9911796707
TMI Blog2016 (12) TMI 1895X X X X Extracts X X X X X X X X Extracts X X X X ..... he top of the right of the every page placing numbers in a box drawn, that he had put a cross line with pencil across the third page and that the petitioner had drawn an index on the fourth page of the answer-sheets. 3. The petitioner appeared in the examination of different subjects which was held between 02nd January, 2016 to 23rd January, 2016. The result was declared on 12th February, 2016. However the petitioner's result was not declared. It appears that by letter dated 15th February, 2016, the respondent University communicated to the petitioner that his result was withheld. By another letter dated 15th February, 2016 the petitioner was asked to remain present before the Aachar Committee (Unfair Means Committee). The petitioner remained present on 24th February, 2016 before the Committee as required. The Committee recorded the statement and considered the case of alleged disclosing of identity against the petitioner and decided to impose punishment as per impugned order dated 08th March, 2016. In passing the order, report of the Disciplinary Committee was considered. It appears that the representations made by the petitioner were rejected. 4. Learned senior counsel Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [AIR 1992 SC 952], which was a case of examination under Public Service Commission and the candidate had acted contrary to instructions by writing role number inside the answer-book. Another decision of the Apex Court in Secretary, Tamil Nadu Public Service Commission Vs. A.B. Natrajan [AIR 2015 SC 176] to submit that in that case where appointment was being done for Group-1 services under a written examination, the petitioner candidates violated instructions and found to be careless person who are otherwise to be appointed as Class I Officers. On the ground of irregularities committed by them by not following the instructions, their selection was set aside by the Supreme Court. 4.4 Learned advocate thereafter relied on Division Bench judgment of this Court in Sardar Patel University Vs. Minal R. Jogi [2000 (2) GLH 199] from which it was sought to be highlighted that possession of material pertaining to subject of examination in the examination hall would amount to misconduct. Another decision also of the Division Bench of this Court in Gujarat Secondary Education Board Vs. Sami Dharampalsingh Chaudhary minor through Father [2000 (2) GLH 90] was pressed into service, in which stu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shvinbhai Parekh (supra), the set of rival contentions by both the sides were on the similar lines as could be seen from the contents recording the submissions in paragraph 5 to paragraph 13 of the said decision. The Division Bench applied the principle of no evidence to hold that the case against the petitioner was one of 'no evidence'. For elucidating and applying the said principle to the facts of the case, the Division Bench relied on earlier decision of Division Bench in Siddharth Mohanlal Sharma Vs. South Gujarat University [1982 GLH 648]. 5.2 The Division Bench in Siddharth Ashvinbhai Parekh (supra) noticed the statement of the said petitioner given before the Committee when he remained present on 24th February, 2016 by observing and stating, "Thus, the petitioner has specifically stated that on page 23 he had done rough working and had written the points of answers which were asked in the examination and which are needed to recollect. He has further explained that there is no provision where to do rough working but in many Universities it is clearly mentioned in the examination guidelines that rough working should be done on last page and should be crossed out. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght not to have passed the impugned order." (Para 19) 5.4.1 The Court noticed, "From the record, it is further clear that in the impugned order dated 08.03.2016 the respondent-University has stated that the alleged misconduct against the petitioner is proved and therefore the order of penalty is passed against him. However, it is not at all stated how the alleged misconduct is proved against the petitioner. There is no discussion or reference with regard to the same and therefore the said order is a non-speaking order. At this stage, it is to be noted that the respondent-University has not supplied the copy of the report of the Disciplinary Committee to the petitioner. However, the said report was submitted along with the affidavit filed before the learned Single Judge. Thus, the petitioner was also deprived of putting his defence and thereby also the respondent-University has violated the principles of natural justice." (Para 20) 5.4.2 The Division Bench set aside the decision of the learned Single Judge in the writ petition by stating, "Thus, in a given facts, it was observed by the Hon'ble Supreme Court that it is a systematic case of fraud committed by the concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law open, whether it was permissible for this Court to take a different view. It was attempted to contend by learned advocate for the University in a naive way that the Supreme Court had not dismissed the SLP, but used the words 'not inclined to interfere'. One fails to fathom, what differentiation learned advocate wanted to establish thereby. It was harped that because of clarification by the Supreme Court about keeping the question of law open, this Court can take different view and may take a departure in light of facts of the present case. 6.2 It was in futility that learned counsel for the University relied on these decisions-in (M/s.) Avanti Organization Vs. Competent Authority and Additional Collector, Urban Land Ceiling, Rajkot [1989 (1) GLH 400], in Patel Forum Jitendrabhai Vs. State of Gujarat being Letters Patent Appeal No. 1309 of 2015 decided on 23rd March, 2016, in The Saurashtra University through Registrar Vs. Gautambhai Nareshbai Chaudhari being Letters Patent Appeal No. 1351 of 2012 decided on 27th August, 2013 and in B.S. Manjunath Vs. V. Kannan [2014 (3) Kant LJ 198]. Another decision in Gujarat Secondary Education Board Vs. Mihir Satishbhai Padmani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guard against any future contention that the Supreme Court had confirmed the ratio of the judgment under challenge whereby either giving rise to a possible contention of merger or that even in future cases, Supreme Court would be precluded from considering such an issue in better facts." (Para 26) 6.3.3 It was elaborated and explained, "When the Supreme Court records that the question of law is kept open, undoubtedly it is meant to be reconsidered in future by the Supreme Court only. The question of law, as correctly contended by Shri P. Chidambaram, is not kept open for the High Court. This is precisely what was held and observed by the Division Bench of this Court in an unreported decision in Tax Appeal No. 380/2013 dated 9/12/2013. We are in full agreement with the view expressed therein. It was a case where an issue of unabsorbed depreciation under section 32(2) of the Income-Tax Act, 1961, was raised by the Revenue before the High Court. An identical issue was already decided by the High Court in case of General Motors India (P) Ltd. v. Deputy Commissioner of Income-Tax reported in (2013) 354 ITR 244 (Guj) by allowing the appeal of the assessee and setting aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the learned ITAT while passing the impugned judgment and order, as such, no question of law much less any substantial question of law arises now." (Para 27) 6.3.4 The Division Bench ruled about correct legal position thus, "We are in full agreement with the view so expressed and in our understanding brings about a correct legal position. When a question of law is kept open by the Supreme Court not entertaining a SLP against the judgment of the High Court, in fact, what is done is neither to confirm nor to dilute the ratio of the judgment under challenge. That however, does not mean that the High Court in a future case is allowed to take a fresh view ignoring the law of precedence. It only means that the Supreme Court refused to bind itself or put its seal on the ratio propounded by the High Court in the judgment under challenge. Therefore, when an identical question comes up before the same High Court and is presented for consideration before a Bench of coordinate strength, by virtue of principles of law of precedence, the Bench would be bound by the ratio of the earlier judgment of the High Court, unless persuaded to refer it to a larger Bench. This is precisely what ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
