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PETITIONER:

MAHARASHTRA STATE BOARD OF SECONDARY ANDHIGHER SECONDARY EDU

Vs.

RESPONDENT:

K.S. GANDHI AND ORS.

DATE OF JUDGMENT12/03/1991

BENCH:

KASLIWAL, N.M. (J)

BENCH:

KASLIWAL, N.M. (J)

RAMASWAMY, K.

CITATION:

1991 SCALE (1)187

ACT:

Maharashtra Secondary and Higher Secondary Board Act,

1965/Maharashtra Secondary Board Regulation 1977: Sections

4, 18 and 23/Regulations 9(2) (XVIII) and 14--Marksheets

found tampered with--Enquiry held--Tampering with knowledge

of consent of candidates parents or guardians--Students

alone to take part in the inquiry--Advocates, parents or

guardians not allowed_validity of enquiry.

HEADNOTE:

The appellant-Board conducted secondary examinations in

the month of March 1990. During recounting of the marks

obtained by the candidates it was found that moderators

mark-sheets relating to 283 examinees, which included the 53

respondents, had been tampered with. The declaration of

their results was withheld pending enquiry. Several writ

petitions were filed against non-declaration of the results

and the High Court directed the appellant to the expeditious

action to declare the results.

The Board appointed seven enquiry officers to conduct

the enquiry. Show cause notices were issued to the students

informing them of the nature of tampering, the subjects in

which the marks were found tampered with, the marks

initially obtained and the marks increased due to tampering,

and also indicated the proposed punishment, if in the

enquiry it would be found that marks were tampered with the

knowledge or connivance or at the instance of the candidates

or parents or guardians. They were also informed that they

would be at liberty to inspect the documents at the

Divisional Board at Bombay; they were entitled to adduce

documentary and oral evidence at the hearing; they would

also be permitted to cross-examine the witnesses of the

Board, if any; they would not be entitled to appear through

an advocate, and the parents or guardians would be permitted

to accompany the students at the time of enquiry, but they

would not be entitled to take part in the enquiry.

All the candidates admitted that the marks initially

awarded by

773

the examiners had been tampered with in the moderators mark-

sheets; and due to tampering the marks were increased and

the increase was to their advantage. However, they denied

that either they or their parents or guardians were privy to

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the tampering.

The Enquiry Officers submitted their reports holding

that the moderators mark-sheets had been fabricated and

submitted the reports to the Board. The Standing Committee

constituted in this regard considered the records and the

reports and resolved to withhold, as a measure of

punishment, the declaration of the results of their

examinations and to debar the students to appear in the

supplementary examination. The notification to that effect

was published on 31.8.1990 and the report submitted to the

High Court.

The High Court allowed the writ petitions. One Hon'ble

Judge held that the Standing Committee was devoid of power,

and because it did not obtain the approval of the Divisional

Board, the impugned notification was without authority of

law. On merits, the learned Judge held that the Standing

Committee did not apply its mind in the proper perspective

to the material facts, and therefore, the finding that

tampering was done at the instance of the

examinees/parents/guardians was perverse. The other Hon'ble

Judge held that the examinees were not guilty of the mal-

practices and their guilt had not been established.

Before this Court, it was contended on behalf of the

respondents that the Act empowered that Divisional Board to

deal with the use of unfair means at the final examination,

and the Standing Committee was an alien body to the

divisional Board; the students were minors and neither the

parents nor anybody like an advocate was permitted to assist

the students; answers to the questionnaire were extracted

from the students to confess their guilt: no adequate

opportunity was given to the students at the enquiry; the

evidence without subjecting it to cross-examination was of

no value; the Standing Committee did not apply its mind to

the facts, nor recorded reasons in support of its conclusion

that the examinee/parents/guardians were parties to the

fabrication; the Board should establish the guilt of the

examinees beyond all reasonable doubts; the standard of

proof ought to be of a high degree akin to trial in a

criminal case; the test of benefit to an examinee was

preposterous; no evidence was placed on record, nor was it

proved and hence the findings of the Standing Committee were

clearly based on no evidence; the Enquiry Report contained

only conclusions bereft of the statement of facts and

reasons in support thereof; and the order ought to have been

a speaking order preceded by a fair enquiry and the report

must

774

be based on cogent evidence.

On behalf of the Board, it was inter alia contended

that all the examinees admitted in answers to the

questionnaire that tampering was done and it was to their

advantage, and that in view of the admission, the need to

examine any person from the concerned section was obviated.

Allowing the appeals, upholding the notification

subject to modifications, this Court,

HELD: (1) there is no manner of doubt that unfair means

were used at the final Secondary Examination by fabricating

the Moderators' mark-sheet of the examinees, in concerted

manner, admittedly to benefit the students. [782C]

(2) The State Board is empowered to constitute the

Divisional Boards and the Standing Committees. The State

Board is also empowered to make regulations to conduct

examinations and also to deal with the use of unfair means

at the final examination conducted by the Board. The

Divisional Board is empowered to conduct within its area the

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final examination on behalf of the State Board. The

Divisional Board is also empowered to deal with the cases of

unfair means according to the procedure laid down by the

State Board. [783F-G]

(3) The Standing Committee is an executive arm of the

Divisional Board for the efficient and expeditious

functioning of the Board as adumberated under the Act

itself. It is not a foreign body. When the Standing

Education Committee takes the decision its decision is on

behalf of the Divisional Board, and the decision of the

Divisional Board in turn is on behalf of the State Board.

[786E-F]

(4) On a fair and harmonious reading of the relevant

provisions of the Act and the Maharashtra Secondary and

Higher Secondary Education Board, Regulation, 1977 the

Examination Committee of the Divisional Board is itself a

statutory body which acted on behalf of the Divisional Board

and is not a delegate of the Divisional Board. [786H]

State of U.P. v. Batuk Deo Pati Tripathi & Anr., [1978]

2 S.C.C. 102; Kargram Panchayat Samiti & Anr. v. State of

West Bengal & Ors., [1987] 3 S.C.C. 82; Baradakanta Misra v.

High Court of Orissa & Anr., [1976] Suppl. S.C.R. 561 and

Tej Pal Singh (dead) through L.rs. v. State of U.P. & Anr.,

[1986] 3 S.C.R. 429, referred to.

