters which were disposed of by a common order dated 14th february, 1996 with the direction that the authorities, should pass fresh orders within a period of 2 months after hearing the petitioners. an enquiry is thereafter said to have been conducted by the director of pre-university education on 22nd of april, 1996 and 10th of may, 1996 in which only 13 candidates attended the 14th namely lau haw ming having remained absent. the director eventually passed an order on 29-6-1996 holding that all the 14 candidates including the petitioners herein had produced fabricated pass certificates of ii puc and that the admissions secured by them based on the said certificates were illegal and hence liable to be cancelled. the admissions were thus cancelled for the 2nd time with a further direction that the candidates be prosecuted before the competent court. aggrieved the petitioners have come up with the present writ petitions assailing the order passed by the director inter alia on the ground that the same suffered from non-application of mind and was wholly arbitrary. no reasons or other justification has according to the petitioners been advanced while cancelling the admission of the students thereby rendering the impugned order unsustainable. 3. in the statement of objections filed on behalf of the respondents it is urged that the finding recorded by the director is based on the materials produced in the course of the enquiry and the thorough verification of the result sheets of the examination taken by the candidates, which had revealed that the marks cards produced by them were fabricated. reliance has been placed upon attendant circumstances in support of the conclusion that the marks cards in question were actually fabricated documents. 4. mr. visweswara, appearing for the petitioners raised a short point in support of the petitions and urged that the impugned order passed by the director was legally unsustainable being non-speaking and perfunctory in nature. it was contended that the nature of the enquiry conducted by the director and the consequences that were bound to flow from the same, obliged him to not only act fairly and objectively but also to record reasons in support of the conclusion drawn by him,thereby demonstrating due and proper application of mind. no reasons, it was contended have been recorded by the director except that the enquiry has revealed that the pass certificates produced by the petitioners were fabricated. as to how has the director arrived at the said conclusion, has not been indicated nor the material supporting the said conclusion identified or discussed. 5. there is considerable merit in the submission made by mr. visweswara. the order passed by the director is in two parts. one comprising the preamble and the other its operative portion. insofar as the preamble is concerned, the same sets out the events in chronological order leading to a de novo enquiry and the fresh order. it records that this court has while disposing of the writ petition earlier, directed a fresh enquiry into the matter which was conducted on 22nd of april, 1996 and 10th may, 1996. the order then proceeds to record the conclusions in no more than four lines which read thus: 'after careful examination of all the cases, as well as the enquiry in detail, the following order is passed. order no. pue/exam-b/enq/oct. 92/93-94, dated 29-06-1996. all the 14 (fourteen) candidates as detailed in the annexure to this order are found to have produced fabricated pass certificates of ii puc. hence, the admissions secured by them based on these fabricated certificates are illegal and is liable for cancellation and accordingly hereby cancelled'.6. it is apparent from a reading of the order that the process of reasoning by which the director came to the conclusion that the marks cards were fabricated has not been disclosed. the material on the basis of the said conclusion was recorded is also not disclosed or referred to. all that is stated is that the cases have been carefully examined and a detailed enquiry conducted based on which a conclusion is drawn and direction for cancellation of the admissions issued. as to what transpired from the examination of the cases and what were the inferences and conclusions available from the enquiry conducted by him, is not disclosed nor is the material constituting the basis of the conclusions of the enquiry officer referred to or discussed. suffice it to say that the order does not demonstrate a due and proper application of mind on the part of the director. that an order like the one impugned herein ought to have been a speaking order disclosing application of mind on the part of the authority passing the same, cannot be disputed particularly when the same was bound to adversely affect the interests of the candidates whose admissions were being cancelled on the basis thereof. there is no gainsaid that director was exercising quasi-judicial powers while holding the enquiry and passing orders on the basis thereof. the duty to act judicially was therefore implicit in the very nature of the proceedings conducted by him. a due discharge of that duty required the director to record reasons in support of the conclusion drawn by him, for it is only by disclosure of reasons that the authority can be said to have applied its mind. making a generalised statement that the cases have been carefully examined and the enquiry conducted in detail without indicating as to what that examination revealed or discussing the material constituting