Question before this Court is, whether in present facts, it can
be said that proper opportunity was given to petitioner to explain alleged
malpractice or other allegations against her. Letter sent for hearing is
dated 21.6.1988 and it is not addressed to anybody in particular. At its
bottom, name of College is mentioned. On page appended thereto, at sr.
no. 16 name of petitioner with her roll number and name of her college
i.e. Siddhartha Adhyapak Vidyalaya appear. Petitioner in her petition has
stated that Principal of her college had taken her to the office of
respondent no. 1 where she was questioned generally. Respondent no. 1
appears to have passed order of punishment on 22.7.1988. This order of
punishment is forwarded to Siddharth Adhyapak Vidyalaya only.
Forwarding letter does not mention any misconduct, but it only mentions
the fact of grant of hearing and imposition of punishment. This letter,
therefore, does not give a specific malpractice committed either by
petitioner or any other student or any reasons, but the chart which
contains names of 347 students is enclosed with it. Last column of said
chart stipulates punishment inflicted. Therefore, again a particular
misconduct or malpractice is not apparent from this document.
Commission of or indulgence in malpractice or use of unfair
means has got grave consequences. Course of action against a student for
such malpractice is required to be determined after extending
opportunity to the student. Student should, therefore, be informed of the
allegations against him or her and then should be given opportunity to
explain the same. Material to be used must also be shown to the student.
Here, chit was allegedly found on the floor near chair of petitioner in
examination hall, and she declined any connection with that chit and was
permitted to sit in hall and complete the answer paper. There is nothing
on record to show that said chit was again shown to her and her reply
was not obtained in writing when she remained present before
respondent no. 1 Board on the date of hearing. If she had given any oral
explanation, that explanation does not find any mention in the impugned
order. Annexure R1 is notice of hearing dated 21.6.1988 which calls
about 31 students for hearing on 7.7.1988 at 11.00 am. Therefore, it is
apparent that proper and effective opportunity of hearing was not given
to the petitioner. The order of punishment imposing the punishment on
about 347 students does not show that these 347 students were heard
on different dates. The order imposing punishment needed to be a
reasoned order showing application of mind and pointing out why
defence was not accepted.
In this situation, material on record is insufficient to hold that
petitioner was given proper and effective opportunity before debarring
her. Even allegations against her were not communicated in writing and
her answer was not obtained in writing. The order of punishment is thus unsustainable.
Petitioner was admitted in 2nd year in very same college and
her absorption in the Government D. Ed. College was in December 1988.
In this situation, it is clear that petitioner cannot be blamed in any way
and it cannot be said that she played any mischief by appearing in the
examination. If there was any order of punishment, respondent no. 1
would have very well prohibited her from appearing in next examination.
Why respondent no. 1 could not do so, is not apparent. Moreover, if on
the basis of such appearance, an action was to be taken after several
years of passing of punishment order, again a show cause notice and grant
of opportunity was necessary. No opportunity is given to petitioner before
withdrawing her diploma in present matter. Therefore, also impugned
order dated 6.10.1997 is unsustainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Writ Petition No. 3743 of 1997
Ku Kalpana d/o Yashwantrao Khedikar (Now Sau
Petitioner Kalpana Kishore Bhandarkar),
versus
The Director, Maharashtra State Examination
Coram : B. P. Dharmadhikari And Bora, JJ
Dated : 30th October 2014
Citation; 2015(3) MHLJ 257
Heard learned counsel for the parties. Order passed by
respondent no. 1 withdrawing Diploma in Education given to petitioner,
has been questioned in present writ petition. This Court issued notice on
24th December 1997 and granted adinterim relief staying that order dated
6th October 1997. While admitting the matter, after hearing all
concerned, adinterim relief was confirmed.
2.
Learned counsel for petitioner submits that petitioner
appeared for 1st Year D. Ed. Examination in April 1988 in all subjects.
When she was attempting subject of Marathi language, she was
questioned alleging recovery of a piece of paper from floor near her
chair in the examination hall. Petitioner replied then that it was not
belonging to her. She was, therefore, permitted to solve the question
paper. Thereafter, Principal of her college took her to the office of
respondent no. 1 where she was orally asked about the very same chit
found near her chair. She again orally explained everything. No order
came to be passed, but when she received marksheet, against Marathi
3.
subject, no marks were allotted.
Petitioner was given admission in 2nd year of Diploma In
Education. The said college viz. Siddhartha Adhyapak Vidyalaya was
thereafter closed down and all students including petitioner were
absorbed in the Government D. Ed. College. Petitioner then appeared for
2nd Year Examination along with subject of Marathi of 1st Year as also
subject of Child Education etc. of 1st Year. Marksheet was then issued to
her in April 1989 which revealed that she cleared all subjects of 1st Year,
but could not clear a subject of 2nd Year. She was declared as failed. Back
subject was cleared by her subsequently in October 1989 examination
when she was declared to have passed the examination. Accordingly,
Diploma in Education was issued to her on 20th February 1990. Petitioner
joined employment and started working.
4.
Some dispute arose about grant of approval to petitioner’s
service and respondent no.1 issued communication dated 6 th October
1997 to the Education Officer (Secondary), Zilla Parishad, Bhandara
pointing out that for adopting unfair means in April 1988 examination,
her performance in entire examination was cancelled and she was
debarred from appearing in October 1988 and April 1989 examinations. It
was further pointed out that suppressing this punishment and taking
advantage of automatic absorption in the Government D. Ed. College,
petitioner managed to appear for October 1988 and April 1989
examinations. Respondent no. 1 directed the Education Officer to cancel
Diploma in Education of petitioner on these grounds.