775

(5) The Standing Committee is an integral part of the

Divisional Board and its acts are for and no behalf of the

Divisional Board. Accordingly, the Board must be deemed to

have passed the impugned notification as per the scheme of

the provisions of the Act and the Regulations. Therefore,

the finding of the learned Judge that the Standing Committee

had no power to take the impugned decision, etc. without

approval of the Divisional Board is clearly illegal and

cannot be sustained. [789B-C,F]

(6) While exercising the powers under Article 226 or

Article 136 of the Constitution, the High Court or this

Court, is not sitting as a Court of Appeal on the findings

of facts recorded by the Standing Committee (Domestic

Enquiry Board) nor have power to evaluate the evidence as an

appellate Court and to come to its own conclusions. If the

conclusions reached by the Board can be fairly supported by

the evidence on record then the High Court or this Court

has to uphold the decision, though as appellate Court of

facts, it may be inclined to take a different view. [789C]

(7) Fabrication cannot be done except to benefit the

examinees. The fabricator had done it for reward in concert

with outside agencies. Therefore, the inference from these

facts drawn by the Standing Committee that the

examinees/parents/guardians were responsible to fabricate

the moderators' mark-sheets is based on evidence. [790G]

(8) It is not open to the High Court to evaluate the

evidence to come to its own conclusions. Thereby the High

Court has committed manifest error of law warranting

interference by this Court. [791A]

(9) The Writ Court would not interfere with an order

of educational institution. Therefore, what the writ Court

needs to do is to find whether fair and reasonable

opportunity has been given to the students in the given

facts. [792F]

D.M.K. Public School v. Regional Joint Director of

Hyderabad, A.I.R. 1986 A.P. 204; G.B.S. Omkar v. Shri

Venkateswara University, A.I.R. 1981 A.P. 163.

(10) Assistance of an Advocate to the delinquent at a

domestic enquiry is not a part of the principles of natural

justice. It depends on the nature of the inquiry and the

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peculiar circumstances and facts of a particular case.[792H]

776

(11) The regulations and the rules of enquiry

specifically excluded the assistance of an advocate at the

inquiry. Therefore, the omission to provide the assistance

of a counsel at the inquiry is not violative of the

principles of natural justice. [793A]

(12) The procedure adopted at the inquiry was fair and

just and it was not vitiated by any procedural irregularity

nor was violative of the principles of natural justice. The

absence of opportunity to the parents or guardians, in this

background, did not vitiate the legality or validity of the

inquiry conducted or decision of the Committee. [793G-H]

(13) Unless the rule expressly or by necessary

implications, excluded recording of reasons, it is implicit

that the principles of natural justice or fair play does

require recording of reasons as a part of fair procedure. In

an administrative decision, its order/decision itself may

not contain reasons. It may not be the requirement of the

rules, but at the least, the record should disclose reasons.

It may not be like a judgement. But the reasons may be

precise. [794F]

Union of India v. Mohan Lal Capoor & Ors. [1973] 2

S.C.C. 836; Gurdial Singh Fiji v. State of Punjab & Ors.

[1979 2 S.C.C. 368 and S.N. Mukherjee v. Union of India,

J.T. 1990 (3) S.C. 630, referred to.

(14) The omnipresence and omniscience of the principle

of natural justice acts as deterrence to arrive at arbitrary

decision in flagrant infraction of fair play. But the

applicability of the principles of natural justice is not a

rule of thumb or a straight jacket formula as an abstract

proposition of law. It depends on the facts of the case,

nature of the inquiry and the effect of the order decision

on the rights of the person and attendant circumstances.

[795F]

(15) In the instant case, since the facts are admitted,

the need to their reiteration was obviated and so only

conclusions have been stated in the reports. The omission to

record reasons is neither illegal, nor is violative of the

principles of natural justice. [795H-796A]

Khardah Co. Ltd. v. Their Workmen, [1964] 3 S.C.R. 506;

A.K. Roy etc. etc. v. Union of India & Ors. [1982] 1 S.C.C.

271; Pett v. Grehound Racing Association Ltd., [1968] 2 ALL

Eng. Reports 545; Union of India v. H.C. Goel, [1964] 4

S.C.R. 718; M/s. Bareilly Electricity Supply Co. Ltd. v. The

Workmen & Ors. [1971] 2 S.C.C. 617; Shanti Prasad Jain v.

The Director of Enforcement, [1963 3 S.C.R. 297; Merla

Ramanna v. Nallaparaju & Ors., [1955] 2 S.C.R. 941;

777

Kashinath Dikshita v. Union of India & Ors., [1986] 3 S.C.C.

229; Government Medical Store Depot, Karnal v. State of

Haryana & Anr., [1986] 3 S.C.R. 450; M/s. Kesoram Cotton

Mills Ltd. v. Gangadhar & Ors., [1964] 2 S.C.R. 809; State

of Punjab v. Bhagat Ram, [1976] 2 S.C.R. 370; Gujarat Steel

Tubesl Ltd. v. Gujarat Steel Tubes Mazdoor Sabha,, [1980] 2

S.C.R. 146; Union of India & Ors. v. Mohd. Ramzan Khan, J.T.

(1990) 4 S.C. 456; Vishwa Nath v. State of Jammu & Kashmir,

[1983] 1 S.C.C. 215; Olga Tellis & Ors. v. Bombay Municipal

Corporation, etc., [1985] 3 S.C.C. 545, referred to.

(16) Court should be slow to interfere with the

decisions of domestic tribunals appointed by the education

bodies like universities. [799F]

(17) In dealing with the validity of the impugned order

passed by a University under Article 226 the High Court is

not sitting in an appeal over the decision on this question.

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Its jurisdiction is limited and though it is true that if

the impugned order is not supported by any evidence the High

Court may be justified to quash the order but the conclusion

that the impugned order is not supported by any evidence

must be reached after considering the question as to whether

the probabilities and circumstantial evidence do not justify

the said conclusion. The enquiry held by domestic tribunals

in such cases must no doubt be fair and the students must be

given adequate opportunity to defend themselves and holding

such enquiries, the tribunal must follow the rules of

natural justice. [799F-G]

Board of High School and Intermediate Education U.P. v.

Sagleshar Persad & Ors., [1967] 3 S.C.R. 767 and Bihar

School Examination Board v. Subhas Chandra Sinha & Ors.

[1970] 3 S.C.R. 963. referred to.

(18) The examination committee has jurisdiction to take

decision in the matter of use of unfair means not only on

direct evidence but also on probabilities and circumstantial

evidence. There is no scope for importing the principles of

criminal trial while considering the probative value of

probabilities and circumstantial evidence. The Examination

committed is not bound by technical rules of evidence and

procedure as are applicable to Courts. [801E-F]

Seth Gulabchand v. Seth Kudilal & Ors., [1966] 3 S.C.R.

623; Ghazanfer Rashid v. Board H.S. & I. Edn. U.P., A.I.R.

1970 Allahabad 209; Miller v. Minister of Pensions, [1947]

All. E.L.R. 372; State of Uttar Pradesh v. Chet Ram & Ors.,

[1989] 2 S.C.C. 425, referred to.

