V.K. Shukla, J.@mdashPetitioner has been pursuing Ph. D. Degree with Persian subject, and for the said purpose, he had been admitted to Aligarh Muslim University and had been staying in the hostel. An incident took place wherein a student was murdered. After the said murder of the student, viz., Majhar Naim had taken place, large scale violence erupted in the University. On account of the said murder violent incident took place at the residence of Vice Chancellor, wherein fire was also put; and on other part of the University also causing loss to the University. F.I.R. of the aforesaid incident was lodged. The Petitioner along with others was placed under suspension and thereafter show cause notice was issued to the Petitioner as to why disciplinary proceedings be not undertaken against him. To the said show cause notice reply was submitted by the Petitioner on 19.10.2007, Petitioner faced disciplinary committee, and thereafter order of debarment was passed. The Petitioner preferred appeal on 11.02.2008, and while the said appeal had been pending, the Petitioner had rushed to this Court, and in between the appeal in question has been decided by the Executive Council. Thereafter, by means of Amendment Application, the order passed by the appellate forum has also been challenged. Petitioner''s submission is that action taken against him is arbitrary, unreasonable and not at all supported by any material available on record, and same is in utter contravention and violation of natural justice.
2. Counter and rejoinder affidavits have been exchanged, and thereafter present writ petition has been taken up for final hearing and disposal with the consent of the parties.
3. Sri Ashok Khare, Senior Advocate, assisted by Sri J.P. Singh and Sri Fahim Ahmad, Advocates, contended with vehemence that in the present case action taken against the Petitioner was in utter violation of the principles of natural justice, as various materials have been relied upon even without furnishing copy of the same, as such entire action is in breach of the principles of natural justice. Further argument has been advanced that on account of participation of the Vice Chancellor in the meeting of the Executive Council, appellate order was bad, as the Vice Chancellor cannot be permitted to be the judge of his own cause, as such writ petition deserves to be allowed.
4. Countering the said submissions, Smt. Sunita Agrawal, learned Counsel representing the Aligarh Muslim University, on the other hand, contended that there had been material against the Petitioner and the said factual situation was even admitted by the Petitioner himself; in such a situation and in this background in the matter of internal discipline where such an incident had taken place, this Court should refuse to interfere. Coupled with this, it has also been stated that under the provisions of Aligarh Muslim University Act and the Statutes framed there under, the Vice Chancellor is duty bound to preside over the meeting wherein collective decision was to be taken and on the principles of doctrine of necessity, the plea of bias cannot be inferred. The Petitioner has miserably failed to substantiate that the material on which decision has been taken against him was insufficient, as such No. interference be made.
5. In the light of the arguments so advanced, relevant provisions, which cover the field of the controversy involved are being looked into. Under Statute 28, the Disciplinary Committee and the Grievance Committee has been constituted. Statutes 35 and 38 are being relevant are quoted below:
35. Maintenance of discipline among students of the University.
(1) All powers relating to discipline and disciplinary action in relation to students shall vest in the Vice Chancellor.
(2) The Vice Chancellor may delegate all or any of his powers as he deems proper to the Proctor and such other officers as he may specify in this behalf.
(3) Without prejudice to the generality of his powers relating to the maintenance of discipline and taking such action in the interest of maintaining discipline as may seem to him appropriate, the Vice Chancellor may, in exercise of his powers, by order, direct that any student or students be expelled, or rusticated, for a specified period, or be not admitted to a course or courses of Study in a College, Department or Institution of the University for a stated period or be punished with fine for an amount to be specified in the order, or debarred from taking a University or College or Departmental Examination or Examinations for one or more year, or that the results of the student or students concerned in the examination or examinations in which he or they have appeared be cancelled.
(4) The Principals of Colleges, Heads of Special Courses, Deans of Faculties and Chairmen of Teaching Departments in the University shall have the authority to exercise all such disciplinary powers over the students in their respective Colleges, Special Centers, Institutions, Faculties and Teaching Departments in the University as may be necessary for the proper conduct of the Institutions, Special Courses and teaching in the concerned Departments.
