Madhu Malhotra vs The Himachal Pradesh University

R.S. Pathak, C.J.—The Petitioner appeared in the Pre-University Examination in November, 1974 When she was taking the English Paper ''B'' on November 5, 1974, the Superintendent apprehended her with a note of paper, apparently containing information required for answering that paper. Her statement was recorded by the Superintendent. She stated that the note had been thrown in from outside the hall and that it she was in the act of handing it over to the Superintendent. On December 19, 1974 the Registrar of the Himachal Pradesh University sent a notice to the Petitioner intimating that on the basis of a report received from the Superintendent it appeared that she had been guilty of employing unfair means in the examination and that she should submit an explanation. She was also asked to appear before the Examination Disciplinary Committee on January 7, 1975 and produce such defence and bring such witnesses as she desired. On December 31, 1974 the Petitioner submitted her explanation, reiterating what she rad said to the Superintendent. When she appeared before the Examination Disciplinary Committee on January 7, 1975 she maintained her original stand and continued to protest her innocence On January 16, 1975 she was informed by the Registrar of the University that the Committee had found her guilty under Ordinance 6.35(g) of the First Ordinances of the University, and while ordering the cancellation of the entire examination it had disqualified her for a period extending up to and including the Supplementary Examination of 1975 from appearing at any university examination. On January 22, 1975 the Petitioner submitted a representation to the Vice-Chancellor of the University urging that she had applied on December 31, 1974 for an opportunity to produce a number of witnesses in support of her case, and that the Committee had decided against her without affording her that opportunity. She prayed that the Vice Chancellor should refer the case back to toe Committee for a fresh decision after giving her an opportunity to examine those witnesses. A document, purporting to be a copy of the said application dated December 31, 1974, was filed with the representation. Thereafter, on January 27, 1975 the Assistant Registrar (Examinations) wrote to the Petitioner setting out a number of circumstances from which be inferred that her allegation was not acceptable that she had applied on December 31, 1974 for an opportunity to examine witnesses. She was required to prove her allegation. The Petitioner wrote to the Vice-Chancellor confirming that she had indeed made an application for producing her witnesses. On March 5, 1971 the Assistant Registrar (Examinations) informed her:

Your representation was duly considered by the Examination Discipline Committee in its meeting held on the 18th February, 1975 and the Committee has found that you have failed to produce any fresh fact necessitating the review of the case. The committee has further found that you were given sufficient opportunity to produce evidence (witnesses) even at the time of your first appearance before the Committee on the 7th January, 1975. In view of the position as explained above the Committee has found no reason to change the previous decision as already communicated to you vide this office letter of even number dated 16-1-1975".

The Petitioner has now filed this writ petition praying that the orders of the Committee communicated to her by the letters dated January 16, 1975 and March 3, 1975 of the Assistant Registrar (Examinations) be quashed.

Learned Counsel for the Petitioner points out that the Vice-Chancellor has erred in not deciding himself whether the application for witnesses was in fact made by the Petitioner; and in leaving the decision of that question to the Examination Discipline Committee he acted in error. The consequence, it is urged, is that the order of the Committee communicated on March 3, 1975 is invalid. Learned Counsel for the Respondents has placed the original record before me. It appears from it that the Assistant Registrar (Examinations) submitted the following proposeal to the Vice-Chancellor:

Reference reply of Miss Madhu Malhotra at slip ''A'' below in response to our letter at slip ''B''.

Since this is a new fact (although does not seem to be correct) that she alleges to have sent an independent reference about the witnesses, we may place this letter before the Examination Discipline Committee for their consideration at its next meeting to be held on 18-2-1975".

The Vice-Chancellor endorsed his approval to this proposal.

Ordinance 6.38(g) of the First Ordinances of the University reads:

A candidate may within seven days of the receipt of the decision of the Examination Discipline Committee bring to the notice of the Vice-Chancellor, in writing, any fact or material, which may not have been considered by the Examination Discipline Committee. The Vice-Chancellor, if satisfied, that there is force in the representation of the candidate, may refer back the case to the Examination Discipline Committee for reconsideration.

The Examination Discipline Committee shall then reconsider the case and a unanimous decision of the Committee shall be final.

Plainly, the provision requires the Vice-Chancellor to consider the representation of the and date and decide whether there is any fact or material brought to his notice by the candidate which was not considered by the Examination Discipline Committee when it rendered its decision against the candidate. If the Vice-Chancellor is satisfied that the representation has force, that is to say that there was some fact or material which was not considered by the Committee, he is empowered to refer the case back to the Committee for reconsideration. The decision on the question whether the Committee omitted to consider any fact or material is a decision entrusted to the Vice-Chancellor. It is only he who can decide that question. He cannot leave the matter to the Committee to decide, and the Committee has no jurisdiction to decide it. The function does not belong to the Committee at all. The Committee is bound by the finding of the Vice-Chancellor that there is some fact or material which it omitted to consider earlier. Further, it is only after the Vice-Chancellor has found that the Committee has omitted to consider the fact or material that he can refer the case to the Committee for reconsideration. In the present wise, the Vice-Chancellor does not appear to have decided the question before him whether the application dated December 31, 1974 was indeed made by the Petitioner. The proposal made by the Assistant Registrar (Examinations) and approved of by the Vice-Chancellor indicates that only a doubt was expressed the correctness of the Petitioner that she had made the application dated December 31, 1974. There was no clear finding on the point. In the absence of any clear finding by the Vice-Chancellor, it must be held that he failed to discharge the duty resting on him and that his direction to the Committee to consider the application was invalid. Consequently, the findings rendered by the Committee and convened be the Assistant Registrar (Examinations) to the Petitioner by his letter dated March 3, 1975 are also invalid.

It appears necessary now that the Vice-Chancellor should reconsider the representation made by the Petitioner dated January 22, 1975 and to dispose it of in accordance with law.

The writ petition is allowed. The order of the Vice-Chancellor directing the Examination Disciplinary Committee to consider the application dated December 31, 1974 made by the Petitioner is quashed. The order of the Committee communicated by the Assistant Registrar (Examinations) by his letter dated March 3, 1975 is also quashed. The Vice-Chancellor will now reconsider the representation dated January 22, 1975 made by the Petitioner and dispose it of in accordance with law. In the circumstances, there is no order as to costs.

On April 28, 1975 this Court, while dispoing of Civil Miscellaneous Petition No. 434 of 1975 in this case, made an order permitting the Petitioner to appear in the Pre-University Examination commencing May 1, 1975. The order stated that she was permitted to appear but the result would not be declared and would be subject to the decision of the writ petition. It seems that the Petitioner did appear at the examination. In view of the order now made disposing of the writ petition, it seems necessary to direct that the result will not be declared until the final disposal of the representation dated January 22, 1975.