BOARD OF HIGH SCHOOL & INTERMEDIATE EDUCATION, U P., ALLAHABAD versus GHANSHYAM DAS GUPTA AND OTHERS

J.-This is an appeal on a certificate grant€d by the Allahabad High Court. The brief facts nrcessary for present purpnses are these. The three responde11ts were students of G. S. Hindu Intermediate Colleg<' at Sikandrarao and appearrd at the Intermediate (Commerce) Examinatfon conducted by tho appellant in the year I 954. On June 12, 1954, the result of the examination was publi~hed in llf>WSp·•pcrs and the three respondents passed in the second division. Thereafter they prosecuted further studies. But in Decembe1 l!l54, their fathern and guardians received information from t.he Principal of the G. S. Hindu Intermediate College that th~ Examinations' Committee of the appellant (hereinafter referred to as the Commi· ttee) had cancelled tho result of tho respondents for the examination of l!JM and further that thev had been debarred from appearing at the examination of 1955. Thereupon the respondents filed a write petition in the High Court contending that the Committee had never afforded any opportunity to thl'm to rebut the allegations made against them and that they were never informed about the nature of the unfair means used by them in the said examination and the fir;;t thing they come to know wa8 the resolution of the Committee cancelling their results and dcbaring them from appearing in the examination of l They therefore contended that the;Y were entitled to ap opportunity bein~ afforded to them to meet the ca~e against them of using unfair means at the examination before the appellant took action against them by cancelling their results and debarring them from appearing at the examination of 1955. The procedure thus adopted by the appellant was said to he in violation of the principles of natural justice inasmuch as they were given no opportunity whatsoever tG defend themselves and to show cause against the action contemplated against them. It was further contended that the procedure adopted by the appellant violated the provisions of the U. P. Intermediate Education Act, No. II of 1921 (hereinafter referred to as the Act) and the U. P. Educa· tion Code, and therefore, the resolution cancelling their results and debarring them from appearing in the later examination was without jurisdiction and illegal. They therefore prayed for a proper writ or order oanoelling the resolution of the appellant.

pp. 38–39

The appellant opposed the application and its case was that the respondents had used unfair means at the examination and their cases were reported to the Committee under the Regulations and the Committee had acted under the powers conferred on it under the Act and the Regulations framed thereunder after a thorough inquiry. It was not disputed, however, that no opportunity had been afforded to the respondents to rebut the allegations against them in the inquiry made by the Committee which resulted in the resolution cancelling the results of the examination.

p. 39

A large number of contentions appear to have been urged in the High Court; but we are here only concerned with one of them, namely, whether the respondents were entitled to a hearing before the appellant decided to cancel the results. The contention on behalf of the respondents before the learned Single Judge was that the appellant was under a duty to act judiciall~ iw1d tijerefor\l tl:le respondents should havo been givon. a hearing bcforo any order was passed against them. The learned Single ,Judgo held that no duty was cast on tho Committefl to act judicially and there was no statutory obligation on the Committee to give an opportunity to every cxaminec to be heard; therefore he rejected the petition.

pp. 39–40

The respondent!i then went in appeal which was heared by Dayal and Brijmohan Lall, JJ., who however differed. Brijmohan Lall, J., was of opinion that the Committee was not required to act judicially or quasijudicially when it considered cases of this kind and was acting merely administratively; he nevertheless was of the opinion that. on<> of the rules of natural justice contained in the maxim rtudi altera.m pr1rtem would apply in this caRe, even though the ·Committee was acting administratively. He w•1s therefore in favour of allowing the appeal. Daval .J., a.greed with thl' view of Brijmoh:in Lall, .J., thnt. in the present case no duty cast on the Committee to a<:t judicially and that the action of the Committee wa'" merely administrative. He however did not :igree that the Committee acted in violation of the principles of natural justice inasmuch as it clid not give a hearing to the respondents. He was of the view t.hat as tho Committee was acting merely administrativ,oly it waR not bound to give a hearing, as the maxi1n awli alteram. partem applied only to judicial or quasijudicial tribunals. Tho two learned J11dgcs also differer! on two other P"int~ with whid1 we arc not concerned. Eventnnlly they reforred three questions to be answered by another learned Judge and one of these questions was whether the failure of th~ Committee to provide an opport11nity to the pondents of being heard vit.iated its order, wl1ich waH of an administrative nature.