(5) Without prejudice to the powers of the Vice Chancellor and the Proctor as aforesaid, detailed rules of discipline and proper conduct shall be framed by the University. The Principals of Colleges, Heads of Special Centers, Deans of Faculties and Chairmen of Teaching Departments in the University may frame such supplementary rules, as they deem necessary for the aforesaid purpose. Every student shall be supplied with a copy of rules so made.
(6) At the time of admission, every student shall be required to sign a declaration to the effect that he submits himself to the disciplinary jurisdiction of the Vice Chancellor and the other authorities of the University.
38. Acting Chairman of meetings.-Where No. provision is made for a President or Chairman to preside over a meeting of an authority of the University or any committee of such authority or when the President or Chairman so provided for is absent, the members present shall elect one from among themselves to preside at such meeting.
6. Statute 35 of the Statutes of the University provides a provision for the maintenance of discipline amongst the students of the University. Statute 35(1) gives all powers relating to discipline and disciplinary action to the Vice Chancellor. Statute 35 (2) provides that the Vice Chancellor could delegate any or all of his powers to any such officers as he may specify on his behalf. Statute 35 (5) provides framing of the Rules relating to discipline and proper conduct. Based on this provision, the Aligarh Muslim University Students'' Conduct and Discipline Rules, 1985 has been framed which has been approved by the Academic Council. Rule 4(i), (ii), (iii), (iv) and (vii) under which the Petitioner has been expelled are quoted herein for ready reference:
Acts of Indiscipline and Misconduct:
Any act of misconduct committed by a student inside or outside the campus shall be an act of violation of discipline of the University.
Without prejudice to the generality of the foregoing provision, violations of the discipline shall include:
(I) Disruption of teaching, student examination, research or administrative work, curricular or extra-curricular activity or residential life of the members of the University, including any attempt to prevent any member of the University or its staff from carrying on his or her work: and any act reasonable likely to cause such disruption.
(ii) Damaging or defacing University or any other property or the property of members of the University or any other property inside or outside the University campus.
(iii) Engaging in any attempt at wrongful confinement of teachers, offices, employees and students of the University or camping inside or creating nuisance inside the boundaries of houses of teachers, officers and other members of the University.
(iv) Use of abusive and derogatory slogans or intimidator language or incitement of hatred and violence or any act calculated to further the same.
(v)....
(vi)....
(vii) An assault upon, or intimidation of, or insulting behaviour towards a teacher, officer, employee or student or any other person.
7. The penalties are provided in Rule 7. Rule 9 of the Rules of 1985 provides that No. penalty with regard to expulsion and disqualification from further admission in the University could be imposed without giving the student a reasonable opportunity of being heard. Rule 7(xiii) and (xiv), as well as Rule 9 being relevant to the issue in question, are being quoted below:
(xiii) Expulsion from the University for a specified period.
(xiv) Disqualifying from further studies, or prohibition of further admission or re-admission.
Rule 9 of the Rules provides:
No penalty, provided in Clauses (x), (xi), (xii), (xiii) and (xiv) of Rule 7 shall be imposed without giving the students a reasonable opportunity of being heard.
8. Sections 36-A and 36-B of the Aligarh Muslim University Act provides an appeal before the Executive Council and the procedure for such an appeal. Said provisions being relevant are being extracted below:
36A. Procedure of appeal and arbitration in disciplinary cases against students.-(1) Any student or candidate for an examination whose name has been removed from the rolls of the University by the orders or resolution of the Vice Chancellor, Disciplinary Committee or Examination Committee, as the case may be, and who has been debarred from appearing at the examinations of the University for more than a year may, within ten days of the date of receipt of such order or copy of such resolution by him, appeal to the Executive Council and the Executive Council may confirm, modify or reverse the decision of the Vice Chancellor or the Committee, as the case may be.