778

(19) There is an unmistakable subjective element in the

evaluation of the degree of probability and the quantum of

proof. Forensic probability must, in the last analysis, rest

on the robust common sense and, ultimately, on the trained

institutions of the Judge. [802D]

(20) Strict rules of the Evidence Act, and the standard

of proof envisaged therein do not apply to departmental

proceedings of domestic tribunals. It is open to the

authorities to receive and place on record all the

necessary, relevant, cogent and acceptable material facts

though not proved strictly in conformity with the Evidence

Act, the material must be germane and relevant to the facts

in issue. In grave cases like forgery, fraud, conspiracy,

misappropriation, etc. seldom direct evidence would be

available. Only the circumstantial evidence would furnish

the proof. Inference from the evidence and circumstances

must be carefully distinguished from conjectures or

speculation. [805D-E]

State of U.P. v. Krishna Gopal & Anr.,, [1988] 4

S.C.C. 302; Hanumant v. The State of Madhya Pradesh, [1952]

S.C.R. 1091; Reg. v. Hodge, [1838] 2 Law 227; Bank of India

v. J.A.H. Chinoy, A.I.R. 1950 P.C. 90; Khwaja v. Secretary

of State, [1983] 1 All E.L.R. 765 (H.L.); Sodhi Transport

Co. & Anr. v. State of U.P. & Anr. etc., [1986] 1 S.C.R.

939; Bhandari v. Advocates Committee, [1956] A.E.L.R. 742

(P.C.); Glynn v. Keale University & Anr. [1971] 2 A.E.R. 89

(Ch.D.); In Re: An Advocate, A.I.R. 1989 S.C. 245; Shri

Krishan v. The Kurukshetra University, Kurukshetra, A.I.R.

1976 S.C. 376 and Shivajirao Nilangekar Patil v. Dr. Mahesh

Madhav Gosavi & Ors. & Vice Versa, [1987] 1 S.C.R. 458,

referred to.

(21) The standard of proof is not beyond reasonable

doubt "but" the preponderance of probabilities tending to

draw and inference that the fact must be more probably.

Standard of proof cannot be put in a straight jacket

formula. No mathematical formula could be laid on degree of

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proof. The probative value could be gauged on facts and

circumstances in a given case. The Standard of proof is the

same both in civil cases and domestic enquiries. [805H-806B]

(22) The conclusion reached by the Education Standing

Committee that the fabrication was done at the instance of

either the examinees or their parents or guardians is amply

borne out from the record. The High Court over-stepped its

supervisory jurisdiction and trenched into the arena of

appreciation of evidence to arrive its own conclusion on the

specious plea of satisfying 'conscience of the Court'.

[806G]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 491-544 of

1991.

From the Judgement and Order dated 12.12.1990 of the

Bombay High Court in W.P. Nos. 2646, 2659, 2651, 2649, 2657,

2664, 2648, 2647, 2666, 2658, 2662, 2663, 2667, 2665, 2691,

2693, 2694, 4091, 4098, 4155, 2743, 2789, 2791, 2790, 2740,

4290, 2824, 2858, 2848, 3052, 2863, 2848, 2844, 2843, 2832,

2852, 4846, 4844, 3312, 5101, 5102, 3313, 3207, 3064, 3005,

3335, 3188, 5123, 3514 and 4844 of 1990.

T.R. Andhyarujana, S.N. Wakharia, P.H. Parekh, D.Y.

Chandrachud and Ms. Shalini Soni for the Appellant.

P. Chidambaram, Arun Jaitley, I.R. Joshi, M.N. Shroof,

Ms. Indu Malhotra, Ms. Alka Mukhija, Harish N. Salve, Ms.

Shireen Jain, J.P. Cama, Mukul Mudgal, Mrs. Urmila Sirur,

Dileep Pillai, P. Kesava Pillai, Kailash Vasdev and Vimal

Dave for the Respondents.

The Judgement of the Court was delivered by

K. RAMASWAMY, J. We have heard the learned counsel on

either side and grant special leave to appeal in all the

cases.

The quest for just result to save the precious academic

years to the students while maintaining the unsullied

examination process is the core problem which the facts have

presented for solution.

The appeals arise from the common judgement of a

Division Bench of the Bombay High Court in Writ Petition No.

2646 of 1990 and batch. The appellant for short 'the Board'

conducted secondary examinations in the month of March 1990,

whereat the marks awarded, after the formalities of

valuation by the examiners of the answer-sheets in each

subject; the random counter check by the moderators and

further recounting at the Board, Moderators' mark-sheets

sent to Pune for feeding the computer to declare the results

were found tampered with the appellant. Thereon, admittedly,

it was found that moderators' mark-sheets relating to 283

examinees which include 53 respondents in these appeals were

tampered, in many a case in more than 2 to 8 subjects, and

in few cases in one subject. As a result, 214 examinees have

improved their ranking, which would be in some cases

exceptionally good. The declaration of their results were

780

withheld pending further enquiry and the rest declared on

June 30, 1990. Several writ petitions were filed in the High

Court against non-declaration of the results and the High

Court directed to take expeditious action to declare the

results of the examination within the specified time. The

Board appointed seven enquiry officers to conduct the

enquiry. Show cause notices were issued to the students on

July 30, 1990 informing them of the nature of tampering, the

subjects in which the marks were found tampered with, the

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marks initially obtained and the marks increased due to

tampering, and also indicated the proposed punishment, if in

the enquiry it would be found that marks were tampered with

the knowledge or connivance or at the instance of the

candidates or parents or guardians. They were also informed

that they would be at liberty to inspect the documents at

the Divisional Board at Bombay. They were entitled to adduce

documentary and oral evidence at the hearing. They will also

be permitted to cross-examine the witnesses of the Board, if

any. They would not be entitled to appear through an

Advocate, but the parents or guardians would be permitted to

accompany the students at the time of enquiry, but they are

not entitled to take part in the enquiry. The candidates

submitted their explanations denying the tampering and

appeared before the Enquiry Officers on August 8, 9, 10, 20,

21 and 22, 1990. At the enquiry, each student inspected the

record. A questionnaire was given to be filled in writing.

Every candidate was shown his answer book, marks awarded in

the subject/subjects and the tampered marks in the

moderators' mark sheets. All the candidates admitted that

the marks initially awarded by the examiner were tampered

in the moderators mark-sheets; due to tampering the marks were

increased and the increase was to their advantage. However,

they denied that either they or their parents or guardians

were privy to the tampering. The Enquiry Officers submitted

their reports holding that the moderators mark-sheets have

been fabricated and submitted the reports to the Board. The

Standing Committee constituted in this regard considered the

records and the reports on August 29, 1990, discussed pros

and cons and expressed certain doubts about the possibility

of the candidates/parents/guardians committing fabrication.

They sought for and obtained legal opinion in that regard.

On August 30, 1990 the standing committe resolved to with

hold, as a measure of punishment, the declaration of the

results of their examinations and to debar the 283 students

to appear in the supplementary examination to be held in

October, 1990 and March, 1991. The notification was

published on August 31, 1990 and submitted the report to the

High Court. There-after the High Court considered the cases

on merits. The learned Judges by separate but concurrent

judgements allowed the writ petitions.

