Vani Umamaheswari vs The Principal, Y.M.C.A. College of Physical Education and Others

P. Sathasivam, J.—By consent of all the parties concerned the main writ petition itself is taken up for final hearing. The prayer in the writ

petition reads as follows:

To issue a writ of certiorarified mandamus or any other appropriate writ, order of direction in the nature of the writ of certiorarified mandamus

calling for the impugned letter of the first respondent dated 26.7.1996 and to quash the same, directing the 1st respondent to treat the petitioner''s

absence from 26.7.1996 to 30.8.1996 as leave and to mark attendance for the petitioner from 2.9.1996 till she is permitted to attend the classes in

the College for the M.P. Ed., course for the academic year 1996-97.

The case of the petitioner as seen from the affidavit filed in support of the above writ petition is briefly slated hereunder:

The petitioner is a student of Y.M.C.A., College of Physical Education, Nandanam, Madras-35. She joined the first respondent''s college during

the year 1995 for B.P. Ed., course staying in the hostel for women attached to the said College. According to her, during the said course, she was

an outstanding sudent and passed B.P. Ed., examination creditable. She was one of the selected players for the Basketball match of the South

Division of the Madras University and the team won the match. She further averred that after successful completion of B.P. Ed., course, she joined

M.P. Ed., course for the academic year 1996-97. Since she is native of Trichy District she studied in the said College by staying in the women''s

hostel attached thereto. According to her, she hails from a poor family and a bright student in the college. She further averred that during the 3rd

week of July, 1996, she received a message stating that her father was very seriously ill and bed-ridden. After informing the 1st respondent about

the serious condition of her father and after obtaining his permission, she rushed to Trichy on 26.7.1996 to see her father. She further contended

that herself and her mother had to attend on her father in turns, since he befog in an unconscious state. Despite treatment, her father passed away

on 18.8.1996. Subsequent to the death of her father, the petitioner and her mother had to carry out attendant rituals and ceremonies which lasted

for a fortnight. Thereafter she returned to Madras and went to the college on 2.9.96 at 10.00 a.m., to attend classes. Only on that day she came to

know that her name was struck off from the rolls and also from the records of the institution. According to her, she could not secure any

information why her name was removed from the rolls. No notice much less show-cause notice was issued to her. Thereafter she sent a registered

legal notice on 3.9.1996 with acknowledgment due. Though the said notice was duly served on the first respondent, the first respondent did not

send any reply till date.

It is further averred that on 21.9.1996 the petitioner''s mother received a letter addressed to the petitioner by the first respondent dated

9.9.1996. Her mother came to Madras with the said letter on 16.10.1996 and delivered the same to her wherein she found two xerox copies of

Action Committee report and the medical discharge slip was meant for her mother. The letter of a private hospital shows that the petitioner was

hospitalised on 25.7.1996 for consuming 3 or 4 Avil tablets of 25 grams each and she was discharged on 26.7.1996. She further denied in her

affidavit with regard to the consumption of 3 Avil tablets of 25 grams each and the alleged presence of her mother at the time of enquiry as

mentioned in the impugned order. She further contended that even though she made sincere efforts in joining the College even after returning from

her native place, due to the calamities referred earlier, she was not allowed to attend classes.

In pursuance of Rule Nisi ordered by this Court on 7.11.1996, the first respondent, namely, Principal, Y.M.C.A. College of Physical Education,

Nandanam, Madras-35 has filed a counter-affidavit wherein the various averments made by the petitioner have been denied. In the counter it is

contended that the petitioner was called by the first respondent on 25.7.1996 and she was warned for the ""misconduct"". In order to cause threat to

the Principal and the college authorities, the petitioner consumed tablets and fell unconscious in her room and the same was brought to the notice of

the Hostel Manager by her room mates and immediately she was admitted in Lakshmi Hospital, T. Nagar, Madras-17. The petitioner was

inpatient on 25.7.1996 night and there she underwent treatment and on enquiry, the petitioner has informed the Doctor that she took ''Avil'' tablets

3 to 4 in numbers accidentally. It is further submitted that after admitting the petitioner in the hospital a message was sent to her mother and

brother. They came to Madras and after that only the petitioner was discharged from the hospital. Immediately, the Disciplinary Committee was

convened and her mother participated in the Enquiry. The Disciplinary Committee, after thorough enquiry, came to the conclusion that the

petitioner has violated the code of conduct and the rules. The petitioner as well as her mother were informed about the decision of the Disciplinary

Committee and they took all her belongings and left for Trichy. It is also submitted that the petitioner had lost the attendance for the practical

classes as well as the theoritical classes to continue the course. According to the respondent, the impugned order has been passed after conducting

appropriate enquiry and in accordance with the code of conduct and the rules.

I have heard Mr. R. Krishnamoorthy, learned senior counsel for the petitioner and Mr. N. Baskaran, learned Counsel appearing for the first

respondent.

There is no dispute that the petitioner has joined M.P. Ed., course which is a Post Graduate course in Physical Education in the academic year

1996-97. She also took part in some of the matches and represented the first respondent''s college during her under-graduate course. In the

affidavit the petitioner has specifically pleaded that receipt of information about the serious condition of her father, after obtaining permission of the

first respondent; she rushed to Trichy on 26.7.1996 to see her father. According to the petitioner, since her father''s condition was serious she was

forced to stay at Trichy. It is her case that on 18.8.1996 her father passed away and after completion of rituals and ceremonies, she came to the

college only on 2.9.1996. She denied in her affidavit regarding the consumption of ''Avil'' tablets and also specifically denied the presence of her

mother during the alleged enquiry by the Disciplinary Committee. On the other hand, in the counter-affidavit, the first respondent has admitted that

the petitioner has joined M.P. Ed., course for the academic year 1996-97. According to the first respondent, in order to threaten the first

respondent, the petitioner consumed 3 to 4 Avil Tablets. The certificate issued by Lakshmi Hospital in which the petitioner was admitted, shows

that she was admitted on 25.7.1996 and discharged on the next day i.e., on 26.7.1996.

