Ghanashyam Misra Vs Orissa Association of Sanskrit Learning and Culture

G.K. Misra, C.J.@mdashThe petitioner is the Principal of Gopabandhu Ayurvedic College at Puri. The Orissa Association of Sanskrit learning and Culture represented by its Secretary, is the opposite party. The opposite party was constituted by Resolution No. 2835-E of the Government of Orissa in the Education Department, on 7-10-1939. One of its functions is to conduct examinations for testing candidates for different diplomas in Sanskrit. The petitioner was a candidate for the second part of the Sahityacharya Examination of 1864 and was assigned Roll No. 14. In the second paper Sri Jagannath Mohapatra Sharma had been appointed as the Examiner. Sri Braja Mohan Padhy Assistant Secretary of the opposite party, sent information on 10-7-1964 to the Superintendent of the Centre that, on 9-7-1964, the petitioner went to the former''s residence and induced him to attach some fresh sheets of written papers inside the petitioner''s answer book and that as a result of such pressure Sri Braja Mohan Padhy permitted additional sheets of papers to be kept inside the petitioner''s answer book. Sri Raghunath Misra, M. L. A., who is a Member of the Orissa Council of Sanskrit Learning and Culture was appointed the Enquiry Officer, to enquire into the matter. He examined Sri Padhy Sri Jagannath Mohapatra Sharma, and Sri Ladukeswar Satapathy, Secretary of the opposite party, and also the petitioner. Written explanations were taken from those persons.

The Enquiry Officer submitted a detailed report to the opposite party on 2-9-1964 wherein he held that the petitioner had no responsibility for introducing the additional sheets of papers into" the answer book and that some interested persons brought about the mischief. He further held that Braja Mohan Padhy was incompetent to be in charge of examinations. On 20-4-1965 the petitioner received notice from the opposite party asking him to show cause as to why he introduced 4 sheets of additional papers in the answer book. The petitioner showed cause on 1-5-1965 and denied the charge that he adopted unfair means. The petitioner asked for a copy of the report of the Enquiry Officer and other papers and documents which the enquiry officer had collected from various sources in order to present a fuller explanation. He also indicated therein that after those documents were received by him he would give a detailed explanation and prayed for an adequate opportunity to disprove the allegations made against him. The documents asked for were not supplied, nor was any opportunity given to him to cross-examine the witnesses examined by opposite party and to adduce evidence in his defence. On 24-5-1965 the petitioner was intimated by Annexure ''D'' that the result of the Examination held in 1964 was cancelled and that he would not be permitted to sit at any examination before 1967. This order was passed in pursuance of the decision taken by Opposite Party by Resolution 15-2-1965.

The petitioner''s case is that Kaviraj Sri Ananta Tripathy Sharma who is a member of the Orissa Association of Sanskrit Learning and Culture bore personal animosity towards him and the entire manoeuvre was done at his instance. This writ application has been filed under Articles 226 and 227 of the Constitution for a writ of certiorari to quash the impugned Resolution, communicated to the petitioner on 24-5-1965 and for issuing a writ of mandamus directing the opposite party to publish the result of the examination held in 1964.

2. A counter has been filed on behalf of the opposite party by its Secretary Sri Ladukeswar Satapathy who is a Government servant of Sanskrit Studies. The allegation of mala fides made against Sri Ananta Tripathy Sharma is disputed. Most of the other facts in the writ petition are not challenged. In paragraphs 8 and 9 the factual position has been clarified. It appears that Sri Ananta Tripathy Sharma received an anonymous application that malpractice had been resorted to in the examination. A resolution was accordingly passed that all the examination papers should be re-examined to see if any unfair means had been adopted. In pursuance of the said resolution the Board of Studies in Sahitya consisting of Sri Jagannath Rath, Sri Basudev Misra and Sri Pundarikaksha Misra examined from 6-7-1964 to 10-7-1964 all the papers concerning the subject. During their examination they found that one of the petitioner''s answer books contained 4 pages in the middle which were not supplied by the Council. The colour of these middle papers did not tally with that of the outer papers. The manner of writing in the middle pages of the answer book was superior to the manner of writing on the outer pages. The answer papers were stitched with cotton threads instead of a wire with which all the answer books supplied by the Sanskrit Council were stitched.

From 6-7-1964 to 9-7-1964 while they were about to write out their report regarding their suspicion about adoption of unfair means, they discovered that somebody had removed the middlesheets consisting of four pages and had substituted a new sheet with 4 pages inside the answer book with a view to show that the colour of the outer papers and the middle papers tallied. The matter was acquired from Sri Braja Mohan Padhy who was in custody of the answer books. Sri Padhy admitted that at the request of the petitioner he had removed the sheet of paper consisting of 4 pages and had inserted a new sheet of paper with 4 pages written by the petitioner on the previous night. Sri Padhy gave statement in writing to that effect. During the enquiry by Sri Raghunath Misra Sri Padhy, however, made a different statement. After the report of the Enquiry Officer was received the matter was placed before the Sanskrit Council who came to an independent conclusion that some outside papers had been inserted into the answer book. The petitioner furnished his explanation on 25-3-1965 and the Sanskrit Council, after considering the same, refused the prayer of the petitioner for supply of documents and for personal hearing.

3. As has already been stated, most of the facts are admitted. There is no controversy that neither the Enquiry Officer nor the Sanskrit Council gave any opportunity to the petitioner to cross-examine the witnesses examined on behalf of the council. The petitioner was not supplied with their statements or with a copy of the report of the Enquiry Officer. No personal hearing was also given.