the basis of the conclusions can hardly suffice. it is not a case where the authority has on appreciation of the evidence assembled in the course of the enquiry recorded a finding and the court called upon to reappraise that evidence to substitute its finding for that of the authority. such a course may not be permissible for this court does not sit in appeal while examining the validity of an order in its writ jurisdiction. more than the decision this court is concerned with the decision making process and the least that the law requires is a due and proven application of mind on the part of the authority. non recording of reasons suggesting non-application of mind in a matter which is quasi-judicial in nature is also a manifestation of an arbitrary exercise of power. the necessity behind recording of reasons by an administrative authority was emphasised by the supreme court in s.n. mukherjee v union of india, in the following words: 'the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision making. the said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. therefore, the requirement that reasons be recorded shouldgovern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. it is however not required that the reasons should be as elaborate as in the decision of a court of law. the extent and nature of the reasons would depend on particular facts and circumstances. what is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. the need for recording of reasons is greater in a case where the order is passed at the original stage'.(emphasis supplied) again in hira sugar employees co-operative consumers stores limited v p.p. korvekar, this court had an occasion to state the legal position as regards the need, for making speaking orders. this court observed thus: 'application of mind cannot be inferred unless mind is disclosed by the authority passing the order, and disclosure of mind is best done by recording reasons for the conclusion being arrived at. an order passed without proper application of mind by the authority must be deemed to be per se arbitrary and even mala fide in law, even when the authority passing the same may in fact have no malice against the party who suffers such an order. the duty cast upon a statutory judicial or quasi-judicial authority to act only upon proper application of mind, fairly and objectively and to record reasons in support, of the order made whether the same be interim or final, can hardly be under played let alone undermined. this so particularly where the order passed by the authority creates or fastens liabilities against a citizen, for one of the most valued guarantees which the system provides to the citizen is a fair, objective, non-discriminatory, treatment to his rights free from the vice of arbitrariness'.reference may also be made in regard to mohinder singh gill and another v chief election commissioner, new delhi and others, where their lordships held that the correctness of an order made by a public authority can be judged only in the context and by reference to the reasons recorded therein and noton the basis of any fresh material that may be supplied by the authority passing the same subsequently. the court quoted with approval the following passage from commissioner of police, bombay v gordhandas bhanji: 'we are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself '.and proceed to declare the law thus: 'the second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. xxx xxx xxx orders are not like old wine becoming better as they grow older'.it is not therefore possible to uphold the order on the basis of any additional reasons that the respondent-director may like to cite in the counter-affidavit filed by him even though no such compelling reasons have been indicated which could possibly supply the deficiency in the order. in that view of the matter these writ petitions must succeed leaving open all other contentions urged by mr. visweswara including the contention that the petitioners did not have an opportunity to either examine the original record produced from the board or look into the enquiry report dated 24-8-1993 and the c.o.d. enquiry report dated 18-4-1995, reference whereto has been made in the impugned order. it shall be appropriate for the director to furnish copies of these reports as also provide an opportunity to the petitioners to examine all other material and documents that he may propose to rely upon while drawing up his findings andbefore passing a fresh order. principles of natural justice and fairness in action demand that the director does not utilise any material against the petitioners unless they have been given an opportunity to examine and make whatever representations they propose to make against the same. 7. in the result these petitions succeed and are hereby allowed. the impugned order dated 2nd july, 1996 passed by the director insofar as the same pertains to the petitioners herein, is hereby quashed with the direction that the director-respondent 2 herein shall pass fresh orders keeping in view the observations made hereinabove and after granting to the petitioners an opportunity of being heard in the matter. fresh orders shall be passed within six weeks from the date a copy of this order is produced by the petitioners before the director. the petitioners' entitlement to seek readmission to the m.b.b.s. course shall depend upon the fresh orders that the director may pass on the subject. 8. in the circumstances, the parties shall bear their own costs.

