 No.202 of 2014.){kind=link}
”It is undoubtedly true that the availability of an alternative remedy is not a total bar on exercise of discretionary writ jurisdiction by the High Court. However, in matters of specialized fields such as education and when it comes to the question of maintaining discipline and elimination of malpractice, the consideration by the appellate forum at the first instance is always of considerable importance. The Courts normally, therefore, do not permit the aggrieved party to sidestep such alternative remedy and encourage excess to writ jurisdiction directly.”
The Tripura High Court made the above observation on Tuesday while disposing of an appeal filed by the Tripura University and its authorities challenging the judgment dated September 6, 2018 passed by the learned Single Judge in W.P. (C) No.202 of 2014.
The petitioner was a judicial officer in the district judiciary. In 2013, with the “no objection” from the High Court, the petitioner joined the Ph.D programme in Law with Tripura University as a part-time candidate. As part of the said course, the petitioner had to clear written examinations. On 19.02.2014, the petitioner appeared in Paper-III of Ph.D Course Work Examination, 2014. According to the University authorities, during such examination, the petitioner was caught red handed writing answers from a slip which he was carrying. This happened when Professor Satyadeo Poddar, the Coordinator of Examination, during his invigilating rounds, noticed the said malpractice being committed by the petitioner.
This incident was followed by a Notice of Expulsion issued by the University on the same day. As a result, the petitioner was not allowed to appear in Paper-IV for which examination was conducted on 21.02.2014. On account of the issuance of Expulsion Notice, the petitioner was placed under suspension on 20.02.2014.
The authorities issued a notice on 03.04.2014 to the petitioner asking him to appear before the Disciplinary Committee of the Tripura University on 09.04.2014 in connection with the allegation of malpractice. On 03.04.2014, the petitioner was heard in person by the Disciplinary Committee which consisted of 5 members and was headed by Professor Anjan Kumar Ghosh, the Vice-Chancellor, as the Chairman.
According to the petitioner, the Expulsion Notice dated 19.02.2014 was never served on him. No material was supplied to the petitioner about the alleged malpractice before or even during his appearance before the Disciplinary Committee. The petitioner, thereafter, had made a representation to the Vice-Chancellor about the illegal action taken against him. Since there was no response, the petitioner approached the High Court.
Before the learned Single Judge, on behalf of the petitioner, it was argued that the University had not followed the principles of natural justice before handing down the punishment to the petitioner. The Expulsion Notice was not served on the petitioner. No material was provided to enable the petitioner to defend himself before the Disciplinary Committee. It was contended that at the relevant time, Executive Council of the Tripura University was not in existence. It was argued that as per Section 47 of the Tripura University Act, 2006, the constitution of the Executive Council would remain valid for a period of three years. The last Executive Council was constituted on 21.01.2011. Thereafter, there was no reconstitution of the Executive Council. Upon completion of three years period, thus, at the relevant time, there was no validly constituted Executive Council in existence.
On behalf of the University, in addition to taking the ground of availability of alternative remedy, the petition was opposed on merits. It was contended that in the sphere of education, in relation to malpractices, the Court’s interference would be minimum. It was pointed out that the Disciplinary Committee in its meeting dated 09.04.2014 had specifically recorded that the sealed answer script which was seized from the petitioner was opened in presence of the members of the Disciplinary Committee which also contained the Expulsion Notice issued by Professor Poddar and a strip/slip of paper which was found attached with the answer script.
The learned Single Judge by the impugned judgment allowed the petition and set aside the Resolution of the Discipline Committee dated 09.04.2014 as well as the Expulsion Notice issued by Prof, Satyadeo Poddar. The learned Judge was of the opinion that there was gross violation of principles of natural justice. It was therefore not necessary to relegate the petitioner to the alternative remedy. It is this decision, the University has challenged in the Appeal.
The division bench of Justice S.G. Chattopadhyay and Justice Akil Kureshi, while considering the appeal that in terms of Sections 37 and 38 of the Tripura University Act, 2006 against the decision of the Disciplinary Committee, the petitioner had a right of appeal which could be filed before the Executive Council. The petitioner had not filed any such Appeal. In the petition, there was no explanation for not filing such an Appeal. It is in the rejoinder that the petitioner raised the ground of non-existence of a validly constituted Executive Council.
“Breach of natural justice is certainly one of the grounds on which the High Court may be persuaded to permit a litigant to bypass the alternative remedy. However, the concept of natural justice is not static, nor can it be placed in a straight jacket. In the field of education and examination malpractices, the courts have recognized much greater latitude on part of the administration. The terms of requirements of natural justice therefore have to be viewed from the angle of the examination malpractice and cannot be put on the same pedestal as if the authorities were holding a disciplinary proceeding against the employee. These issues, therefore, had to be left to be judged by the appellate forum,”
the Court held.
The Court stated that the petitioner as a doctoral student would carry a stigma of having been punished for examination malpractice. This would have other possible ramifications. By terminating the proceedings permanently, the learned Single Judge gave clean cheat to the petitioner without following the full gamut. Even for this reason, we must interfere with the impugned decision.
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“We are of the opinion that the petitioner must approach the appellate authority i.e. the Executive Council against the decision of the Disciplinary Committee. If the petitioner files such Appeal within a period of 30 days from today, such Appeal shall be decided on merits without reference to limitation. We are conscious that under sub-Section (1) of the Section 37 of the said Act, time permitted for filing such Appeal is 10 (ten) days from the date of the receipt of the resolution under challenge, nevertheless due to long time gap in between, the petitioner may require additional time to collect full material for presenting the same before the appellate authority,” the Judgment reads.
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