781

Sugla, J. held that the Standing Committee of the

Divisional Board under the Maharashtra Secondary and Higher

Secondary Education Board Act of 1965 for short 'the Act'

was devoid of power. It did not obtain the approval of the

Divisional Board, and therefore, the impugned notification

was without authority of law. On merits also it was held

that the Standing Committee did not apply its mind in the

proper perspective to the material facts. Therefore, the

finding that tampering was done at the instance of the

examinees/parents/guardians is perverse. Bharucha, J.

without going into the jurisdictional issue agreed with

Sugla, J. and held that the preponderance of the

probabilities would show that the examinees were not guilty

of the malpractices. The guilt has not been established. The

examinees might well be innocent. Accordingly, the impugned

notification dated August 31, 1990 was quashed. Mandatory

injunction was issued to Board to declare the results of 253

examinees within two weeks from the date of the judgement

and marks were directed to be communicated to the examinees

within a period of two weeks thereafter.

The admitted facts are that the mark-sheets of the

examiners were not tampered. Only the moderators' mark-

sheets were tampered. As per the procedure, after the marks

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were scrutinized at the State Board and found the marks

tallied and to be correct, the moderators' mark-sheets were

sent to the computer at Pune, obviously in sealed packets,

for feeding the results. After the date of recounting the

marks in the office of the State Board at Bombay and before

the d ate of taking them to feed the computer, moderators'

mark-sheets, were tampered. The individual students were put

on notice of the marks they originally obtained and the tampered

marks in the subject/subjects concerned. They were also

given the opportunity to lead evidence on their behalf and

if the witnesses were examined on behalf of the Board they

would be permitted to cross-examine them. They inspected the

records. The questionnaire given to all the examinees at the

enquiry were before us at the hearing including the 53

respondents in the appeals. We have persued the

questionnaire. It is clear from the answers given to the

questionnaire that all the examinees admitted the marks they

originally got and the tampered marks on the moderators'

mark-sheets. They also admitted that the tampering was to

their advantage. Everyone denied the complicity of either of

the candidates or the parents or the guardians. Thus it is

clear that at the enquiry there is no dispute that the

moderators' mark-sheets were tampered, though the

candidates, obviously and quite expectedly, denied their

complicity in that regard. Due to tampering 214 would have

been passed and 69 accelerated their ranking and percentage

to seek admis-

782

sion into prestigious institutions. The racket of large

scale tampering wading through 80,000 moderators' mark-

sheets obviously was done by concerted action. It is clear

that from large body of moderators' mark-sheets, it is not

possible to pick the marks-sheets of the concerned examinee

alone unless there is concerted and deliberate efforts, in

conspiracy with some members of the staff entrusted with the

duties in this regard, for illegal gratification. It is also

not an innocent act of mere corrections as is sought to be

made out by Sri Chidambaram, the learned counsel for the

respondents. We have no manner of doubt that unfair means

were used at the final Secondary Examination held in March

1990, by fabricating the Moderators' mark-sheets of 283

examinees, in a concerned manner, admittedly, to benefit the

students concerned.

The first question, therefore, is whether the Standing

Committee of the concerned Divisional Board has power under

the Act and Regulations to enquire into the use of unfair

means committed at the final examination conducted under the

Act. Section 4 of the Act declares that the State Board of

Secondary and Higher Secondary Education is a body

corporate. Section 18 enumerates the powers and duties of

the State Board. Clause (t) of Sec. 18 empowers the Board to

make regulations for the purpose of carrying into effect the

provisions of the Act. Clause (g) empowers the Board to give

to the candidates certificates after passing final

examination. Clause (m) empowers to recommend measures and

to prescribe conditions of discipline. Clause (w) gives

residuary power to do all such acts and things as many be

necessary to carry out the purposes of the Act. Section 19

gives powers and entrust duties to the Divisional Board of

each division. Clause (f) postulates, "to conduct in the

area of its jurisdiction the final examination on behalf of

the State Board." Clause (1) provides, "to deal with cases

of use of unfair means according to the procedure laid down

by the State Board." Section 23 provides that power of

appointments of the Committees by the State Board. Sub-

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Section (2) thereof provides that:

"The State Board may appoint such other Committees

as it thinks necessary for the efficient

performance of its functions."

Equally sub-section (3) of Sec. 23 empower thus:

"Each Divisional Board shall appoint Committees

designated as follows:

(d) Examination Committee.

783

Sub-Section (5) states thus:

"The constitution of every committee appointed by

the State Board or a Divisional Board, the term of

office of its members and the duties and functions

to be discharged by it shall be such as may be

prescribed."

Section 36 empowers the State Board to make regulations for

the purpose of carrying into effect the provisions of the

Act. Sub-section (2) thereof states that:

"In particular and without prejudice to the

generally of the foregoing power, such regulations

may provide for all or any of the following

matters, namely:

(a) the constitution, powers and duties of the

Committees. appointed under section 23;

........

(f) the arrangement for the conduct of final

examinations by the Divisional Board and

publication of results;

........

(n) any other matter which is to be or may be

prescribed under this Act."

Sub-section (3) provides:

"No regulation made under this section shall have

effect until the same has been sanctioned by the

State Government"

Thus it is clear that the State Board is empowered to

constitute the Divisional Boards and the Standing

Committees. The State Board is also empowered to make

regulations to conduct examinations and also to deal with

the use of unfair means at the final examination conducted

by the Board. The Divisional Board is empowered to conduct

within its area the final examinations on behalf of the

State Board. The Divisional Board is also empowered to deal

with the cases of unfair means according to the procedure

laid down by the State Board.

The State Board made regulations named as Maharashtra

Secondary and Higher Secondary Education Board Regulations

1977 which came into force with effect from July 11, 1977.

Regulation 9(2) (xviii) read thus:

784

"to lay down the procedure and specify the

penalties to be followed by the Divisional Boards,

in dealing with cases of use of unfair means by

persons seeking admission to or appearing at the

examinations conducted under the authority of the

State Board."

Under Regulations 14 the Standing Committee of the

Divisional Board was to be constituted under sub-regulation

(1) thereto. Sub-regulation (2) provides:

"Subject to the provisions of the Act and the

Regulations, the Standing Committee shall have the

following duties and functions, namely--

.....

(x) to deal with cases of use of unfair means by

persons seeking admission to or appearing at the

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final examinations, according to the procedure

laid down by the State Board."

By a resolution passed at the meeting of the State

Board held on October 26, 1985, Exhibit 'z' provides the

procedure for enquiry. Clause 3(f) defines 'misconduct' as

follows:

"Misconduct" shall mean any illegal or wrongful

act or conduct which is alleged to have been

resorted to by any candidate and/or any member of

staff, at, for or in respect of the final

examination and, without prejudice to the

generality of the foregoing, shall include.....

tampering with the documents issued by the Board

or otherwise howsoever changing a candidate's

results in any manner whatsoever and generally

acting in such a manner so as to affect or impede

the conduct of the final examinations and fair

declaration of results thereof."

