S.N.Srivastava - (1.) -Impugned herein is the notice dated 10.6.2005 issued under the signatures of Asstt. Kul Sachiv (Confidential) Chhatrapati Sahuji Maharaj University, Kanpur Nagar (hereinafter referred to as the University) served to the petitioner listing therein the charge that the petitioner had used unfair means in the course of attempting the answers of question paper No. III (Economics) while appearing in B.A.III year examination and further that one printed piece of paper was seized from his possession.
(2.) IT would transpire from the record that reply to the aforesaid notice was submitted on 20.9.2005 by the petitioner but result of the aforesaid examination was not declared and hence, the present petition came to be instituted seeking the relief that respondent No. 2 be directed to declare result of the petitioner of B.A. 3rd year examination conducted in the year 2005. This Court, by means of order dated 10.11.2005 granted one month's time to produce relevant record attended with the direction to also file counter affidavit. Sri Neeraj Tiwari, appearing for the University, filed counter affidavit today and also supplementary counter affidavit. Alongwith the supplementary counter affidavit, the learned counsel has also filed copy of order dated 25.7.2005 by which the Asstt. Registrar issued a letter informing that petitioner's result of B.A. Part III conducted in the year 2005 was cancelled further informing that he has been permitted to re-appear in examination to be held in the year 2006. Learned counsel for the petitioner repudiated the contention that copy of order-dated 25.7.2005 was ever communicated or served to the petitioner by the Asstt. Registrar concerned at the same time stating that the said letter has, for the first time, seen the light of the day today through the supplementary counter affidavit filed today. The original record as demanded by the order aforestated, was produced by Sri Neeraj Tiwari, learned counsel for the University before this Court today. Learned counsel for the petitioner canvassed that as a matter of fact no charge-sheet was served to the petitioner although it is claimed to have been issued by the office and further that subsequently, the petitioner obtained duplicate charge-sheet. It is further canvassed that the charges levelled against the petitioner as contained in the notice are scrappy, nebulous and vague inasmuch as it does not disclose in specific terms that the alleged offending printed material had any nexus to the alleged copying while attempting Economics paper No. III or that it was ever seized from the possession of the petitioner or from any place easily accessible to the petitioner. The learned counsel quipped that the petitioner never used any unfair means in the examination nor any offending material was found from his possession in the examination hall and lastly, it has been submitted that the charges levelled against the petitioner do not stand substantiated from any material on record. The learned counsel also canvassed that the entire procedure followed by the University in the matter of use of unfair means by the petitioner smacks of mechanical exercise of power without any application of mind. Per contra, Sri Neeraj Tiwari, learned counsel appearing for the University contended that although it has not been stated in so many words in the charge-sheet whether mutilated printed paper had any nexus to the same subject or that it was used for the said purpose but it is amply eloquent from the record that the petitioner made use of the offending paper for copying in the said examination. The learned counsel also drew attention to the fact that the Unfair Means Committee examined the materials and in the ultimate analysis found the petitioner guilty of using unfair means in the examination.
(3.) I have bestowed my anxious consideration upon the arguments advanced across the bar and have also scanned very closely the materials on record. I have also been taken through the finding of the Unfair Means Committee. As stated supra, the charge listed out against the petitioner was that he used unfair means or attempted to use the unfair means for copying. There is nothing clinching in the finding recorded by the Committee that the petitioner either used or attempted to use the unfair means in the examination while attempting Economics paper No. III. The committee has drawn a presumption without any valid justification that petitioner might have used materials which amounts to using the unfair means in the examination on the basis of alleged recovery of a torn half-page printed piece of paper which has not been proved to have been found from the possession of the petitioner. I have searched the entire record and there is nothing on record that the offending material was found or recovered from the actual possession of the petitioner or it was found either from the desk or from a place easily accessible to him near the desk where the petitioner was sitting while writing the answers. It is also worthy of notice here that there is no shade of allegation either in the charge-sheet or anywhere else in the entire record that the petitioner had made use of torn printed paper or any other offending paper for copying or he attempted to make use of the offending piece of paper or that during the course of examination, he was caught inflagrante delicto by the invigilator or any member of the flying squad. Yet another circumstance worthy of notice in this case is that the torn piece of paper alleged to have been recovered from the possession of the petitioner did not bear signature of the petitioner. In the circumstances it makes sense that in case offending piece of paper had been recovered from the possession of the petitioner, the signature of the petitioner must have been obtained thereon. I have every reason to believe that the petitioner in attempting any of the questions did not appropriate for copying any offending piece of paper. There is nothing in the charge-sheet that the petitioner could have used the material in examination found from his possession. Another aspect worthy of notice here is that though charge-sheet is claimed to have been issued by the office but there is no evidence on record that it was ever served to the petitioner and subsequently, the petitioner obtained duplicate charge-sheet from the office containing charges against him and submitted his explanation which it would further appear from the record was not taken into reckoning by unfair means committee and further that the reasons recorded are not persuasive that offending piece of paper had been used in attempting the questions. It is also not clear as to from what place, the offending piece of paper was found kept or was recovered. The Court in the above perspective is of the view that charges framed against the petitioner as contained in the notice are vague, nebulous and hazy and have not been framed with the required clarity to show that the petitioner used unfair means or attempted to use unfair means or that the offending piece of paper was recovered from his possession. To be precise, the inescapable conclusion is that the no charge-sheet was served to the petitioner and further that subsequently, duplicate charge-sheet was obtained by the petitioner from the office and submitted his reply which was not taken into reckoning. From a close scrutiny of the charge-sheet it would also transpire that the charge-sheet lacked requisite details in absence of which effective reply could not be submitted and any action on the basis of charge-sheet would occasion gross injustice to the petitioner.;