4. On these facts Mr. Patnaik contended that the principle of natural justice was violated and the resolution of the Council in not publishing the result of the examination and debarring the petitioner from appearing at the same examination till 1967 is liable to be quashed. The learned Government Advocate, on the other hand, contended that the writ application for issue of certiorari or mandamus is not maintainable as the opposite party is not a statutory body.

Both the contentions require careful examination.

5. There can hardly be any controversy that the principle of natural justice would vary according to the facts and circumstances of each case. One thing however is certain and that is that the charge, must be framed indicating the allegations against the delinquent, the materials on which the allegations are based must be furnished, the delinquent must be given an opportunity to show cause against the charge, documents and oral evidence in support of the charge must be examined in the presence of the delinquent who should also be, given the opportunity to contest the same y cross-examination. The delinquent would be entitled to give evidence in support of his defence, and then the entire matter should be disposed of after giving him a personal hearing.

With regard to Universities and educational institution the matter is covered by Supreme Court decisions. In AIR 1966 SC 875, Board of High School and Intermediate Education v. Bagleswar Prasad, their Lord ships laid down that the principle of natural justice must be followed scrupulously, though it would not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary courts of law. It was pointed out that in the matter of adoption or unfair means direct evidence may not sometimes be available. Even in such cases the question is to be considered in the light of probabilities and the circumstantial evidence. Educational institutions have to face serious problems from time to time. Courts would be slow to interfere with the decision of such domestic tribunals unless there is good reason for doing so. Under Article 226 the High Court does not sit in appeal over the decision of the domestic tribunal. Its jurisdiction is limited. If the impugned order is not supported by any evidence at all the High Court will have jurisdiction to quash the order. But the conclusion whether the impugned order is sup ported by evidence or not will be reached, after looking into the broad probabilities and circumstances. This, in substance, indicates the ambit and amplitude of the jurisdiction of the High Court in interfering under Article 226.

In Suresh Koshy George Vs. University of Kerala and Others, misconduct of a student at an examination came up for consideration. Their Lordships followed The Board of High School and Intermediate Education U.P. Vs. Bagleshwar Prasad and Others, . It was made clear therein that a second show cause notice was not essential without a rule to that effect as required under Article 311 of the Constitution and even if in certain cases the rules provide for a second show cause notice, it does not follow therefrom that a copy of the report on the basis of which the show cause notice was issued should be made available to the delinquent. In other words the principle of natural justice in such cases is not wholly analogous to that prescribed under Article 311 of the Constitution.

6. Applying the aforesaid tests there can be hardly any doubt that the principle of natural justice has been violated in this case. The petitioner could not have been condemned without being given a full opportunity of knowing the materials against him and challenging the same by cross-examination. It is admitted in the counter-affidavit that despite his request documents were not made available to him and he was not given a personal hearing. The petitioner was not even asked to cross-examine Sri Braja Padhy who admitted having introduced some papers in the answer books and substituting some other papers.

7. We may now examine the preliminary objection that a writ application would not lie where the opposite party is not a statutory Authority. The matter seems to be concluded by The Board of High School and Intermediate Education U.P. Vs. Bagleshwar Prasad and Others, . In paragraph 4 their Lordships observed this:--

"It is common ground that the proceedings taken against the respondent in respect of unfair means alleged to have been adopted by him at the examination are in the nature of quasi judicial proceedings and as such in a proper case orders passed as a result of such proceedings would be liable to be challenged under Article 226 of the Constitution."

In the present case the proceeding in which the impugned order was passed was quasi-judicial in nature. The impugned order can therefore be quashed provided it is based on no evidence or is not in conformity with the principles of natural justice. In 35 1969 CLT 1140 (Bijov Kumar Singh v. Project Administrator, Industrial Development Corporation Orissa) it was indicated, following The Praga Tools Corporation Vs. Shri C.A. Imanual and Others, that a mandamus lies to secure performance of a public duty, in the performance of which the one who applies for it has sufficient legal interest. In this case, the petitioner has sufficient legal interest in the performance of a duty by the opposite party, and the duty which was to be performed by the opposite party is clearly public in nature. The opposite party is the creature of a Resolution passed by the Government, authorising it to hold examinations and publish results. That is clearly a public duty, though not statutory. A writ of mandamus would therefore lie against the opposite party.

8. Reliance was placed by the learned Government Advocate on Barada Kanta Adhikary Vs. The State of West Bengal and Others, and D.G. of Health Services and Others Vs. Bikash Chatterjee and Others, .

In D.G. of Health Services and Others Vs. Bikash Chatterjee and Others, the prayer for writ was against the Council of Scientific and Industrial Research. That decision has no application here. That was a case under Article 311 of the Constitution where the requirement is that the incumbent must be a member of the Civil Services of the Union or an All India Service or the Civil Service of a State, or must hold a civil post under the Union or a State. Clearly a person working under the Council of Scientific and Industrial Research does not "hold a civil post" either under the Union or a State.

Barada Kanta Adhikary Vs. The State of West Bengal and Others, is also similarly distinguishable.

9. On the aforesaid analysis we overrule the preliminary objection.

10. On our finding that the principle of natural justice has been violated the writ petition must succeed. A writ of certiorari be accordingly issued quashing the impugned order.

11. It will be open to the opposite party to continue the proceedings against the petitioner, from the stage it was contrary to law in the light of the observations made in this judgment and in accordance with law. The proceedings should be disposed of within three months from today. If, however, the opposite party chooses not to continue the proceeding for any reason, it is directed to publish the result of these petitioner''s examination held in 1964 without delay. A writ of mandamus be issued accordingly.

12. The writ application is allowed, but in the circumstances there will be no order as to costs.

S.K. Ray, J.

13. I agree.