Clause (4) empowers to conduct an enquiry either suo moto

or on a complaint about any misconduct and the procedure in

that regard so that the Chairman of the Divisional Board may

entrust the enquiry into the alleged misconduct to any

member or members of the Divisional Board other than the

members of the Standing Committee. Clause (5) empowers to

entrust the enquiry. The Enquiry Officer shall give a notice

in writing to the candidate ...... setting forth the nature

of the misconduct alleged against the candidate and call

upon the candi-

785

date to show cause within the time specified therein. It

also empowers to set out the punishment proposed to be

imposed on a candidate. Clause 5(b) gives an opportunity to

the candidates to inspect the relevant documents proposed to

be relied upon at the enquiry. Clause 6 gives opportunity to

the delinquent to submit an explanation; to produce his

witnesses as well as documentary evidence and to be heard in

person, if he/she so desires, but shall not be entitled to

be represented by an Advocate or any other persons. The

delinquent shall be bound to answer truthfully to all

questions relevant to the subject of enquiry that may be put

to him/her by the Enquiry Officer . Clause (10) provides

that the concerned Enquiry Officer shall submit the report

in writing including the findings and the proposed

punishment. Clause 11 provides thus:

"The Standing Committee shall consider the report

and decide the case as it may deem fit. The

Standing Committee will take the decision in the

same meeting."

Clause (12) states thus:

"The Standing Committee shall not be bound to give detailed

reasons in support of its order or decision but shall record

its reasons if it disagrees with the findings of

recommendations of the inquiry officer and under such

circumstances the Standing Committee need not give hearing

to the delinquent concerned."

Other clauses are not relevant for the purpose of this case.

Hence omitted. The Board also in its meeting held on October

26, 1985 framed rules in Appendix 'A' providing under

different heads the nature of the offence and the quantum of

punishment, the relevant item 16 reads thus:

"Tampering with the Secondary/Higher Secondary

School Certificate and/or statement of marks or their copies

and any other documents issued by the Board."

Cancellation of performance of the Examination and

debarring the candidate for five more examinations

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and/or to lodge complaint by the concerned

institution/Authority to Police Department.

Thus a conspectus of these relevant provisions of the Act,

regulations

786

and resolutions clearly cover the entire field of operation

regarding the use of unfair means at the final examinations

specified the competent authorities and the procedure to

deal with the same. The Divisional Board undoubtedly has

been empowered under Sec. 19 of the Act to deal with the use

of unfair means at the final examination. It may be made

clear at this juncture that the Standing Committee consists

of six members of the Divisional Board and none of them

associated with the enquiry. Enquiry Officers are also the

members of the Divisional Board. The regulations provide the

procedure in this regard. It is undoubtedly true as

contended by Shri Chidambaram, that the Act empowers the

Divisional Board to deal with the use of unfair means at the

final examination. But to give acceptance to the contention

that the Standing Committee is an alien body to the

Divisional Board is to do violence to the scheme of the Act

and Regulations. It is seen that under the scheme of the Act

and Regulations the State Board is empowered to constitute

the Standing Committee. Equally the Divisional Board is

empowered to constitute the committees which include the

Examination Committee. The members thereof are only members

of the Divisional Board. Equally the Inquiry Officers are

also the members of the Divisional Board other than the

members of the Education Standing Committee. The Standing

Committee is an executive arm of the Divisional Board for

the efficient and expeditious functioning of the Board as

adumbrated under the Act itself. It is not a foreign body.

Therefore, when the Divisional Board is acting in conducting

the examinations and dealing with the use of unfair means at

the final Examination, it is acting on behalf of the State

Board as its agent. When the enquiry was conducted by some

members and the Standing Committee was taking the decision

thereon, it is acting on behalf of the Divisional Board.

There is no dichotomy but distribution of the functions.

Therefore, when the Standing Education Committee takes the

decision its decision is on behalf of the Divisional Board

to which they are members and the decision of the Divisional

Board to which they are members and the decision of the

Divisional Board in turn is on behalf of the State Board.

This is the integral scheme woven by the Act and

Regulations. Thus under the scheme of the Act, for the

efficient and expeditious function of the concerned Boards;

implementation of the provisions of the Act, and to prevent

use of unfair means at the final examination including

tampering the result of the examination, the Standing

committee is clearly within its power to take final

decision. On a fair and harmonious reading of the relevant

provisions and given their due scope and operational

efficiency, we are of the considered view that the

Examination Standing Committee of the Divisional Board

itself a statutory body acted on behalf of the Divisional

Board and is not a delegate of the Divisional Board.

787

In State of U.P. v. (Batuk Deo Pati Tripathi & Anr.,)

[1978] 2 SCC 102 the respondent was appointed as a Munsif in

the State Judicial Service and was later promoted as a

District Judge. The Administrative Committee of the High

Court reviewed the service and the Committee recommended to

the State Government and communicated to all the Judges of

the recommendation to compulsarily retire the respondent

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from service. The Govt. accordingly retired the respondent

compulsarily which was challenged in a writ petition. A Full

Bench of the Allahabad High Court held that the District

Judge cannot be retired from service on the opinion formed

by the Administrative Committee and all the Judges should

have considered and made recommendation. Accordingly, the

order was set aside. On appeal, the Constitution Bench of

this Court held that Art. 235 of the Constitution provides

control over the District Judges and the Court subordinate

thereto shall be vested in the High Court. It is open to the

High Court to make rules to exercise the power of control

feasible, convenient and effective. Accordingly the High

Court regulated the manner of appointment of a Committee to

screen the service record. Thus, the rules framed prescribed

the manner in which the power has to be exercised. Truely,

it is regulatory in character and the powers were exercised

by the Committee and recommended to the State Govt. to

compulsarily retire the respondent and it amounts to taking

a decision on behalf of the High Court. In (Khargram

Panchayat Samiti v. State of West Bengal & Ors.,) [1987] 3

SCC 82 at p. 84 the facts were that the cattle fairs run by

the two rival organisations would be held on specified

different dates which were impugned in the jurisdiction to

pass such a resolution. The High Court held that the Samiti

was vested with power to grant licence to hold the fair

under Sec. 117 of West Bengal Panchayat Act, 1973. In the

absence of any rules framed in that regard it had no power

to specify dates on which such Hat or fair shall be held.