(2) Any dispute arising out of any disciplinary action taken by the University against a student shall at the request of such student, be referred to a Tribunal of Arbitration and the provisions of Sub-section (2) of Section 36 shall, as far as may be, apply to the reference made under this Sub-section.
36B. Right to Appeal-Every employee or student of the University shall, notwithstanding anything contained in this Act, have a right to appeal, within such time as may be prescribed by the Statutes, to the Executive Council against the decision of any officer or authority of the University and thereupon the Executive Council may confirm, modify or reverse the decision appealed against.
9. Statutes 2 and 3, deal with the power and duties of the Vice Chancellor, as well as Statutes 16 and 17, which deal with the constitution as well as function of the Executive Council, are being quoted below:
2. The Vice Chancellor (1) The Vice Chancellor shall be appointed by the Visitor from a panel of at least three persons recommended by the Court from a panel of five persons recommended by the Executive Council:
Provided that if the Visitor does not approve of any of the persons recommended by the Court, he may call for fresh recommendations.
(2) omitted
(3) The Vice Chancellor shall be a whole time salaried officer of the University.
(4) The Vice Chancellor shall hold the office for a term of five years from the date on which he enters upon his office.
Provided that notwithstanding the expiry of the said period of five years, he shall continue in office until his successor is appointed and enters upon his office.
Provided further that the Visitor may direct that a Vice Chancellor, whose term of office has expired, shall continue in office for such period, not exceeding a total period of one year, as may be specified in the direction.
(5) Notwithstanding anything contained in Clause (4), a person appointed as Vice Chancellor shall, if he completes the age of sixty five years during the terms of his office or any extension thereof, retire from office.
(6) The emoluments and other terms and conditions of service of the Vice Chancellor shall be such as may be prescribed by the Ordinances.
(7) If the office of the Vice Chancellor becomes vacant due to his death, resignation or otherwise or if he is unable to perform his duties owing to his absence, illness or any other cause, the Pro-Vice Chancellor shall discharge the duties of the Vice Chancellor until a new Vice Chancel or the Vice Chancellor, as the case may be, assumes the office.
Provided that if the Pro-Vice Chancellor is not available, the senior most Dean among the members of the Executive Council in the category of Deans of the Faculties shall discharge the duties of the Vice Chancellor until a new Vice Chancel or the Vice Chancellor, as the case may be, assumes the office.
Provided further if the senior most Dean among the members of the Executive Council in the category of Deans of the Faculties is not available or he/she declines to accept the responsibility, the next available Dean, in order of seniority, among the members of the Executive Council in the category of Deans of the Faculties shall discharge the duties of the Vice Chancellor until a new Vice Chancel or the Vice Chancellor, as the case may be, assumes the office.
3. Powers and Duties of the Vice Chancellor (1) The Vice Chancellor shall be the Ex Officio Chairman of the Court, the Executive Council, the Academic Council and the Finance Committee and shall, in the absence of the Chancellor and the Pro-Chancellor, preside at the Convocation held for conferring degrees. He shall be entitled to be present at, and to address, any meeting of any authority or other body of the University, but shall not be entitled to vote there at unless he is a member of such authority or body.
(2) It shall be the duty of the Vice Chancellor to see that the Act, the Statutes, the Ordinances and the Regulations are duly observed, and he shall have all powers necessary to ensure such observance.
(3) The Vice Chancellor shall have the power to convene or cause to be convened meetings of the Court, the Executive Council, the Academic Council and the Finance Committee."
16. The Executive Council (1) The Executive Council shall consist of the following members namely:
(I) Vice Chancellor;
(II) Pro-Vice Chancellor;
(III) Honorary Treasurer;
(IV) Five Deans of Faculties by rotation according to seniority
(V) Two Principals of Colleges, other than the Principal of the Women''s College, by rotation according to seniority
(VI) Principal of Women''s College;
(VII) One Provost, by rotation according to seniority;
(VIII) Proctor;
(IX) Six Members of the Court, none of whom shall be an employee of the University, to be elected from amongst themselves;
(X) Two representatives of Professors and Readers to be elected from amongst themselves;
(XI) Two representatives of Lecturers to be elected from amongst themselves
(XII) Three persons to be nominated by the Visitor;
(XIII) One person to be nominated by the Chief Rector; Provided that No. employee of the University shall be eligible for nomination under items (xii) and (xiii);
(2) All the members of the Executive Council, other than ex officio members, shall hold the office for a term of three years.
