TMI Blog1991 (3) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;the Board' conducted secondary examinations in the month of March 1990, whereat the marks awarded, after the formalities of valuation by the examiners of the answer-sheets in each subject; the random counter check by the moderators and further recounting at the Board, Moderators' mark-sheets sent to Pune for feeding the computer to declare the results were found tampered with the appellant. Thereon, admittedly, it was found that moderators' mark-sheets relating to 283 examinees which include 53 respondents in these appeals were tampered, in many a case in more than 2 to 8 subjects, and in few cases in one subject. As a result, 214 examinees have improved their ranking, which would be in some cases exceptionally good. The declaration of their results were withheld pending further enquiry and the rest declared on June 30, 1990. Several writ petitions were filed in the High Court against non-declaration of the results and the High Court directed to take expeditious action to declare the results of the examination within the specified time. The Board appointed seven enquiry officers to conduct the enquiry. Show cause notices were issued to the students on July 30, 1990 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits. The learned Judges by separate but concurrent judgements allowed the writ petitions. Sugla, J. held that the Standing Committee of the Divisional Board under the Maharashtra Secondary and Higher Secondary Education Board Act of 1965 for short 'the Act' was devoid of power. It did not obtain the approval of the Divisional Board, and therefore, the impugned notification was without authority of law. On merits also it was held that the Standing Committee did not apply its mind in the proper perspective to the material facts. Therefore, the finding that tampering was done at the instance of the examinees/parents/guardians is perverse. Bharucha, J. without going into the jurisdictional issue agreed with Sugla, J. and held that the preponderance of the probabilities would show that the examinees were not guilty of the malpractices. The guilt has not been established. The examinees might well be innocent. Accordingly, the impugned notification dated August 31, 1990 was quashed. Mandatory injunction was issued to Board to declare the results of 253 examinees within two weeks from the date of the judgement and marks were directed to be communicated to the examinees within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were used at the final Secondary Examination held in March 1990, by fabricating the Moderators' mark-sheets of 283 examinees, in a concerned manner, admittedly, to benefit the students concerned. The first question, therefore, is whether the Standing Committee of the concerned Divisional Board has power under the Act and Regulations to enquire into the use of unfair means committed at the final examination conducted under the Act. Section 4 of the Act declares that the State Board of Secondary and Higher Secondary Education is a body corporate. Section 18 enumerates the powers and duties of the State Board. Clause (t) of Sec. 18 empowers the Board to make regulations for the purpose of carrying into effect the provisions of the Act. Clause (g) empowers the Board to give to the candidates certificates after passing final examination. Clause (m) empowers to recommend measures and to prescribe conditions of discipline. Clause (w) gives residuary power to do all such acts and things as many be necessary to carry out the purposes of the Act. Section 19 gives powers and entrust duties to the Divisional Board of each division. Clause (f) postulates, to conduct in the area of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalties to be followed by the Divisional Boards, in dealing with cases of use of unfair means by persons seeking admission to or appearing at the examinations conducted under the authority of the State Board. Under Regulations 14 the Standing Committee of the Divisional Board was to be constituted under sub-regulation (1) thereto. Sub-regulation (2) provides: Subject to the provisions of the Act and the Regulations, the Standing Committee shall have the following duties and functions, namely-- ..... (x) to deal with cases of use of unfair means by persons seeking admission to or appearing at the final examinations, according to the procedure laid down by the State Board. By a resolution passed at the meeting of the State Board held on October 26, 1985, Exhibit 'z' provides the procedure for enquiry. Clause 3(f) defines 'misconduct' as follows: Misconduct shall mean any illegal or wrongful act or conduct which is alleged to have been resorted to by any candidate and/or any member of staff, at, for or in respect of the final examination and, without prejudice to the generality of the foregoing, shall include..... tampering with the documents iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant item 16 reads thus: Tampering with the Secondary/Higher Secondary School Certificate and/or statement of marks or their copies and any other documents issued by the Board. Cancellation of performance of the Examination and debarring the candidate for five more examinations and/or to lodge complaint by the concerned institution/Authority to Police Department. Thus a conspectus of these relevant provisions of the Act, regulations and resolutions clearly cover the entire field of operation regarding the use of unfair means at the final examinations specified the competent authorities and the procedure to deal with the same. The Divisional Board undoubtedly has been empowered under Sec. 19 of the Act to deal with the use of unfair means at the final examination. It may be made clear at this juncture that the Standing Committee consists of six members of the Divisional Board and none of them associated with the enquiry. Enquiry Officers are also the members