J.T. SECRETARY, GUJARAT SECONDARY EDUCATION BOARD And ANOTHER vs DAKSHA ISHWAR LAL DHORAJIYA

GUJARAT Secondary Education Board, the original opposite party in original complaint No. 302/92 has filed this appeal challenging the order passed by the District Forum, Junagadh on 9.10.1992. It appears from the record produced by the appellant that the complaint was filed by one student Daksha Ishwarlal Dhoragiya and the summons was sent by Registered A.D. on 8.9.1992 directing the Board to appear and file written statement on 25.9.1992. However, neither the written statement was filed by one anybody appeared on the date fixed under the summons. Therefore considering the urgency of the matters the District Forum appears to have passed an order on the same day i.e. 25.9.92 directing the appellant-Board to produce the English answer book of the complainants students through responsible officer on 9.10.92. The order in terms states that this was the order made by the District Forum. It appears that on 9.10.92 the Superintendent of the Board appeared before the District Forum but had not produced any document or the answer book directed to be produced by the District Forum.

THE District Forum passed an order for fine of Rs. 3,000/- against the Board and directed the Board to pay the amount within 5 days and the date for final hearing was fixed on 13.10.92 and further directed that on that date the English answer book be produced alongwith other documents and papers. THE present appellant has therefore filed this appeal before us and has obtained interim stay against the implementation of the order passed by the District Forum dated 9.10.92. Mr. A.J. Desai, Advocate, appears on behalf of Mr. M.C. Bhatt for the appellants. In pursuance to our notice, the respondent (orig. complainant) has appeared on 21.10.92. The learned Advocate of the Board has voluntarily produced the English answer book of the complainant for our examination to satisfy our conscience. The say of the learned Advocate of the appellant was that the Court might examine the answer book since according to the Board, the marks given were correctly shown on the answer book on the first page of the answer book and there is no mistake of calculation. The learned Advocate of the Board has also offered us to see the paper and to verify that this has been correctly assessed, though they had in terms stated that the assessment of the paper is not within the jurisdiction of any. Law Court or Commission. Mr. Bhatt having realized certain observations made by us requested us to adjourn the appeal and the appeal was adjourned to 9.11.92. On 9th also, again request was made to adjourn for two days so that Mr. Bhatt can persuade the authorities if anything can be done and, therefore, we kept the hearing on 12.11.92. However, the respondent with her parent had come at 11.30 a.m. but the appellant being absent. We waited till 2.30 p.m. i.e. the recess time and then passed order dismissing the appeal for default.

At about 3 p.m. Mr. Desai appeared before us with some officers of the Board orally praying that the matter be heard on merits and the order of ''dismissed for default'' may be set aside. We could have done that at that time but the learned Advocate of the Respondent had left the Court and when the respondent-complainant came before the Commission to take copy of the order passed by us, we directed them remain present today so that proper order can be passed and in this way this appeal has come for hearing today since we have set aside the order of dismissal.

SO far the impugned order is concerned, it has been now well established that before the order can be passed under Section 27, show-cause notice should be issued against the concerned officer who is alleged to have disobeyed the order of the District Forum. In the instant case, no show cause notice appears to have been issued either against the Board or against the concerned officer. The porvisions of Section 27 are quasi-criminal and, therefore, before any penalty can be imposed the delinquent must be given full opportunity to defend his case. It means that he must be served with a notice pointing out the default committed by him. He must be also given an opportunity to file his defense and examine the witness if there is any and after full consideration appropriate order can be passed under Section 27 will be subject to several challenges. We are, therefore, of the view that the order passed by the District Forum is contrary to the principles of natural justice and settled procedure for punishing a guilty person. It may also be noted that the Board is a statutory body and the Board ought to have appeared before the District Forum in response to the summons. Nobody appeared. A second notice appears to have been sent directing the Board to bring the documents and answer book. That has also been ignored by the Board. If the statutory Board acts in a manner is which it has Mr. Desai states that the Board has filed a written statement but before written statement can be filed the Board should make an application to set aside the ex-parte order passed by the District Forum. In any view of the matter we are not concerned whether the Board has filed a written statement or not, but obviously the Board has not cared out the orders passed by the District Forum. We, therefore, set aside the order not on the ground that the District Forum cannot pass an order but only on the ground that the proper procedure has not been followed by the District Forum which has resulted into great hardship to the complainant.

SINCE we have seen the answer book given by the officers of the Board, we are constrained to say that the first page of the answer book which was with regard to grammar was correctly answered and, therefore, our conscience is not satisfied regarding the assessment. But here we are not concerned with the assessment since the said question is pending before the District Forum. Mr. Desai submits that the Court has no power to enter into the assessment or the Court cannot assess the answer book. We do not want to express any opinion since this is not the question before us but we are of the opinion that all the procedural rules are meant to assist the justice. If the Board comes to the conclusion that a student''s career will be ruined on account of obvious error, we have no doubt that the Board being a statutory body and a State within the meaning of Article of the Constitution, will not discriminate the student. The appeal is, therefore, allowed. The observations which we have made are only to assist the Judge but they should not be taken as findings given by us. The District Forum will take up the matter urgently and decide the same in accordance with law. Though we allow the appeal, we are of the opinion that on account of non-obedience of the order of the District Forum the complainant (respondent) has suffered mentally and financially. We, therefore, of the opinion that it will be just and proper to allow cost to the respondent. ORDER The appeal is allowed. The penalty imposed is set aside and the District Forum is directed to take up the matter urgently and decide the same in accordance with law. In the circumstances stated above, the Respondent (Original Complainant) will be entitled to cost which we quantify at Rs. 1,000/-. Appeal allowed-Cost imposed.