p. 40

The matter then came uofore a third learned Judge, Agarwala, J. He was doubtful whet~er the view of the Bench that there was no duty cast on the Committee to act judicially in the present case was correct; but as on that matter the two learned Judges were in agreement, he dealt with the case on the basis that the Committee was acting merely administratively. Even so, he came to the conclusion that the respondents were entit.led to a hearing and agreed with the view of Brijmohan Lall, .J. Consequently, the appeal was placed before the Bench again and in accordance with the opi· nion of the third Judge it was allowed. Then followed an application by the appellant for leave to appeal to this court, which was granted; and that is how the matter has come up before us.

pp. 40–41

The main contention on behalf of the appellant is that the High Court was wrong in the view it took that an opportunity for hearing was necessary in this case even though the Committee acted merely administratively. It is contended that wheni. a body is acting merely administratively, it is not necessary that it should give a hearing to a party who might be affected by its decision and that the principles of natural justice, including the maxim, audi alteram partem, apply only to judicial or quasi-judicial bodi'es, i.e., bodies on whom a duty is cast to act judicially. It is submitted that where no such duty is cast on a body and it is acting merely administratively there is no necessity for it to hear the person who might be affected by its order. The respondents on the other hand contend that though the final decision of the High Court is correct, the High Court was not right in holding that the Committee was aoting merely administrati~ vely in a matter of this kind; they contend that comiidering the entire circumstances which operate in c ises of this kind, the High Court should havo held that there was a duty to act judicially and therefore it was necessary to give an opportunity to the respondents to be heard before action was taken a~ainst them. It is sqbmitted that tile mere fact that there was nothing express in the Act or the HPgul:1tions framed thereunder which might make it obligatory for the Committee to call for an explanation an<l to hear the examinees whose cases it 1vas required to enquire into was not wholly determinative of the question whether a duty was cast on the Committee in cases like this to act judicially.

pp. 41–42

The first question therefore which falls for consideration is whether any duty is cast on the Committee under the Act and Regulations to act judicially and therefore it is a quasi·judicial hotly. What constitutes "a quasi-judicial act" was discussed in the l'rodnce of Bombay v. Kusakla.s S. Advani.( The principles have been summarised by Dus, J. (as he was then), at p. 725 in these words:-

p. 42

"The principles, as I apprehend them are: (i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a. claim made by one party under the statute which elaim is opposed by another party anrl to determine tho respective rights of the contesting parties who aro opposed to each other, them is a li8 and prima acie and in the absence of any thing in the statute to the contrary it is the duty of the authority to act judicially and the clccision of the authority is a quasi· judicial

p. 42

act ; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the su bjcct, then, although there are not two parties apart from the a.uthority and tho contest is between the autho· rity proposing t.o do the act and t~o 8~1b­ jcct opposing 1t, tho final doterm111at1on of the authority will yet be a quasi. judicial act provided the a~th.o~ity is required by the statute to act iud1c1ally.

p. 42, margin F

In other words, while the presence of two parties besides the de.ciding authority will prima fac•ie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasijudicial act if the authority is nevertheless

p. 43

required by the statute to act judicially." These principles have been acted upon by this Court in latter rases: see Nagendra Nath Bora v. The Commissioner of Hills Division & Appeals, Assam( Shri Radheshyam Khare v. The State of Madhya Pradesh( Gul/a,palli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation('), and Shivji N athubhai v. The Union of India('). Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the anthority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the , disposal provided the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively:(vide observations of Parker, J. in R. v. Manchester Legal Aid Committee)(•).

