M.L.Bhatt, J. - (1.) THE petitioner has been punished for using unfair means in the examination. It is alleged that the petitioner while appearing in the examination of Shiksha Shastra, I paper on 26 -7 -1990, his answer -book came from outside the examination hall. He was given a show cause notice on 6 -9 -1990. The petitioner is said to have replied the show cause notice on 20 -11 -1990. He denied the allegation. The petitioner had received an order dated 15 -7 -1991 cancelling his B.A. 2nd year examination, 1990 and also debarring him from appearing in subsequent examination of 1991, by the Deputy Registrar (Examination). The petitioner challenges the order on the ground that it is passed without application of mind, mechanically and is based on no evidence. The order is said to be arbitrary, unjust and unreasonable. The order of punishment is also said to be against the principles of natural justice. The petitioner was not given any opportunity of being heard. The petitioner was not shown the impugned answer -book. On the aforesaid grounds, the petitioner seeks to quash the impugned order dated 15 -7 -1991. In reply, filed by the other side, it is averred that the petitioner had brought the answer book from outside the examination hall. This fact is endorsed on the petitioner's answer -book by the Chief Invigilator of the examination centre. The petitioner was given opportunity to show -cause. His explanation was considered and thereafter his examination was cancelled.
(2.) THE impugned order of punishment is issued on the basis of show cause notice issued to the petitioner and on the basis of his reply to the said show cause notice. No further enquiry was held after the petitioner's reply to the show cause notice was received. The petitioner has denied the allegations levelled against him in the show cause notice. If the allegation against the petitioner was proved, his answer book could not be sent for evaluation to the examiner. The answer book which was seized from the petitioner is said to have been brought in the examination hall from outside. Therefore, after its seizure, it was to be treated as the disputed answer -book. Marks could not be awarded to the said disputed answer book. It was appropriate that an enquiry in presence of the petitioner should have been held as to whether the answer -book was brought from outside the examination hall and if on enquiry it was proved that the answer book was procured by the petitioner from outside the examination hall then be was liable to be punished. After denying the charge the statement of the Chief Invigilator of the examination hall who had purportedly seized the answer -book after it was brought to the examination hall, should have been recorded and the petitioner was entitled to cross -examine the Chief Invigilator. If the said invigilator was not available and could not depose during the enquiry then it was imperative for the unfair means Committee to record such evidence as was available with them to prove the charge against the petitioner. The allegation levelled against the petitioner is very serious and it tends to violate the sanctity of the examination. If the allegation was proved to be correct the petitioner cannot be exonerated because that would amount to paying a premium to the petitioner for using unfair means in the examination. At the same time it is to be noted that if the allegation against the petitioner is not proved then he cannot be punished for using unfair means in the examination hall. In order to prove the guilt of the petitioner it was necessary that after receipt of his reply to show cause notice an enquiry was held to ascertain the truth or otherwise of the allegation levelled against him. The allegation levelled against the petitioner cannot be wiped out unless it is enquired into. The proceeding upto the stage of show cause notice and inviting reply thereto are valid. Therefore, these proceedings upto the stage of filing of reply to the show cause notice by the petitioner could not be wiped out.. The proceedings upto that stage are perfectly legal and valid and this judgment does not intend to disturb the proceedings upto the stage of filing of reply by the petitioner to the show cause notice but the later part of the proceeding by which the impugned punishment was imposed on the petitioner cannot be sustained. To find out the truth it is necessary that the respondents are allowed to pick up the thread from the stage of filing of reply by the petitioner to the show cause notice and hold an enquiry in accordance with principles of natural justice against the petitioner. The petitioner is required to be associated with the said enquiry and the respondents are bound to afford an opportunity of being heard to the petitioner during such enquiry. It is not permissible for the respondents to punish the petitioner at his back without a proper enquiry having been conducted. The enquiry against the petitioner should conform to the principles of natural justice.
(3.) THE decision after conclusion of the enquiry is likely to affect the petitioner and his civil rights are likely to be impinged, therefore, he be given reasonable opportunity of being heard. The unfair means committee which is clothed with the power to conduct enquiry in the matter of use of unfair means by the students during examination has a trapping of a quasi judicial tribunal which is to decide unfair means cases on evidence. Such evidence is to be recorded in presence of the students who are charged with having used unfair means in the examination or misconducted themselves during the examination. A student who is facing charge of use of unfair means during the examination or who is facing the charge of misconduct during the examination is entitled to be associated with the enquiry when evidence against him is recorded unless such student chooses to remain absent during the enquiry. He may put questions also to the witnesses which cannot be disallowed if in the opinion of the unfair means committee such questions are relevant to arrive at a just decision of the case.;