of the Divisional Board. The regulations provide the procedure in this regard. It is undoubtedly true as contended by Shri Chidambaram, that the Act empowers the Divisional Board to deal with the use of unfair means at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted as a District Judge. The Administrative Committee of the High Court reviewed the service and the Committee recommended to the State Government and communicated to all the Judges of the recommendation to compulsarily retire the respondent from service. The Govt. accordingly retired the respondent compulsarily which was challenged in a writ petition. A Full Bench of the Allahabad High Court held that the District Judge cannot be retired from service on the opinion formed by the Administrative Committee and all the Judges should have considered and made recommendation. Accordingly, the order was set aside. On appeal, the Constitution Bench of this Court held that Art. 235 of the Constitution provides control over the District Judges and the Court subordinate thereto shall be vested in the High Court. It is open to the High Court to make rules to exercise the power of control feasible, convenient and effective. Accordingly the High Court regulated the manner of appointment of a Committee to screen the service record. Thus, the rules framed prescribed the manner in which the power has to be exercised. Truely, it is regulatory in character and the powers were exercised by the Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal' also includes the control over disciplinary and not mere administrative jurisdiction. The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including initial posting and promotion of the District Judge and dismissal, removal and reduction in rank of the District Judges within the exercise of the control vested in the High Court. The High Court can hold enquiries, impose punishments other than dismissal or removal subject, however, to the conditions of service to a right of appeal, if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by Clause (2) of Art. 311 unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could make enquiries into disciplinary conduct. It was held that the High Court had no jurisdiction to dismiss the District Judge. Accordingly it was quashed. That ratio has no application to the facts in this case since the Act, Regulations and the Resolutions empowered the Divisional Board and its Standing Committee to deal with use of unfair means a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquainted with the Divisional Board. Accordingly the Board must be deemed to have passed the impugned notification as per the scheme of the provisions of the Act and the Regulations. Therefore, the finding of the learned Judge Sugla, J. that the Standing Committee had no power to take the impugned decision, etc. without approval of the Divisional Board is clearly illegal and cannot be sustained. The question then is whether the candidates or their parents or guardians are privy to the fraudulent fabrication. Since we are informed that investigation in this regard by the Police is in progress, we refrain to express any final opinion in this regard. Suffice to state that the records clearly establish that there was a fraudulent fabrication of the moderators' marks-sheets of 283 candidates including the respondents herein. The question, therefore, emerges whether the conclusion reached by the Standing Committee that the fabrication was done at the behest of either the candidate or the parents or the guardians to their advantage is based on records. We remind ourselves that the facts was examined to explain as to how the moderators' sheets were dealt with after the board s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rents/guardians were responsible to fabricate the moderators' marks-sheets is based on evidence. Proper enquiry was conducted giving reasonable opportunity to the candidates. Show cause notices set out the material facts on which the Board intends to place reliance. The examinees submitted their explanations and also answered the questionnaire. On consideration thereof the Standing Committee had reached the conclusions of the guilt of the examinees/parents/guardians. This is based on record. It is not open to High Court to evaluate the evidence to come to its own conclusions. Thereby the High Court has committed manifest error of law warranting interference by this Court. Art. 51A of the Constitution enjoins every citizen, as a fundamental duty, to promote harmony and spirit of common brotherhood among the people, to develop the scientific temper, humanism and the spirit of inquiry and reform; to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. Art. 29(2) declares education as fundamental right. The native endowments of men are by no means equal. Education means a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar v. Shri Venkateswara University, AIR 1981 A.P. 163 P.A. Choudhary, J., in the context of finding the student guilty of mal-practices held, that I regretfully note that standards of discipline and education presently detaining in many Universities in our country leave a good lot to be desired. They are low and falling lower every day. the fall-out of these low standards of university education on liberal profession is proving to be nearly catastrophic ..... It is no wonder that some of our Universities have ceased to be centres of learning and have grown into battle-fields for warring Caste groups. It was held that what the Writ Court under Art. 226 need to consider is whether fair opportunity had been given to a petitioner and he had been treated squarely and whether the student had a fair deal with the University. Once the procedural formalities are complied with, in the absence of any allegation of mala fide, it must be presumed that the University had acted bona fide and honestly so long as there is the evidence