(3) Fifteen members of the Executive Council shall form a quorum for a meeting of the Executive Council.
17. Powers and Functions of Executive Council:
(1) The Executive Council shall have the management and administration of the revenue and property of the University and the conduct of all administrative affairs of the University not otherwise provided for.
(2) Subject to the provisions of the Act, the Statutes and the Ordinances; the Executive Council shall, in addition to all other powers vested in it, have the following powers, namely:
(i) To appoint the Registrar, Finance Officer, Librarian, Principals of Colleges and Institutions established by the University and such Professors, Readers, Lecturers and other members of the teaching and academic staff as may be necessary, on the recommendation of the Selection Committee constituted for the purpose. Provided that No. action shall be taken by the Executive Council in respect of the number qualifications, emoluments and other conditions of service of teachers, without consideration of the recommendation of the Academic Council;
(ii) to appoint members of the Administrative staff;
(iii) to grant leave of absence to any officer of the University other than the Chancellor and the Vice Chancellor and to take the necessary arrangements for the discharge of the functions of such officers during his absence;
(iv) To regulate and enforce the discipline among members of the teaching, administrative and other staff of the University in accordance with these Statutes and the Ordinances;
(v) to manage and regulate the finance, accounts, investments, property, business and all other administrative affairs of the University, and for that purpose, to appoint such agents as it may think;
(vi) to invest any money belonging to the university, including any applied income in such stocks, funds, sharers, or securities as it shall, from time to time, think fit, or in the purchase of immovable property in India, with the like power of varying such investments from time to time;
(vii) To transfer or accept transfers of any movable or immovable property on behalf of the University;
(viii) To provide the buildings, premises, furniture and apparatus and other means needed for carrying on the work of the University;
(ix) To enter into, vary carry out and cancel contracts on behalf of the University;
(x) To entertain, adjudicate upon and, if thought fit, to redress any grievances of the officers of the University, the teaching staff, the students and the University''s servants, who may, for any reason, feel aggrieved;
(xi) to appoint examiners and moderators and, if necessary, to remove them and to fix their fees, emoluments and traveling and other allowances, after consulting the Academic Council;
(xii) To maintain a register of donors to the University.
(xiii) To select a common seal for the University and provide for the custody and use of such seal;
(xiv) to make such special arrangements as may be necessary for the residence and discipline of women students;
(xv) to delegate any of its powers to the Vice-Chancellor, Pro-Vice-Chancellor, the Registrar or the Finance Officer or such other employees or authority of the University or to a Committee appointed by it as it may deem fit.
(xvi) To institute fellowships, scholarships, studentships, medals and prizes on the recommendation of the Academic Council, and (xvii) to exercise such other powers and perform such other duties as may be conferred or imposed on it by the Act or the Statutes.
10. On the parameters of the provisions quoted above, to start with, that the Disciplinary Committee, while holding the Petitioner guilty of the misconduct, took into consideration, the previous conduct of the Petitioner and also took into consideration the intelligence report to which Petitioner submits that same could not have been taken into consideration as these facts and allegations were not part of the show cause notice nor such documents could have been relied upon without giving an opportunity of hearing to the Petitioner, and same has caused serious prejudice to the Petitioner, as such the recommendation of the Disciplinary Committee stood vitiated and, the order of the Vice Chancellor based on such recommendation, is also vitiated and accordingly, liable to be quashed, is being adverted to.