p. 43

We must therefore proceed to examine the pro. visions of the Act and tho Regulations framccl thereunder in connection with matters of this kind to d1·tcrmine whether the Committee can be said to have tho duty to act judicially when it deals with cases of examinees using unfair means in examination halls. Under s. 7 of the Act, the Roard cons ti· tutc<l thereunder has inter alia powers to prescribo courses of instruction, to grant diplomas and certi· ficates, to conduct examinations to admit candida· tcs to its examinations to publish the results of its examinations, and to do all such things as may bo requisite in order to further the objects of the Board as a body constitut{)d for regulating and supervising High School and Intermediate education. Under s. l :~, the. Board has power to appoint and constitute variouR committees, including the <~xiiminatious' committctl, anrl under s. 14, the Board can delegate its power< by Regulations to such committets. Section I ii gives power to the Board to make Regulations with i·cspect to the constit•1tion, powers and duties of committees, the conduct of examinations, and all matters which by the Act. may be provid<•d for by !'tegulations. Section 20 gives power to th<i Board and its committeos to make bye-lawR consist1:1.t with the Act and the Rogulations.

p. 44

It will be clear from the above that the .-\ct makes no exprnss provisions as to the powers oft he committees and the procedure to be adopted by them in carrying out their dutie~, which an• left. to b~ provided by Regulation<. and we have tl~orefure to look to th11 l'tegulations framed under s. la t.o >'ee what powcr8 and duties h:we bocn eonferrctl on variou8 committees constituted under the Regula· tions. Section 13 (I) makca it incumbent on the Board to appoint the Committeo and Ch,.p. Vf.of the Recrulations deal~ with the powers and duties of the° Committee. Rule I (I) of Chap. VI with which we a.re ,particularly concerned reaq• 48 follows:- "It shall be the duty of the Examinations' Committee, subject to sanction and control of the Board."

pp. 44–45

x x x

p. 45

"(l) to consider cases where examinees have concealed any fact or made a false statement in their application forms or a breach of ,rules and regulations to secure undue admission to an examination or used unfair means or committed fraud (including impersonation) at the examination or are guilty of a moral offence or indiscipline and to award penalty which may be one or more of the following :-

p. 45

( 1) withdrawal of certificate of having passed the examination ;

p. 45

( 2) cance!latio n of the examination;

p. 45

(3) exclusion from the examination." There is however no provision ii;i Chap .. VI as to how the Committee will carry out the duty imposed on it by r. 1 (1). Further, there is no express provision in the Act or the Regulations casting a duty on the Committee to act judicially when exercising its powers under r. 1 (l); and the question whether the Committee has to act judicially when exercising these powers will have to be deci' ded on an examination of all the circumstances relevant in the matter. At the same time, there is nothing express in the Act from which it can be said that the Committee is not under a duty to act judicially. It is true that there is no procedure provided as to how the Committee will act in exercising its powers under r. 1 ( 1) and it is further true that there is no express provision in that rule requiring the Committee to call for an explanation from the examinees concerned and to hear the examinees whose cases it i~ required to consider. But we are of opinion that the mere fact that the Act or the Regulations do not make it obligatory on the Committee to caU for an explanation and to hear the examinee is not conclusive on the question whether the Committee acts as a quasi-judicial body in excrciRing its powers under r. I (I). Evon though calling for an explanation and hearing: tho examinee may not have been made oxprnssly oblitory by the Act or the Regulations, it is obvious that tho Committee when it proceeds to decide matters covered by r. I (I) will have to depend upon materials placed before it, in coming to its decision. Before the Committee decides to award any penalty it has to come to an objective determination on certain factR and onlv when it comes t-0 t.he conclu- ~ion that those facts.are established that it can pro· ceed to punish the examinee concerned. The facts which the Committee has to find before it takes action are - (i} whether the examinee has concealed any fact or made a false statement in his

