Benhur V. v. The University of Calicut & Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2021-02-10
Court Decision / Holding: Exts. P3, P6 and P8 memos quashed; writ petition allowed; the University’s cancellation and debarment actions set aside.
Final Disposition: Writ petition allowed; Exts. P3, P6 and P8 memos quashed; the cancellation/debarment action set aside.

Parties to the Case

Appellants / Petitioners

Benhur V. 'Asha Nilayam', Kondotty, Malappuram District

Respondents

The University of Calicut & Others represented by the Registrar, Calicut University
The Vice-Chancellor, University of Calicut
The Controller of Examinations, University of Calicut

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Gilbert George Correya

Counsels for Respondents

• Smt. Jency Paul

Case Synopsis & Summary

The petitioner, Benhur V., challenges Exts. P3, P6 and P8, which cancelled the BBA III Degree Examinations of April 2009 conducted by Calicut University and debarred him from appearing in BBA examinations up to April 2011, along with SMP and enquiry fees. The record shows that the petitioner, a student of EMEA College Kondotty affiliated to Calicut University, faced a notice alleging malpractice during the Final Accountancy paper in 2009. He replied and was given a personal hearing in 2011, but the University proceeded to provisional cancellation and issued memos with conditions, demanding to return original mark sheets. The petitioner argues that due process was violated: no copy of supporting documents or witness statements were provided, no formal charges were framed or served, the hearing occurred after a long delay (and after the petitioner had secured employment), and the procedure under the University Rules (including Rule 4) was not properly followed. The University counters that due process was observed, with a hearing and a show-cause, and that the procedures were duly followed. The High Court, after considering the authorities and facts, holds that the procedure was not properly followed and that the impugned memos were illegal. Exts. P3, P6 and P8 are quashed and the writ petition is allowed, setting aside the cancellation/ debarment actions.

Provisions of Law Cited

Rules and Regulations framed under the University StatuteRule 4

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the University failed to follow due process: he was not furnished with copies of documents or statements of witnesses, no charges were framed and served, the personal hearing was not conducted in a manner revealing a fair and impartial enquiry, and there was an unexplained long delay between the alleged misconduct in 2009 and the memo in 2011, by which time he had already secured employment. He relies on established authorities (Sujatha v. Controller of Examinations) that cancellation of examinations without proper material and notice is illegal, and on other cases cited to show the need for fair procedure and disclosure of materials.