Mr Jibhkate, learned counsel for petitioner submits that if
5.
performance of petitioner in April 1988 was to be cancelled, a proper
showcause notice should have been issued and an opportunity to explain
ought to have been extended to petitioner. Petitioner did not receive any
such showcause notice and it is her Principal who carried her to the
Office of respondent no. 1 where also the exact nature of misconduct was
not explained to her and no opportunity to file any reply was given. Upon
questioning orally, petitioner also gave her explanation and there was no
statement recorded. He contends that in this situation had order of
punishment debarring her from two examinations been served on
petitioner, she would have immediately approached this Court. He
submits that if her performance was cancelled, there was no question of
issuing her a marksheet of 1st year examination. Marksheet was issued
to her which did not carry any marks for Marathi subject and, therefore,
petitioner legitimately felt that she had to appear for that subject again.
Accordingly, she appeared and ultimately succeeded. He contends that in
this situation, action taken after more than eight years is not only in
conflict with the principles of natural justice, but also bad. He, therefore,
6.
prayed for allowing the petition.
Learned counsel appearing for respondent no. 2 submits that
office of respondent no. 2 did not receive any punishment order and,
therefore, there was no question of respondent no. 2 either
communicating or not communicating the same to the petitioner.
taken.
We have perused submissions filed by respondent no. 1 on
8.
Respondent no. 1 relies on material on record to substantiate the action
affidavit before this Court to oppose admission of writ petition. The
submissions have been filed on 23.2.1998 and affidavit in support is
sworn by P M. Panke, Education Officer (Secondary), Zilla Parishad,
.
Bhandara. Perusal of said reply affidavit shows that after alleged mal
practice, petitioner was called upon vide communication dated 21.6.1988
to remain present before the Commissioner, Government Examination
Board, Pune on 7.7.1988. This communication dated 21.6.1988 was sent
to petitioner’s college and its copy is produced with said reply as
Annexure R1. It is further stated that the case of petitioner was
scrutinised by said respondent and an order of punishment was passed.
Order of punishment is produced with reply as Annexure R2. At
Annexure R2 there are about 347 students belonging to various colleges
against whom respondent no. 1 has taken action. Name of petitioner
figures at Sr. No. 298 in this list.
9.
Question before this Court is, whether in present facts, it can
be said that proper opportunity was given to petitioner to explain alleged
malpractice or other allegations against her. Letter sent for hearing is
dated 21.6.1988 and it is not addressed to anybody in particular. At its
bottom, name of College is mentioned. On page appended thereto, at sr.
no. 16 name of petitioner with her roll number and name of her college
i.e. Siddhartha Adhyapak Vidyalaya appear. Petitioner in her petition has
stated that Principal of her college had taken her to the office of
respondent no. 1 where she was questioned generally. Respondent no. 1
appears to have passed order of punishment on 22.7.1988. This order of
punishment is forwarded to Siddharth Adhyapak Vidyalaya only.
Forwarding letter does not mention any misconduct, but it only mentions
the fact of grant of hearing and imposition of punishment. This letter,
therefore, does not give a specific malpractice committed either by
petitioner or any other student or any reasons, but the chart which
contains names of 347 students is enclosed with it. Last column of said
chart stipulates punishment inflicted. Therefore, again a particular
misconduct or malpractice is not apparent from this document.
Commission of or indulgence in malpractice or use of unfair
10.
means has got grave consequences. Course of action against a student for
such malpractice is required to be determined after extending
opportunity to the student. Student should, therefore, be informed of the
allegations against him or her and then should be given opportunity to
explain the same. Material to be used must also be shown to the student.
Here, chit was allegedly found on the floor near chair of petitioner in
examination hall, and she declined any connection with that chit and was
permitted to sit in hall and complete the answer paper. There is nothing
on record to show that said chit was again shown to her and her reply
was not obtained in writing when she remained present before
respondent no. 1 Board on the date of hearing. If she had given any oral
explanation, that explanation does not find any mention in the impugned
order. Annexure R1 is notice of hearing dated 21.6.1988 which calls
about 31 students for hearing on 7.7.1988 at 11.00 am. Therefore, it is
apparent that proper and effective opportunity of hearing was not given
to the petitioner. The order of punishment imposing the punishment on
about 347 students does not show that these 347 students were heard
on different dates. The order imposing punishment needed to be a
reasoned order showing application of mind and pointing out why
defence was not accepted.
In this situation, material on record is insufficient to hold that
11.
petitioner was given proper and effective opportunity before debarring
her. Even allegations against her were not communicated in writing and
her answer was not obtained in writing. The order of punishment is thus
Petitioner was admitted in 2nd year in very same college and
12.
unsustainable.
her absorption in the Government D. Ed. College was in December 1988.
In this situation, it is clear that petitioner cannot be blamed in any way
and it cannot be said that she played any mischief by appearing in the
examination. If there was any order of punishment, respondent no. 1
would have very well prohibited her from appearing in next examination.
Why respondent no. 1 could not do so, is not apparent. Moreover, if on
the basis of such appearance, an action was to be taken after several
years of passing of punishment order, again a show cause notice and grant
of opportunity was necessary. No opportunity is given to petitioner before
withdrawing her diploma in present matter. Therefore, also impugned
order dated 6.10.1997 is unsustainable.
13.
In the result, writ petition is allowed. Impugned order dated
6th October 1997 (Annexure VI) is quashed and set aside. Rule made
absolute accordingly with no order as to costs.
P
. R. BORA, J
B. P
. DHARMADHIKARI, J
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