While reversing the High Court's judgement, this Court held

that the general administration of the local area vested in

the Samiti which had power to grant licences to held fair or

hat under Sec. 117 of the Act. Necessarily it carries with

it the power to supervise, control and manage such a hat or

fair within its territorial jurisdiction. The conferment of

the power to grant a licence for holding of a hat or a fair

includes the power to make incidental or consequential order

for specification of a date on which such a Hat or fair

shall be held. Accordingly, the resolution of the Samiti was

upheld. In (Baradakanta Misra,) v. (High Court of Orissa &

Anr.,) [1976]B Suppl. SCR 561 relied on by Sri Chidambaram,

the facts were that then appel

788

lant while acting as a District Judge, an enquiry into

certain charges was held against him, and was reduced to

Addl. District Magistrate (Judicial). He refused to join the

duty. Fresh proceedings were initiated against him and after

enquiry the High Court dismissed him on the ground that he

was convicted on a charge of a criminal attempt. An appeal

was filed to the Governor and a Writ petition followed

thereafter filed in the High Court were dismissed, while

allowing the appeal filed under Article 136. The scope of

the words "control" and "deal" used in Article 235 were

interpreted at page 576 P&G and held that the word 'control'

includes something in addition to the disciplinary

jurisdiction. The control is with regard to conduct and

discipline of the District Judges and Subordinate Courts and

includes right to appeal against the order of the High Court

in accordance with the condition or service includes an

order passed thereon. The word 'deal' also includes the

control over disciplinary and not mere administrative

jurisdiction. The control which is vested in the High Court

is complete control subject only to the power of the

Governor in the matter of appointment including initial

posting and promotion of the District Judge and dismissal,

removal and reduction in rank of the District Judges within

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the exercise of the control vested in the High Court. The

High Court can hold enquiries, impose punishments other than

dismissal or removal subject, however, to the conditions of

service to a right of appeal, if granted by the conditions

of service, and to the giving of an opportunity of showing

cause as required by Clause (2) of Art. 311 unless such an

opportunity is dispensed with by the Governor acting under

the provisos (b) and (c) to that clause. The High Court

alone could make enquiries into disciplinary conduct. It was

held that the High Court had no jurisdiction to dismiss the

District Judge. Accordingly it was quashed. That ratio has

no application to the facts in this case since the Act,

Regulations and the Resolutions empowered the Divisional

Board and its Standing Committee to deal with use of unfair

means at final examinations including fabrication of

documents issued by the Board as an integral part of the

power of the Divisional Board. Similarly, the ratio in (Taj

Pal Singh (dead) through Lrs) v. State of U.P. & Anr.,

[1986] 3 SCR 429 also is inapplicable to the facts of this

case. In that case, the facts were that while the appellant

was working as the District and Sessions Judge, the Stage

Govt. moved the High Court to his premature retirement. The

Administrative Judge agreed with Government's proposal to

retire the appellant after giving him three months' notice,

the Governor passed the impugned order compulsorily retiring

the appellant. Three days thereafter the Administrative

Committee had approved the opinion of the Administrative

Judge which was transmitted to the Government.

789

Assailing the action of the Government the writ petition was

filed which was dismissed by the High Court, but on appeal

this Court held that the Administrative Judge was not

competent to recommend to the Governor or compulsorily

retire the District and Sessions Judge and the order of the

Government made pursuant thereto was declared illegal. This

Court reiterated that the High Court has power under Art.

235 to make rules for its administrative convenience, but

since the impugned action was not in pursuance of that rule,

the action was not upheld. That ratio also renders little

assistance to the respondents for the reasons that the

Standing Committee, as stated earlier is an integral part of

while exercising the powers, under Art. 226 or Art. 136 of

the Constitution, by the High Court or of this Court, are

not sitting Committees (domestic enquiry body), nor have

power to evaluate the evidence as an appellate Court and to

come to its own conclusions. If the conclusions reached by

the Board can be fairly supported by the evidence on record

then the High Court or this Court has to uphold the

decision, though as appellate Court of facts, may be

inclined to take different view.

The contention of M/s. Chidambaram, Jaitley, Salve and

Cama, the learned counsel for the students, is that the

students were minors; neither the parents nor anybody like

an Advocate was permitted to assist the students. Answers to

the questionnaire were extracted from the students to

confess their guilt. No adequate opportunity was given to

the students at the enquiry. No-one on behalf of the Board

acquainted with the Divisional Board. Accordingly the

Board must be deemed to have passed the impugned

notification as per the scheme of the provisions of the Act

and the Regulations. Therefore, the finding of the learned

Judge Sugla, J. that the Standing Committee had no power to

take the impugned decision, etc. without approval of the

Divisional Board is clearly illegal and cannot be

sustained.

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The question then is whether the candidates or their

parents or guardians are privy to the fraudulent

fabrication. Since we are informed that investigation in

this regard by the Police is in progress, we refrain to

express any final opinion in this regard. Suffice to state

that the records clearly establish that there was a

fraudulent fabrication of the moderators' marks-sheets of

283 candidates including the respondents herein. The

question, therefore, emerges whether the conclusion reached

by the Standing Committee that the fabrication was done at

the behest of either the candidate or the parents or the

guardians to

790

their advantage is based on records. We remind ourselves

that the facts was examined to explain as to how the

moderators' sheets were dealt with after the board screened

the marks, but before taking to Pune to feed the computer,

nor an opportunity was given to cross examine them. The

evidence without subjecting it to cross-examination is of no

value. Enquiry report is not a report in the eye of law. It

does not contain any statement of facts, nor reasons

recorded. It merely records conclusions. When seven members

were appointed it is not expected that all of them would

submit uniform stereo typed reports to the Standing

Committee. The Standing Committee did not apply its mind to

the facts, nor recorded reasons in support of its

conclusions that the examinees/parents/guardians were

parties to the fabrication and the fabrication was done at

their behest. Sri Chidambaram further contended that the

Board should establish the guilt of the examinees beyond all

reasonable doubts. Shri Jaitley, Sri Cama and Sri Salve

though did not support Sri Chidambaram that the standard of

proof must be beyond all reasonable doubt, they argued that

Standard of proof must be a high degree akin to trial in a

criminal case. The Board did not discharge its duty, on the

other hand the Board had presumed that fabrication was done

for the benefit of the examinees. The test of benefit to an

examinee is preposterous. There is no presumption that the

fabrication was done at the behest of either the

examinees/parents/guardians. It must be established by the

Board as of fact that the examinees/parents/guardians were

responsible for fabricating the Moderators' mark-sheets.