11. As entire emphasis is in respect of violation of principles of natural justice, the view point of Hon''ble Apex Court is being looked into. The principle of natural justice cannot be imprisoned within a straight jacket formula and its application is dependent upon several factors as held by the Apex Court in
12. The Apex Court in the case of
We may summarize the principles emerging from the above discussion. (These are by No. means intended to be exhaustive and are evolved keeping in mind in view of the context of disciplinary enquiries and Ors. of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/Regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with was explained herein before and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.
Except cases falling under ''no notice'', ''no opportunity, and ''no hearing'' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If No. prejudice is established to have resulted there from, it is obvious, No. interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/ government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/ employee asking for it. The prejudice is self-evident. No. proof of prejudice as such need be called for in such a case. To repeat, the test is on of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could not be waived by him, then the Court or the Tribunal should made appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/Regulations/statutory provisions and the only obligation is to observe the principles of natural justice-or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action-the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of Audi alter am partum) and violation of facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and No. adequate opportunity, i.e., between "no notice"/ "no hearing" and "no fair hearing" (a) in the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (Audi alter am partum). (b) But in the latter case, the effect of violation (of a facet of the rule of Audi ate ram partum) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (it is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)
(6) While applying the rule of Audi alter am partum (the primary principles of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is No. failure of justice. It is this objective which should guide them in applying the rule of varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audialteram partum. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.
13. In the aforesaid judgment the Apex Court has clarified that object of rules of principles of natural justice is to ensure that there has been No. failure of justice, and that the rules of principles of natural justice are not inflexible rules and mere technical violation of some of the rules of procedure prescribed will not amount to negation of justice. The Court is to keep in mind that the object of the rules is to ensure that there should not be failure of justice, and every violation of the rules of the procedure cannot vitiate the action taken, if in interest of State or public interest rules of procedure are required to be curtailed. The Court has to balance public/state interest with the requirement of principles of natural justice. It has been held that several procedural provisions governing disciplinary enquiry under the statutory provisions " are nothing but elaborations of the principles of natural justice and their several process". The ultimate test is " all proceedings taken together, whether the delinquent officer/employee did or did not have a fair hearing. The complaint of violations of principles of natural justice has to be examined from view point of substantial compliance, as the overriding objective underlying the rules is to ensure a fair hearing and to ensure that there is No. failure of justice. The rule of Audi alter am partum, namely, that No. one should be condemned unheard is required to be followed i. e. to hear the other side, on the said principle, reasonable opportunity of hearing has been provided for under Rule 9 of 1985 Rules, and what would be the reasonable opportunity, would depend on the peculiar facts and circumstances of the case.
14. A bare perusal of the provisions already quoted above would go to show that penalty provided in Clauses (xiii) and (xiv) Rule 7 can be imposed after giving of reasonable opportunity of being heard and after the aforesaid penalty has been imposed, remedy of Appeal has been provided for before the Executive Council.
15. The facts of the present case are being adverted to, to examine as to whether the principles of natural justice have been violated or not in the present case, and if violated, as to whether in the facts of case, any prejudice has been caused to Petitioner. The Statute in question talks for reasonable opportunity and what would be the reasonable opportunity has to be determined as per facts of each case. In the present case factual situation which so emerges is to the effect that on 16/17.10.2007 at about 11.00 P.M. an unlawful assembly along with several hundred students including outside ruffians reached at JNMC Casualty as soon as the news regarding assassination of a student broke/spread on the University Campus. Subsequent to the same a large group of students barged into the Chamber of Chief Medical Officer, wherein the Vice Chancellor, Proctor, Senior Superintendent of Police, Aligarh and other Senior Officers of the District Administration were sitting. The mob at the said point of time became unruly and highly surcharged, and at the said point of time attempt was made to assault the Vice Chancellor, however, he managed to escape there from. Said group of students instigating the mob of the students proceeded towards the Vice Chancellor''s Lodge, large scale row dyism was there. Residence of the Vice Chancellor was ransacked and by pouring inflammable substance, the Lodge was put on fire. While the Lodge was burning, the group of students came to the Proctor''s office and his office was also ransacked, loss was also caused to the fixtures and fittings of the club. Petitioner''s complicity was also there, as such as per the provisions of Students'' Conduct and Discipline Rules, 1985, the Petitioner was placed under suspension, and further orders were issued for keeping the University Campus out of his reach. The Petitioner was issued show cause notice dated 24.09.2007 and was asked to submit his reply. The Petitioner submitted his reply on 19.10.2007, and thereafter, the Disciplinary Committee held its meeting on 09.12.2007 and while proceeding to enquire into the matter also afforded opportunity of personal hearing to the Petitioner, concluded that there was complicity of the Petitioner, and this fact had been substantiated by the Petitioner''s own statement. Apart from finding the complicity of the Petitioner in the aforementioned incident, reference was also given that he was mastermind of a group of ruffians who in the recent past indulged in a number of violence in the University Campus, and thus, he had leading role in the incident in question.