Contentions of Respondents

The University argues that due procedure was adhered to, with notices, a personal hearing, and a show-cause; the Standing Committee on Examinations provisionally decided to cancel the examinations after due consideration; the petitioner was required to remit SMP and enquiry fees and to furnish original mark lists; the actions are in line with the rules and regulations and were not tainted by laches.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sujatha v. Controller of Examinations	2003 (KHC) 214	Positive	Division Bench held that cancellation of examinations without proper material and opportunity was illegal; the present case is squarely covered by that principle, as the petitioner was not provided charges or evidence in a fair manner.
Bharat Ghanshyam Chhabada v. Maharashtra State Board of Technical Education, Mumbai	2015 KHC 5107	Mentioned Only	Cited by petitioner as supportive authority, but not central to the ratio of this judgment; the decision primarily relies on Sujatha.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942** ## **WP(C).No.33467 OF 2011(G)** ## **PETITIONER/S:** **BENHUR V. `ASHA NILAYAM', KIZHISSERI, KUZHIMANNA PO-673 641,MALAPPURAM DISTRICT.** **BY ADV. SRI.GILBERT GEORGE CORREYA** ## **RESPONDENT/S:** **1 THE UNIVERSITY OF CALICUT & OTHERS REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY PO673 635. 2 THE VICE-CHANCELLOR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO-673 635. 3 THE CONTROLLER OF EXAMINATIONS UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO-673 635.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-022021, THE COURT ON 10-02-2021 DELIVERED THE FOLLOWING:** **WP(C).No.33467 OF 2011(G)** **2** ## **JUDGMENT** ## **Dated this the 10th day of February 2021** The petitioner in the instant writ petition challenges Exts.P3, P6 and P8 memos whereby the BBA III Degree Examinations of April, 2009 has been cancelled. 2. The facts leading to the filing of the present writ petition are that the petitioner was a student of BBA (Bachelor of Business Administration) course for the year 2006-2009 at E.M.E.A College of Arts and Science, Kondotty, affiliated to the Calicut University. On completion of the course, the Principal of the college issued Transfer and Conduct Certificate to the petitioner. While so, petitioner received a notice dated 5.12.2009 making an allegation that 'he brought 3 copies of printed materials and tried to copy from it and thereby violated the rules/instructions of the University Examinations while appearing for 3[rd] year B.B.A. Final Accountancy Paper on 6.4.2009'. The aforementioned notice was duly replied on 18.12.2009 by Ext.P4. On the basis of the reply he was afforded an opportunity of personal hearing at University on 15.3.2011 **WP(C).No.33467 OF 2011(G)** **3** vide communication dated 1.3.2011, Ext.P5. On 4.10.2011, Ext.P6, the Vice Chancellor on the recommendation of the standing Committee on examinations provisionally decided to cancel the examinations taken by the petitioner and debarred the petitioner from taking BBA examinations of the University up to April, 2011. He was also directed to remit an amount of Rs.1500/- as SMP fine and Rs.2000/- as enquiry fee and called upon to show cause why the provisional decision should not be confirmed. A detailed reply Ext.P7 was submitted by the petitioner, wherein it was stated that the petitioner was not given any chance to get the copies of the documents, supporting the allegations or the statement of witnesses. Vide communication dated 18.11.2011, Ext.P8 he was directed to forward all the original mark lists and provisional certificate to the office of the 3[rd] respondent. 3. Learned Counsel appearing on behalf of the petitioner submitted that the Rules and Regulations framed under the University statute empowers the Principal of the college/Headmaster of the High School Centre shall immediately after receipt of the report from the Chief Superintendent of the Examination regarding any malpractice committed by a **WP(C).No.33467 OF 2011(G)** **4** particular student examinee, send a detailed report together with materials to the University containing specific charge, however such report was not made available to the petitioner. Similarly Rule 4 stipulates that in case the Enquiry Officer is appointed, he shall frame charges against the student or a copy of such charges together with a statement of facts shall be sent to the student and conduct enquiry in fair and impartial manner. According to the petitioner, no such procedure has been adopted, nor petitioner was given any chance or notice regarding the alleged enquiry. During the course of personal hearing no witness was examined in the presence of the petitioner and thus such hearing was completely an eye wash. The examination was held in 2009, but the memo was issued to the petitioner only on 5.12.2009 with a delay of eight (8) months and till such time, the petitioner had already acquired an employment. 4. In support of the aforementioned contention, learned Counsel for the petitioner relies upon the Division Bench judgment of this Court in **Sujatha Vs. Controller of Examinations [2003 (KHC 214]** and Bombay High Court judgment in **Bharat Ghanshyam Chhabada v. Maharashtra** **WP(C).No.33467 OF 2011(G)** **5** **State Board of Technical Education, Mumbai [2015 KHC 5107]** . 5. On the other hand Smt.Jency Paul, learned Counsel appearing for the University opposed the contentions and submitted that all the procedure has duly been followed. There was no laches on the part of the respondents thus the impugned order is not vitiated in law. 6. I have heard learned Counsel for the parties and appraised the paper books. 7. In **Sujatha's case** (supra) the Division Bench after noticing the facts of the case similar to one in the present case noticed that none of grounds in which the penalty of cancellation of examination and debarring the candidate from appearing from the examination had seen the light of the day. Neither was confronted with any material, much less, the statement of witnesses or of an examiner to form a view of malpractice. In the absence of the same, the action of the Syndicate or University to debar the student from appearing for the examination and cancellation of the examination was found to be illegal and repugnant. The facts, as noticed above, in the instant case would also reveal that petitioner had cleared the examination in April, **WP(C).No.33467 OF 2011(G)** **6** 2017 and after eight (8) months was served with Ext.P3 memo, which was duly replied by Ext.P4. The alleged personal hearing was afforded only in the month of March and after a gap of seven (7) months was served with memo of provisional decision to cancel the examination. The petitioner had categorically replied to the memo dated 4.10.2011, vide Ext.P7 that he was not provided any chance to obtain the copies of documents supporting the allegation or statement of witnesses if any, nor any chance to cross examine any witness. In case the petitioner had indulged into malpractice as has been pointed out by the University, no reasons have been assigned as evident from the memo dated 18.11.2011, Ext.P8, which is extracted herein below: “ Shri. Benhur V. a candidate registered for III BBA Degree Examination Aprial 2009 with Register number EMAGBBAR04 at the EMEA College, Kondotty is directed to forward all original marklists and provisional certificate to this office immediately;” 8. The case of the petitioner is squarely covered by the decision referred (supra), in which it is held that no procedure required was followed for entailing the person much less cancellation of the examination. Thus the impugned action is **WP(C).No.33467 OF 2011(G)** **7** wholly illegal, vitiated and not justified under law. Accordingly, Exts.P3, P6 and P8 memos are quashed. The writ petition stand allowed. ## **Sd/** **AMIT RAWAL JUDGE** **Jm/** **WP(C).No.33467 OF 2011(G)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PROVISIONAL CERTIFICATE DATED 11-06-2009 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE PROVISIONAL CERTIFICATE DATED 11-06-2009 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE TRANSFER AND CONDUCT CERTIFICATE DATED 09-07-2009 ISSUED TO THE PETITIONER BY THE PRINCIPAL, EMEA COLLEGE OF ARTS AND SCIENCE, KONDOTTY.** - **EXHIBIT P4 TRUE COPY OF THE PROVISIONAL CERTIFICATE DATED 11-06-2009 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE MEMO NO.EC.II/3/SMP/2010 DATED 01-03-2011 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P6 TRUE COPY OF THE MEMO NO.EC.II/3/SMP/2010 DATED 01-03-2011 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P7 TRUE COPY OF THE EXPLANATION DATED 17-102011 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE MEMO NO.EC.II/3/SMP/2010 DATED 01-03-2011 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT TO THE PETITIONER**