The petitioner in the present writ petition is questioning the impugned order of the first respondent dated 26.7.1996 wherein a decision has been

taken to remove the petitioner from the college. In the impugned order, the following reasons have been given to remove the petitioner from the

college:

(1) It is a threat and dangerous to keep her with this sort of temperment.

(2) This is a very bad example to other Hosteliers.

(3) In the Physical Education college there are rules that no one should take any medicine without the knowledge of the Medical Officer of the

college.

(4) To ensure discipline in the Institution and the interest of the individual it is better to send her home.

(5) As soon as her family members settle her medical bill and settle her no due certificates Vani can collect her T.C.

At this juncture, it is useful to mention that according to the first respondent, the petitioner was discharged on 26.7.1996 from the hospital and the

impugned order has been passed on the very same day removing her from the college. A reading of the impugned order clearly shows that no

opportunity has been given to the petitioner before taking action for removal from the college. It is needless to mention that the authority herein the

first respondent before taking any action, a duty is cast on the authority to give reasonable opportunity to the person going to be affected. In this

case, I do not find any material in the impugned order that a show-cause notice has been issued to the petitioner before taking such a drastic step

of removal on the very same day (26.7.1996). This is the first infirmity in the impugned order.

Even though the petitioner has denied the consumption of 3 or 4 Avil tablets in view of the report of Lakshmi Hospital authorities dated

25.7.1996 even if it is accepted that she had taken 3 or 4 Avil tablets, the punishment sought to be imposed, namely, dismissal from the college on

the very same day is not proportionate to the alleged misconduct. Even though the said certificate shows that the petitioner was discharged on

26.7.1996, it is seen that the said letter has been issued by the Lakshmi Hospital even on 25.7.1996 as seen from the top of the letter head.

Normally the hospital authorities issue certificate only after discharge of the concerned individual and if that is so, mentioning the date as 25.7.1996

may not be correct. As already stated, even the alleged misconduct of the petitioner is true, I am of the view that punishment, namely, removal

from the college is too harsh and cannot be countenanced.

I am very conscious of the fact that Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.

Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority

reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the

court/tribunal is concerned to determine whether the inquiry was held by a competent officer or rules of natural justice are complied with, whether

the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority

to reach a finding of fact or conclusion. But that finding must be based on some evidence. I am aware that neither the technical rules of Evidence

Act nor of proof of fact or evidence as defined therein apply to disciplinary proceedings. When the authority accepts the evidence and the

conclusion receives support therefrom the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The court, in its

power of judicial review docs not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the

evidence. However, the court may interfere where the authority holds the proceedings against the delinquent officer in a manner inconsistent with

the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the

disciplinary authority is based on no evidence. If the conclusion or finding be such no reasonable person would have ever reached, the court may

interfere with the conclusion or the finding and mould the relief so as to make it appropriate to the facts of that case. It is also settled law that when

the conclusion or finding of the disciplinary authority or the authority concerned is utterly perverse, this Court could always interfere with the same.

It is also settled law that this Court while exercising the power of judicial review under Article 226 of the Constitution of India, cannot normally

substitute its own conclusion on penalty and impose some other punishments. If the punishment imposed by the disciplinary authority shocks the

conscience of this Court, it would appropriately mould the relief either by directing the disciplinary authority to reconsider the penalty imposed or

to shortern the litigation time itself in exceptional or rare cases with cogent reasons in support thereof, (vide: B.C. Chaturvedi Vs. Union of India

and others, .

In the light of the principles referred to above, I am constrained to hold that inasmuch as no opportunity was given to the petitioner bafore

passing the impugned order, the same has to be set aside on the ground of violation of natural justice. This is evident from seeing the impugned

order with the naked eye, since even according to the first respondent, the petitioner was discharged from the hospital on 26.7.1996 and order of

removal was passed on the very same day. It is not the case of the first respondent that the conduct and character of the petitioner is bad nor she

had some adverse remarks on earlier occasions. Considering the facts as seen from both the affidavit and counter affidavit and of the fact that the

petitioner is a student of Post-Graduate in Physical Education, the punishment of removal by the first respondent is highly disproportionate to the

alleged misconduct. In those circumstance, I have no hesitation in coming to the conclusion that the order of punishment, namely, removal from the

college by the first respondent ""shocks the conscience of this Court"" and this Court is certainly right in interfering with the impugned order by

exercising the power of Judicial review.

Under these circumstances, the writ petition is allowed and the order of the first respondent dated 26.7.1996 is quashed. There is no dispute

that the petitioner had already paid full fees for the M.P. Ed., course. I hereby direct the respondents to allow the petitioner to join the college as

well as in the Hostel immediately in order to continue her studies. I make it clear that as far as the petitioner''s absence and permissibility to write

ensuing examination, it is open to the respondents to consider the case of the petitioner sympathically and take appropriate decision in accordance

with the rules and procedure. In the circumstance of the case there will be no order as to costs. Consequently W.M.P. No. 21994 of 1996 is

dismissed as unnecessary.