16. The facts and circumstances clearly reflect that in the matter of internal discipline vis-a-vis the charges in question one has to be given reasonable opportunity and here in the present case, the Petitioner had been given proper show cause notice, to which he submitted reply. Coupled with this, the Petitioner was required to defend the charges by making oral deposition and give further evidence to prove his innocence. The Petitioner explained his position, said explanation has been considered, and it has been found that in fact, his participation was there in the incident in question. Petitioner had initially denied his presence altogether on the spot at Bap. E. Sayeed, but subsequent to the same he has admitted it, and has also admitted his presence at the Lodge of Vice Chancellor, and pretended to be there to be extinguishing fire. To counter the contents of report relied upon by the University, Petitioner has been contending that he was not at all present at 3 A.M. near Bap E Sayeed along with mob of 30-40 students; Petitioner was also contending that at 4 P.M. he was not present at the Vice Chancellor''s Lodge. Petitioner has been thus confronted with the contents of said report, which he has initially refused to accept, but on being cornered with facts, has accepted his presence on the spot. In the memo of appeal before the Executive Council, Petitioner has nowhere stated that his admission was not there and even in the body of writ petition, No. such challenge has been there, qua his admission before the Disciplinary Committee. Seeing the magnitude of the incident in question which had disturbed the entire campus of the University and evidence had come on record vis-a-vis complicity of the Petitioner, then even in case some other material has been relied upon in respect of his complicity on earlier occasion, same will not vitiate the decision on the ground of non observance of the principles of natural justice, as ultimate finding of guilt has been recorded, that he had leading role to play in the incident which occurred at the Lodge of the Vice Chancellor. In the facts of the present case, opinion which has been formed by the Disciplinary Committee that the Petitioner had committed acts of indiscipline and misconduct as provided under part II Rule 4 (I) (ii) (iii) (iv) and (vii) of the Aligarh Muslim University Students Conduct and Discipline Rules, 1985 is not at all without any foundation and basis. The materials qua which the Petitioner has been contending that No. opportunity had been given, said material is in fact additional factor to form opinion against the Petitioner, but as far as main charge against the Petitioner has been of his active participation in the incident which had taken place in the University Campus at the residence of the Vice Chancellor and Bap.E.Sayeed, on the said score full opportunity had been provided to the Petitioner by providing him opportunity to file his reply and also defending the charges by making oral deposition and give further evidence. This is not at all the case of the Petitioner that he had been denied oral deposition and to produce evidence to prove his innocence, and that he had not been confronted with the report and subsequent to the same, he accepted his presence before Disciplinary Committee. The finding returned by the Disciplinary Committee clearly reflects that the Petitioner was present on the spot as is evident from his own statement. Once such is the factual scenario that the incident in respect of which the Petitioner has been charged, there had been material to prove the Petitioner guilty of the aforementioned charges, then even if there was some other material, which has been relied upon, same would not vitiate the decision. Once on main issue, Petitioner has been found guilty of indiscipline, then the other materials which have also been relied upon, it may be true that the same violates the principles of natural justice, but in the matter of internal discipline, once it is writ apparent that the Petitioner''s complicity had been there in the incident in question, and qua the said charge full opportunity had been provided, then on the ground of violation of principles of natural justice, this Court cannot come to the rescue of the Petitioner.