Judgment:
ORDER

1. Common questions of law arise in these two writ petitions which have been heard together and shall stand disposed of by this common order.

2. The petitioners are Malaysian Nationals. They were admitted to the first year of M.B.B.S. Course during the academic year 1990-91. While they had yet to complete their course, the marks card of the qualifying examination produced by them at the time of their admission were sent for verification to the Pre-University Education Board at Bangalore. The verification revealed that the petitioners had failed in the qualifying examination but had produced fabricated marks cards with a view to secure admission in the professional course. As many as 12 other candidates were also found to have similarly produced fabricated certificates and secured admission. A direction was accordingly issued by the Director of Pre-University Department to the T.M.A. Pai Foundation, Manipal to cancel the admission of all the 14 students. Theadmissions were accordingly cancelled and communicated to the candidates concerned. Aggrieved, the petitioners and others approached this Court in Writ Petition No. 5145 of 1994 and connected matters which were disposed of by a common order dated 14th February, 1996 with the direction that the authorities, should pass fresh orders within a period of 2 months after hearing the petitioners. An enquiry is thereafter said to have been conducted by the Director of Pre-University Education on 22nd of April, 1996 and 10th of May, 1996 in which only 13 candidates attended the 14th namely Lau Haw Ming having remained absent. The Director eventually passed an order on 29-6-1996 holding that all the 14 candidates including the petitioners herein had produced fabricated pass certificates of II PUC and that the admissions secured by them based on the said certificates were illegal and hence liable to be cancelled. The admissions were thus cancelled for the 2nd time with a further direction that the candidates be prosecuted before the Competent Court. Aggrieved the petitioners have come up with the present writ petitions assailing the order passed by the Director inter alia on the ground that the same suffered from non-application of mind and was wholly arbitrary. No reasons or other justification has according to the petitioners been advanced while cancelling the admission of the students thereby rendering the impugned order unsustainable.

3. In the statement of objections filed on behalf of the respondents it is urged that the finding recorded by the Director is based on the materials produced in the course of the enquiry and the thorough verification of the result sheets of the examination taken by the candidates, which had revealed that the marks cards produced by them were fabricated. Reliance has been placed upon attendant circumstances in support of the conclusion that the marks cards in question were actually fabricated documents.

4. Mr. Visweswara, appearing for the petitioners raised a short point in support of the petitions and urged that the impugned order passed by the Director was legally unsustainable being non-speaking and perfunctory in nature. It was contended that the nature of the enquiry conducted by the Director and the consequences that were bound to flow from the same, obliged him to not only act fairly and objectively but also to record reasons in support of the conclusion drawn by him,thereby demonstrating due and proper application of mind. No reasons, it was contended have been recorded by the Director except that the enquiry has revealed that the pass certificates produced by the petitioners were fabricated. As to how has the Director arrived at the said conclusion, has not been indicated nor the material supporting the said conclusion identified or discussed.

5. There is considerable merit in the submission made by Mr. Visweswara. The order passed by the Director is in two parts. One comprising the preamble and the other its operative portion. Insofar as the preamble is concerned, the same sets out the events in chronological order leading to a de novo enquiry and the fresh order. It records that this Court has while disposing of the writ petition earlier, directed a fresh enquiry into the matter which was conducted on 22nd of April, 1996 and 10th May, 1996. The order then proceeds to record the conclusions in no more than four lines which read thus:

'After careful examination of all the cases, as well as the enquiry in detail, the following order is passed.

Order No. PUE/EXAM-B/ENQ/OCT. 92/93-94, dated 29-06-1996.

All the 14 (fourteen) candidates as detailed in the annexure to this order are found to have produced fabricated pass certificates of II PUC.

Hence, the admissions secured by them based on these fabricated certificates are illegal and is liable for cancellation and accordingly hereby cancelled'.