justifying the inference arrived at without there being a serious procedural irregularity. The Writ Court would not interfere with an order of educational instituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal background in the previous school years and also the marks they expected at the final examinations. The need of the assistance of the parents/guardians was thus absolutely nil. Further question in the proforma was to ascertain from the students, due to tampering, whether or not the marks were increased to his or her advantage. It could be answered by a mere look at the marks. No outside assistance is needed. All the students have admitted that the answer books belong to them. They also admitted the marks initially awarded by the examiner or added or subtracted, if any, by the moderators. They also admitted that the fabrication in the moderators' mark-sheets in the subject or subjects and the marks were increased to their advantage. They also denied the complicity of him or her or of parents or guardians. It is not the case of the respondents that they were coerced to answer the questions in a particular manner. It is obvious from the record that they had prior consultations with the counsel. Thus it could be seen that the procedure adopted at the inquiry is fair and just and it is not vitiated by any procedural irregularity nor is violative of the principles of natural jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urveyed the entire case law in this regard, and we need not burden the Judgement to reiterate them once over and at page 643 in paragraph 40 it held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi- judicial functions is required to record the reasons for its decision. In para 36 it was further held that recording of reasons excludes changes of arbitrariness and ensure a degree of fairness in the process of decision making. The said principle would apply equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review. It is 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 the consideration to the points in controversy. The need for recording reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The omission to record reasons in the present case is neither illegal, nor is violative of the principles of natural justice. Whether the conclusions are proved or not is yet another question and would need detailed consideration. In Khardah Co. Ltd. v. Their Workmen, [1964] 3 SCR 506 at p. 514 the ratio that the Enquiry Report must contain reasons in support of the findings drawn neatly and briefly is of no assistance for the aforestated facts of this case. The ratio in A.K. Roy, etc. etc. v. Union of India Ors., [1982] 1 SCC 271 that the aid of friend could be taken to assist the detenu and in Pett v. Grehound Racing Association Ltd., [1968] 2 All Eng. Reports 545 the right to appoint an Agent to represent the case of the petitioner are also of no assistance since the rule expressly excluded such a representation. The ratio in Union of India v. H.C. Goel, [1964] 4 SCR 718 also does not help the respondents for the reason that it is not a case of no evidence and the conclusions were reached on the basis of the admission made by the respondents. The ration in M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen Ors., [1971] 2 SCC 617 also does not apply to the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistance to the respondents. The ratio in (Gujarat Steel Tubes Ltd.,) v. (Gujarat steel Tubes Mazdoor Sabha,) [1980] 2 SCR 146 at p. 202 that the conclusion and the findings are in different hand-writings, which would show the non-application of the mind to the facts and it violates the principle of natural justice also does not apply to the facts of this case. The ratio in (Union of India Ors.) v. (Mohd. Ramzan Khan,) JT 1990 (4) SC 456 also does not apply to the facts in this case as the report is solely based on the admission made by the examinees and no new material has been relied upon by the Enquiry Officers. Undoubtedly, it is settled law that the right to life includes right to reputation and livelihood and that the individual as an entity is entitled to the protection of Art. 21, but in view of the facts of this case the ratio in (Vishwa Nath) v. (State of Jammu Kashmir,) [1983] 1 SCC 215 and (Ogla tellis Ors.,) etc. v. (Bombay Municipal Corporation Ors., etc.,) [1985] 3 SCC 545 also do not help the respondents. The further contention of Sri Salve that the order must be a speaking order preceded by a fair enquiry and the report must be based on cogent evidence, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd reasonable doubt it must be taken for all purposes of law to be a fact, as there is no room for a distinction between what is found by inference from the evidence and what is found as a positive face. and contended that the standard of proof of fabrication of record in a domestic inquiry does not differ from criminal charge and it must be of a higher degree. In the Board of High School and Intermediate Education U.P. v. Bagleshar Persad Ors., [1967] 3 SCR 767 relied on by Sri Andhyarjuna the facts were that the appellant Board accepting the findings of the committee that the respondents used unfair means in answering the subjects, cancelled the declaration of the results of the respondent in the High School Certificate Examination held in 1960. The charges were based on the facts that in the Hindi paper the respondent gave wrong answers to a particular question in the same way in which the answers have been given by another candidate who was having consecutive number. The High Court held that the findings of the Committee were based on no evidence and quashed the cancellation of the results. On appeal, this Court held that the respondent admitted that the mistakes in answers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the rules of natural justice. Accordingly, it was held that the