17. In the matters of discipline, the Apex Court has repeatedly held that the Court should be slow in interference and should leave it open to the University authorities and should not substitute its finding with the findings given by the expert bodies. In
We have given our careful consideration to the above submissions. One thing must be put beyond doubt, in matters of enforcement of discipline this Court must be very slow in interference. After all, the authorities in charge of education whose duty it is to conduct examination, fairly and properly, know best how to deal with situations of this character. One cannot import fine principles of law and weigh the same in golden scales. In the present system of education, the system of examinations is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by court in every case may lead to unhappy results making the system of examination a farce.
18. Similar view was again reiterated by the Apex Court in
In the matters concerning campus discipline of educational institutions and conduct of examinations the duty is primarily vested in the authorities in charge of the institutions. In such matters the court should not try to substitute its own views in place of the authorities concerned nor thrust its view on them. That is not to say that the court cannot at all interfere with the decisions of the authorities in such matters. The court has undoubtedly the power to intervene to correct any error in complying with the provisions of the rules, Regulations or notification and to remedy any manifest injustice being perpetrated on the candidates.
19. The Apex Court has held that in the matter of campus discipline of educational institutions, the duty is primarily vested with the authorities in charge of the institution and the Court should not substitute its view or thrust its view upon the authorities. As far back in the year 1965 a Constitution Bench of the Apex Court in The
There is No. allegation about malafides against the experts who constituted the present Board; and so, we think, it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be.
20. Judgment in the case of Mohd. Arif Naim has proceeded on the premises that the statement of Mr. Nizamuddin had been taken behind the back of the Petitioner, and the same had been made foundation and basis for inducting him. Secret reports had prejudiced his defence, then this Court had proceeded to form opinion that the principles of natural justice had been violated in the said case and this point of view was examined by the Court. In the said case as the material available had not been examined, as such the said judgment will not come to rescue of the Petitioner. Here admission of Petitioner has been noted and therefore, opinion has been formed by Disciplinary Committee and said factual situation has not been disputed. Once finding of guilt is there, based on material in support of the same, then there is No. occasion for this Court to take different view of the matter.
21. The next issue, which is sought to be considered is as to whether on account of participation of the Vice Chancellor as Chairman of the Executive Council on account of there being bias, the appeal should be treated as illusory. Under Statute 3 of the Statues of the University, the Vice Chancellor is required to preside over the meeting of the Executive Council as its Chairman. Said provision gives statutory mandate in favour of the Vice Chancellor to preside over as Chairman of the Executive Council. Statute 2 of the Statutes deals with the Vice Chancellor and State 2 (7) proceeds to mention that if the office of the Vice Chancellor becomes vacant due to his death, resignation or otherwise or if he is unable to perform his duties owing to his absence, illness or any other cause, the Pro-Vice Chancellor shall discharge the duties of the Vice Chancellor until a new Vice Chancellor the Vice Chancellor, as the case may be, assumes the office. It also provides that if the Pro-Vice Chancellor is not available, the senior most Dean among the members of the Executive Council in the category of Deans of the Faculties shall discharge the duties of the Vice Chancellor until a new Vice Chancel or the Vice Chancellor, as the case may be, assumes the office. Said power in question can be exercised by the Pro-Vice Chancellor or the senior most Dean among the members of the Executive Council in the category of Deans of the Faculties only if the office of the Vice Chancellor is vacant on account of his death, resignation or otherwise or if he is unable to perform his duties owing to his absence, illness or any other cause. The meeting of the Executive Council is to take place on quorum of fifteen members and the Executive Council has been constituted as per Statute 16. Statute 38 also provides that where No. provision is made for a President or Chairman to preside over a meeting of an authority of the University or any committee of such authority or when the President or Chairman so provided for is absent, the members present shall elect one from among themselves to preside at such meeting.