6. It is apparent from a reading of the order that the process of reasoning by which the Director came to the conclusion that the marks cards were fabricated has not been disclosed. The material on the basis of the said conclusion was recorded is also not disclosed or referred to. All that is stated is that the cases have been carefully examined and a detailed enquiry conducted based on which a conclusion is drawn and direction for cancellation of the admissions issued. As to what transpired from the examination of the cases and what were the inferences and conclusions available from the enquiry conducted by him, is not disclosed nor is the material constituting the basis of the conclusions of the Enquiry Officer referred to or discussed. Suffice it to say that the order does not demonstrate a due and proper application of mind on the part of the Director. That an order like the one impugned herein ought to have been a speaking order disclosing application of mind on the part of the authority passing the same, cannot be disputed particularly when the same was bound to adversely affect the interests of the candidates whose admissions were being cancelled on the basis thereof. There is no gainsaid that Director was exercising quasi-judicial powers while holding the enquiry and passing orders on the basis thereof. The duty to act judicially was therefore implicit in the very nature of the proceedings conducted by him. A due discharge of that duty required the Director to record reasons in support of the conclusion drawn by him, for it is only by disclosure of reasons that the authority can be said to have applied its mind. Making a generalised statement that the cases have been carefully examined and the enquiry conducted in detail without indicating as to what that examination revealed or discussing the material constituting the basis of the conclusions can hardly suffice. It is not a case where the authority has on appreciation of the evidence assembled in the course of the enquiry recorded a finding and the Court called upon to reappraise that evidence to substitute its finding for that of the authority. Such a course may not be permissible for this Court does not sit in appeal while examining the validity of an order in its writ jurisdiction. More than the decision this Court is concerned with the decision making process and the least that the law requires is a due and proven application of mind on the part of the authority. Non recording of reasons suggesting non-application of mind in a matter which is quasi-judicial in nature is also a manifestation of an arbitrary exercise of power. The necessity behind recording of reasons by an Administrative Authority was emphasised by the Supreme Court in S.N. Mukherjee v Union of India, in the following words:

'The recording of reasons by an Administrative Authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Therefore, the requirement that reasons be recorded shouldgovern the decisions of an Administrative Authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It is however not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage'.

(emphasis supplied)

Again in Hira Sugar Employees Co-operative Consumers Stores Limited v P.P. Korvekar, this Court had an occasion to state the legal position as regards the need, for making speaking orders. This Court observed thus:

'Application of mind cannot be inferred unless mind is disclosed by the authority passing the order, and disclosure of mind is best done by recording reasons for the conclusion being arrived at. An order passed without proper application of mind by the authority must be deemed to be per se arbitrary and even mala fide in law, even when the authority passing the same may in fact have no malice against the party who suffers such an order. The duty cast upon a statutory judicial or quasi-judicial authority to act only upon proper application of mind, fairly and objectively and to record reasons in support, of the order made whether the same be interim or final, can hardly be under played let alone undermined. This so particularly where the order passed by the authority creates or fastens liabilities against a citizen, for one of the most valued guarantees which the system provides to the citizen is a fair, objective, non-discriminatory, treatment to his rights free from the vice of arbitrariness'.

Reference may also be made in regard to Mohinder Singh Gill and Another v Chief Election Commissioner, New Delhi and Others, where their Lordships held that the correctness of an order made by a public Authority can Be judged only in the context and by reference to the reasons recorded therein and noton the basis of any fresh material that may be supplied by the authority passing the same subsequently. The Court quoted with approval the following passage from Commissioner of Police, Bombay v Gordhandas Bhanji:

'We are clear that public orders, publicly made, in exercise of a Statutory Authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself '.

and proceed to declare the law thus:

'The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. xxx xxx xxx Orders are not like old wine becoming better as they grow older'.

It is not therefore possible to uphold the order on the basis of any additional reasons that the respondent-Director may like to cite in the counter-affidavit filed by him even though no such compelling reasons have been indicated which could possibly supply the deficiency in the order. In that view of the matter these writ petitions must succeed leaving open all other contentions urged by Mr. Visweswara including the contention that the petitioners did not have an opportunity to either examine the original record produced from the Board or look into the enquiry report dated 24-8-1993 and the C.O.D. Enquiry Report dated 18-4-1995, reference whereto has been made in the impugned order. It shall be appropriate for the Director to furnish copies of these reports as also provide an opportunity to the petitioners to examine all other material and documents that he may propose to rely upon while drawing up his findings andbefore passing a fresh order. Principles of natural justice and fairness in action demand that the Director does not utilise any material against the petitioners unless they have been given an opportunity to examine and make whatever representations they propose to make against the same.

7. In the result these petitions succeed and are hereby allowed. The impugned order dated 2nd July, 1996 passed by the Director insofar as the same pertains to the petitioners herein, is hereby quashed with the direction that the Director-respondent 2 herein shall pass fresh orders keeping in view the observations made hereinabove and after granting to the petitioners an opportunity of being heard in the matter. Fresh orders shall be passed within six weeks from the date a copy of this order is produced by the petitioners before the Director. The petitioners' entitlement to seek readmission to the M.B.B.S. Course shall depend upon the fresh orders that the Director may pass on the subject.

8. In the circumstances, the parties shall bear their own costs.