Thus no evidence was placed on record, nor wait proved;

that, therefore, the findings of the Standing Committee are

clearly based on no evidence. The learned Judges of the High

Court were justified in reaching the conclusion that the

Board had not established that the fabrication was done at

the behest of the examinees/parents/guardians. This was

resisted by Sri T.R. Andhyarujana, learned counsel appearing

for the Board. It was his contention that all the examinees

admitted in answers to the questionnaire that tampering was

done and it was to their advantage. In view of the

admission, the need to examine any person from the concerned

section was obviated. Fabrication cannot be done except to

benefit the examinees. The fabricator had done it for reward

in concert with outside agencies. Therefore, the inference

from these facts drawn by the Standing Committee that the

examinees/parents/guardians were responsible to fabricate

the moderators' marks-sheets is based on evidence. Proper

enquiry was conducted giving reasonable opportunity to the

candidates. Show cause notices set out the material facts on

which the Board intends to place reliance. The examinees

submitted their explanations and also answered the

questionnaire. On consideration

791

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thereof the Standing Committee had reached the conclusions

of the guilt of the examinees/parents/guardians. This is

based on record. It is not open to High Court to evaluate

the evidence to come to its own conclusions. Thereby the

High Court has committed manifest error of law warranting

interference by this Court.

Art. 51A of the Constitution enjoins every citizen, as

a fundamental duty, to promote harmony and spirit of common

brotherhood among the people, to develop the scientific

temper, humanism and the spirit of inquiry and reform; to

strive towards excellence in all spheres of individual and

collective activity so that the nation constantly

rises to higher levels of endeavour and achievement. Art.

29(2) declares education as fundamental right. The native

endowments of men are by no means equal. Education means a

process which provides for intellectual, moral and physical

development of a child for good character formation;

mobility to social status; an opportunity to scale equality

and a powerful instrument to bring about social change

including necessary awakening among the people. According to

Bharat Ratna Dr. Ambedkar education is the means to promote

intellectual, moral and social democracy. In D.M.K. Public

School v. (Regional Joint Director of Hyderabad,) AIR 1936

(A.P.) 204 one of us (K. Ramaswamy, J.) held that education

lays foundation of good citizenship and a principal

instrument to awaken the child to intellectual and cultural

pursuits and values in preparing the child for latter

professional training and help him to adjust to the

environment.

In nation building activities, education is a powerful

level to uplift the poor. Education should, therefore, be

co-related to the social, political or economic needs of our

developing nation fostering secular values breaking the

barriers of casteism, linguism, religious bigotry and it

should act as an instrument of social change. Education

system should be so devised as to meet these realities of

life. Education nourishes intellectual advancement to

develop dignity of person without which there is neither

intellectual excellence nor pursuit of happiness. Education

thus kindles its flames for pursuit of excellence, enables

and ennobles the young mind to sharpen his/her intellect

more with reasoning than blind faith to reach intellectual

heights and inculcate in him or her to strive for social

equality and dignity of person.

Teacher occupies pride of place next below the parents

as he/she imparts education and disciple the students. On

receiving salary from public exchequer he/she owes social

responsibility and accountability

792

to disciple the students by total dedication and sincere

teaching. It would appear that their fallen standards and

rectitude is also a contributory factor to the indiscipline

among the students. The students, too, instead of devoting

his or her precious time to character building and to pursue

courses of study studiously and diligently in the pursuit

of knowledge and excellence, dissipate their precious time

and many indulge in mass copying at the final examinations

or use unfair means. Some even do not hesitate to threaten

the dutiful invigilators with dir consequences.

In G.B.S. Omkar v. Shri Venkateswara University, AIR

1981 A.P. 163 P.A. Choudhary, J., in the context of finding

the student guilty of mal-practices held, that "I

regretfully note that standards of discipline and education

presently detaining in many Universities in our country

leave a good lot to be desired. They are low and falling

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lower every day. the fall-out of these low standards of

university education on liberal profession is proving to be

nearly catastrophic ..... It is no wonder that some of our

Universities have ceased to be centres of learning and have

grown into battle-fields for warring Caste groups." It was

held that what the Writ Court under Art. 226 need to

consider is whether fair opportunity had been given to a

petitioner and he had been treated squarely and whether the

student had a fair deal with the University. Once the

procedural formalities are complied with, in the absence of

any allegation of mala fide, it must be presumed that the

University had acted bona fide and honestly so long as there

is the evidence justifying the inference arrived at without

there being a serious procedural irregularity. The Writ

Court would not interfere with an order of educational

institution. Therefore, what the writ court needs to do is

to find whether fair and reasonable opportunity has been

given to the students in the given facts.

From this background the question emerges whether the

impugned notification is vitiated by any procedural

irregularity under the provisions of the Act, regulations

and the Resolutions referred hereinbefore or violative of

the principles of natural justice.

The students involved at the examination of secondary

education are by and large minors but that by itself would

not be a factor to hold that the students were unfairly

treated at an inquiry conducted during the domestic inquiry.

Assistance of an Advocate to the delinquent at a domestic

enquiry is not a part of the principles of natural justice.

It depends on the nature of the inquiry and the peculiar

circumstances and facts of a particular case. The

regulations and the rules of enquiry

793

specifically excluded the assistance of an Advocate at the

inquiry. Therefore, the omission to provide the assistance

of a counsel at the inquiry is not violative of the

principles of natural justice. The show cause notice

furnished wealth of material particulars on which the

tampering was alleged to be founded and given the

opportunity to each student to submit the explanation and

also to adduce evidence, oral or documentary at the inquiry.

Each student submitted the explanation denying the

allegation. At the inquiry the questionnaire in the proforma

was given to each student. It is undoubted that the

allegation of fabrication was stated to have been done at

the behest of either the student/parents or guardians and

the parents or guardians were not permitted to participate

in the inquiry. Inspection of documents was given. Their

answer-sheets and marks secured were perused by the students

and were asked to testify whether the answer-books belongs

to him or her and to identify the marks awarded by the

examiner to each answer to the question and the total marks

awarded. It was also asked to verify and state whether the

moderator's mark-sheets were tampered in the concerned

subject or subjects as the case may be. The student could

easily identify and in fact identified his or her answer

books and verified the marks awarded and answered

positively that the marks were fabricated in the moderators'

mark-sheets. The questionnaire was also given to indicate

their educational background in the previous school years

and also the marks they expected at the final examinations.

The need of the assistance of the parents/guardians was thus

absolutely nil. Further question in the proforma was to

ascertain from the students, due to tampering, whether or

not the marks were increased to his or her advantage. It

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could be answered by a mere look at the marks. No outside

assistance is needed. All the students have admitted that

the answer books belong to them. They also admitted the

marks initially awarded by the examiner or added or

subtracted, if any, by the moderators. They also admitted

that the fabrication in the moderators' mark-sheets in the

subject or subjects and the marks were increased to their

advantage. They also denied the complicity of him or her or

of parents or guardians. It is not the case of the

respondents that they were coerced to answer the questions

in a particular manner. It is obvious from the record that

they had prior consultations with the counsel. Thus it could

be seen that the procedure adopted at the inquiry is fair

and just and it is not vitiated by any procedural

irregularity nor is violative of the principles of natural

justice. The absence of opportunity to the parents or

guardians, in this background does not vitiate the legality

or validity of the inquiry conducted or decision of the

Committee.