22. In the present case once appeal was preferred before the Executive Council, which is a statutory body and the said statutory body was to be chaired by the Vice Chancellor, then at the said point of time the Vice Chancellor was the best person to decide as to whether he should participate in the meeting or not, but once the Vice Chancellor in his wisdom has chosen to preside over in the meeting in discharge of his official duties, as under the provisions of the Aligarh Muslim University Act, in presence of the Vice Chancellor No. one could have chaired the meeting of the Executive Council, then can it be said that the Vice Chancellor has erred in participating in the meeting of the Executive Council, specially when the matter was pertaining to internal discipline. In the presence of Vice Chancellor, No. one could have chaired the meeting, as this particular authority could not have been delegated, as Statute 35 (2) empowers the Vice Chancellor to delegate all the powers, which he possesses under Statute 35 (1) of the Statutes, i.e. all powers in relation to discipline and disciplinary action in relation to students, and nothing beyond the same.
23. Executive Council is collective body, wherein meeting has to be chaired by Vice Chancellor and in his absence, by majority decision, some one else could also chair. Executive Council takes its decision by resolution and apart from student''s discipline, various others matters are to be dealt with, as is fully reflected from the perusal of statute 17. Repeatedly, Hon''ble Apex Court has been taking the view that in group deliberation, element of bias, if it is there, has to be examined, and further No. one should be permitted to be judge of his own action. See
Under Statute 3 of the Statutes, the Vice Chancellor is required to preside as Chairman of the Executive Council. This is a statutory mandate, and therefore, the presence of the Vice Chancellor in the meeting does not vitiate the resolution. However, fair play demanded that the second limb of the principle of natural justice should have been observed, namely, the "nemo judex in causa sua" or "nemo debet esse judex in propi1a causa sua" that is, No. man shall be a judge in his own cause. When the order of the Vice Chancellor was being considered by the Executive Council, proprietary demanded that the Vice Chancellor should have abstained from deliberation and should have abstained from voting, but, by not doing so, the order of the appellate authority does not become illegal for the reasons that the resolution of the Executive Council was passed unanimously. The vote of the Vice Chancellor would not make a difference. It would have been a different matter if the vote of the Vice Chancellor would have swayed the result of the decision of the Executive Council. Consequently, the submission of the learned Counsel for the Petitioner on this aspect is rejected.
24. In the present case, the Vice Chancellor is the custodian of the internal discipline and in discharge of his official duty as chairman has chaired the meeting, but in effect he has chosen to judge the validity of his own decision, then in the facts of the case, element of bias cannot be ruled out, as test is not whether bias has effected the resolution, the test is whether the applicant could reasonably apprehend, bias attributable might have operated against him.
25. In such a situation and in this background, as this Court has already come to the conclusion, that charges of internal discipline have been found substantiated, as such this Court is not setting aside the order of the Executive Council, as it would be exercise in futility. However, this Court has proceeded to take note of the fact that there are students whose complicity had also been found in similar incidents, namely Syed Ehteshamul Haque, qua him this Court in writ petition No. 2069 of 2008 has proceeded to modify the order of punishment imposed upon him by reducing the period of penalty awarded, and therein it has been mentioned that it should not be treated as precedent. Similarly, in other case of Mohd. Arif Naim, qua him orders have been passed for quashing of proceeding on the ground of violation of principles of natural justice. It has been informed that both the students are pursuing their studies with an undertaking to maintain internal discipline. As the matter pertains to internal discipline, and as two students have been permitted to pursue their courses, liberty is given to the Petitioner to approach the Vice Chancellor, and in case any such claim is set up, the same may be re-examined by the Executive Council whether in the facts of the case similar decision can be taken or not, keeping in view the subsequent behaviour f the Petitioner, since considerable period under the order of punishment has already elapsed, preferably within next two months.
26. Writ petition stands disposed of accordingly.