appeal was allowed and the order of the High Court was set aside and that of the domestic tribunal was confirmed. In (Bihar School Examination Board) v. (Subhash Chandra Sinha Ors.,) [1970] 3 SCR 963 this Court emphasised that the essence of an examination is that the worth of every person is appraised without any assistance from an outside source. The academic standards require that the authority's appreciation of the problem must be respected. A full- fledged judicial inquiry was not required. It is not necessary to conduct an inquiry in each individual case to satisfy itself who are the candidates that have adopted unfair means when the examination as whole had to go. It was further held at p. 968 E to H that while we do not wish to whittle down the requirement of natural justice and fair- play in case where such requirement may be said to arise, we do not want that this court should be understood as having stated that an enquiry with a right to representation must always precede in every case, however, different. The universities are responsible for their standard and conduct of the examination. The uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not available. In that situation the Examination Committee as of necessity to rely on circumstantial evidence which may include the answer given by the examinee, the report of the Superintendent of the centre, the invigilator and the report of the experts and other attending circumstances. The Examination Committee, if relies upon such evidence to come to the conclusion that the examinee has used unfair means in answering questions then it is not open to the High Court to interfere with that decision, merely because the High Court may take a different view on re-assessment of those circumstances. While it is open to the High Court to interfere with the order of the quasi-judicial authority, if it is not supported by any evidence or if the order as passed in contravention of the statutory provisions of the law or in violation of the principles of natural justice, the court has no jurisdiction to quash the order merely on the ground that different view could possibly be taken on the evidence available on the record. The Examination Committee has jurisdiction to take decision in the matter of use of unfair means not only on direct evidence but also on probabilities and circumstantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court approved the statement of Baron Alderman in Reg v. Hodge, [1988] 2 Law, 227 that: The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts, of one connected whole; and the more ingenious the mind of the individual the more likely was it, considering such matters, to over reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. It was held that in evaluating the evidence of circumstantial nature it is the duty of the prosecution that all the circumstances must be fully established circumstances should be consistent only with the hypothesis of the guilt of the accused. This standards of proof also is not relevant not to be extended to consider the evidence in an inquiry by the domestic tribunal. The ratio in (Bank of India v. J.A.H. Chinoy,) AIR 1950 PC 90 that the appellate court would be reluctant to differ from conclusion of the trial Judge if his conclusion is based on the impression made by a person in the witness box is also not germane for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the facts presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established, the rules of presumption are reduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances. Bhandari v. Advocates Committee, [1956] All Eng. Law Reports 742 (PC) is also a case concerning the professional misconduct. In proof of the charge it was held that it is the duty of the professional domestic tribunal investigating the allegation to apply a high standard of proof and not to condemn on a mere balance of probabilities. In Glynn) v. (Keele University Anr., [1971] 2 All Eng. Law Reports, 89 (Chancery Division) relied on by Sri Salve, the question arose whether failure to give an opportunity to the students before the suspension is violative of the principles of natural j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Division Bench, in the penultimate paragraph of the judgment that the court would be cognizant of the steep decline of public standards, public moral and public morale which have been contaminating the social environment and emphasised that where such situation cry out the Court should not and cannot remain mute and dumb and it is necessary to cleanse public life. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fabrication is an offence. Merely it was done in one subject or more than one makes little difference. Its gravity is not mitigated if it is committed in one subject alone. This is not an innocent act or a casual mistake during the course of performance of the official duty as is sought to be made out. It was obviously done as a concerted action. In view of the admitted facts and above circumstances the necessary conclusion that could unerringly be drawn would be that either the examinee o r the parent or guardian obviously was a privy to the fabrication and that the forgery was committed at his or her or parent's or guardian's behest. It is, therefore clear that the conclusion reached by the Education Standing Committee that the fabrication was done at the instance of either the examinees or their parents or guardians is amply borne out from the record. The High Court in our view over-stepped is supervisory jurisdiction and trenched into the arena of appreciation of evidence to arrive its own conclusions on the specious plea of satisfying 'conscience of the court'. The question then is whether the rules relating to mode of punishment indicated inthe Appendix ..... X X X X Extracts X X X X X X X X Extracts X X X X
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