pp. 45–46

application form; or (ii) whether the examinee has made a breach · of tho Rules and Regulations to secure

p. 46

undue admission to an examination ; or (iii) whether the cxaminee has used unfair

p. 46

means at the examination ; or (iv) whether the examinee has committed fraud (including impersonation) at the

p. 46

examination ; or (v) whether the examincc is guilty of moral

p. 46

off'enee or indiscipline. Until one or other of the five facts is established before the Committee, it cannot proceed to take action under r. l (I). In order to come to the conclusion that one or other of these facts is established, the Committee will have to depend upon materials placed before it, for in the very nature of things it has no personal knowledge in the matter. Therefore, though the Aet or the Regulationo do not make it obligatory on the Committee to call for an explanation and hear the examinee, it is implicit in the provisions of r. I (1) that the Committee must satisfy itself on materials placed before it that one or other of the facts is established to enable it to take action in the matter. It will not be possible for the Committee to proceed at all unless materials are placed before it to determine whether the examinee concerned has committed some miscon- . duct or the other which is the basis of the action to he taken under r. 1 (1). It is clear therefore that consideration of materials placed before it is necessary before the Committee can come to any decision in the exercise of its powers under r. 1 ( 1) and this can be the only manner in which the Committee can carry out t,he duties impose~ nn it.

pp. 46–47

We thus see that the Committee can only carry out its duties under r. l ( l) by judging the materials, placed before it. It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between the Committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under r. 1 ( 1 ), it seems to us only fair that the examinee against whom the Committee is proceeding should also be heard. The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case will put a serious stigma on the examinee concerned which may damage him in later life. The nature of misconduct which the Committee has to find under r. 1 (I) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the Committee's decision in matters of such seriousness may even lead in some cases to the prosecution of the examinee in courts. Considering therefore the serious effects following the decision of the Committee and the serious nature of the misconduct which may be found in some cast's under r. I (I), it seems to us that the Committee must be held to act judicially in circumstances as these. Though therefore there is nothing express one way or \he other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it and the Rerious effects of the decision of the Committee on the examincA concerned, must lead to the conclusion that a dutv is cast on the Committee to act judicially in this matter particularly as it has to decide objeotiYely certain facts which may seriously affect the rights and careers of examinees, hdore it can take any action in the e:irercise or its power under r. l (I). We are therefore of opinion that the Committee when it exercises its powers under r. J (I) is acting quasijudicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply tu the proceedings before the Committee. This view was taken by the Calcutta High Court in Dipa I'al v. University of Calcutta, (l) and B. C. Das Gupta v. Bijoyranjmi Rakohit, ( in similar circumstances and is in our opinion correct.

pp. 47–48

It is urged on behalf of the appellant that there are a large number of cases which come up before the Committee under r. I (I); and if the Committee is held to act judicially as a quasijudicial tribunal in the matter it will find it impossible to carry on itH task. This in our opinion is no criterion for deciding whether a duty ie cast to act judicially in view of all the circumstances of the case. There is no doubt in our mind that considering the totality of circumstances the Commit.tee has to act judicially when taking action under r. 1 ( 1). As to the manner in which it should givo an opportunity to the examinee concerned to be heard, that is a matter which can be provided by Regulations or Bye-laws if necessary. As was pointed out in Local Government Board v. Alridge, (1) all that is required is that the other party should have an opportunity of adequately presenting his case. But what the procedure should be in detail will depend on the nature of the tribunal. There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature; but where quasi-judicial duties are entrusted to administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee. It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was 11iven to the respondents in this case to give an explanation and present their case before the Committee. We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under r. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was given to the respondents "to put forward their cases before the Committee is correct. We therefore dismiss the appeal. No order as to, in the circumstances.

pp. 48–49

Appeal dismissed.

p. 49