794

It is true, as contended by Sri Chidambaram and

reiterated by other counsel, that the Inquiry Report does

contain only conclusions bereft of the statement of facts

and reasons in support thereof. As pointed out by Sri Cama

that in some of the reports, the body was written in the

hand writing of one or other person and it was signed by the

Inquiry Officer concerned. But when an inquiry against 283

students was conducted, it is not expected that each Inquiry

Officer alone should write the report under his/her hand. In

the circumstances the Inquiry Officer obviously had the

assistance of the staff in the office to write the body or

the conclusions to his/her dictation and he/she signed the

report. The reports cannot be jettisoned on the ground that

the Inquiry Officer mechanically drew the conclusions in the

reports without applying his/her mind to the facts. The

Enquiry Reports are not, therefore, bad in law.

In (Union of India) v. (Mohan Lal Capoor & Ors.,)

[1973] 2 SCC 836 this court speaking through M.M. Beg, J.,

for a Bench of two Judges held in paragraph 28 at page 854

that the reasons are the links between the materials on

which certain conclusions are based to the actual

conclusions. They disclose how mind is applied to the

subject matter for a decision, whether it is purely

administrative or quasi-judicial. They would reveal nexus

between the facts considered and the conclusions reached..

This view was reiterated in (Gurdial Singh Fijji) v. (State

of Punjab & Ors.,) [1979] 2 SCC 368. Those two cases relied

on by Sri Chidambaram, the rules/regulations required

recording of reasons in support of the conclusion as

mandatory.

Unless the rule expressly or by necessary implications,

excludes recording of reasons, it is implicit that the

principles of natural justice or fair play does require

recording of reasons as a part of fair procedure. In an

administrative decision, its order/decision itself may not

contain reasons. It may not be the requirement of the rules,

but at the least, the record should disclose reasons. It may

not be like a judgement. But the reasons may be precise. In

S.N. Mukherjee v. Union of India, J.T. 1990 (3) SC 630 the

Constitution Bench of this Court surveyed the entire case

law in this regard, and we need not burden the Judgement to

reiterate them once over and at page 643 in paragraph 40 it

held that except in cases where the requirement has been

dispensed with expressly or by necessary implication, an

administrative authority exercising judicial or quasi-

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judicial functions is required to record the reasons for its

decision. In para 36 it was further held that recording of

reasons excludes changes of arbitrariness and ensure a

degree of fairness in the process of decision making. The

said principle would apply

795

equally to all decisions and its applications cannot be

confined to decisions which are subject to appeal, revision

or judicial review. "It is not required that the reasons

should be as elaborate as in the decision of a Court of

law." The extent and nature of the reasons would depend on

particular facts and circumstances. What is necessary is

that the reasons are clear and explicit so as to indicate

that the authority has given the consideration to the points

in controversy. The need for recording reasons is greater

in a case where the order is passed at the original stage.

The appellate or revisional authority, if it affirms such an

order, need not give separate reasons. If the appellate or

revisional authority disagrees, the reasons must be

contained in the order under challenge. Thus it is settled

law that the reasons are harbinger between the mind of the

maker of the order to the controversy in question and the

decision or conclusion arrived at. It also exclude the

chances to reach arbitrary, whimsical or capricious

decision or conclusion. The reasons assure an inbuilt

support to the conclusion/decision reached. The order when

it effects the right of a citizen or a person, irrespective

of the fact, whether it is quasi-judicial or administrative

fair play requires recording of germane and relevant precise

reasons. The recording of reasons is also an assurance that

the authority concerned consciously applied its mind to the

facts on record. It also aids the appellate or revisional

authority or the supervisory jurisdiction of the High Court

under Art. 226 or the Appellate jurisdiction of this Court

under Art. 136 to see whether the authority concerned acted

fairly and justly to meet out justice to the aggrieved

person.

From this perspective, the question is whether omission

to record reasons vitiates the impugned order or is in

violation of the principles of natural justice. The

omnipresence and omniscience of the principle of natural

justice acts as deterrence to arrive at arbitrary decision

in flagrant infraction of fair play. But the applicability

of the principles of natural justice is not a rule of thumb

or a straight jacket formula as an abstract proposition of

law. It depends on the facts of the case nature of the

inquiry and the effect of the order/decision on the rights

of the person and attendant circumstances. It is seen from

the record and is not disputed, that all the students

admitted, the factum of fabrication and it was to his or her

advantage and that the subject/subjects in which fabrication

was committed belong to him or her. In view of these

admissions the Inquiry Officer, obviously did not find it

expedient to reterate all the admissions made. If the facts

are disputed, necessarily the authority or the Inquiry

Officer, on consideration of the material on record, should

record reasons in support of the conclusion reached. Since

the facts are admitted, the need to their

796

reiteration was obviated and so only conclusions have been

stated in the reports. The omission to record reasons in the

present case is neither illegal, nor is violative of the

principles of natural justice. Whether the conclusions are

proved or not is yet another question and would need

detailed consideration.

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In Khardah Co. Ltd. v. Their Workmen, [1964] 3 SCR 506

at p. 514 the ratio that the Enquiry Report must contain

reasons in support of the findings drawn neatly and briefly

is of no assistance for the aforestated facts of this case.

The ratio in A.K. Roy, etc. etc. v. Union of India &

Ors., [1982] 1 SCC 271 that the aid of friend could be taken

to assist the detenu and in Pett v. Grehound Racing

Association Ltd., [1968] 2 All Eng. Reports 545 the right to

appoint an Agent to represent the case of the petitioner are

also of no assistance since the rule expressly excluded such

a representation. The ratio in Union of India v. H.C. Goel,

[1964] 4 SCR 718 also does not help the respondents for the

reason that it is not a case of no evidence and the

conclusions were reached on the basis of the admission made

by the respondents. The ration in M/s. Bareilly Electricity

Supply Co. Ltd. v. The Workmen & Ors., [1971] 2 SCC 617 also

does not apply to the facts of this case for the reasons

that the need to examine the witnesses on behalf of the

Board was obviated by the admissions made by the examinees.

The ratio in Shanti Prasad Jain v. The Director of

Enforcement, [1963] 3 SCR 297 is equally of no assistance to

the respondents since the contention that the circumstances

under which the fabrication of the moderators' mark-sheets

came to be made is not a relevant fact. Therefore, there is

no need to examine the concerned officials in the State

Board to explain as to how and who dealt with the papers

from the time recounting was done in the office till the

moderators' mark-sheets were sent to Pune to feed the

computer. The ratio in Merla Ramanne v. Nallaparaju & Ors,

[1955] 2 SCR 941 and Kashinath Dikshita v. Union of India &

Ors., [1986] 3 SCC 229 also do not assist the respondents

for the reason that the answer books of the concerned

students, the marks awarded by the examiners or addition or

alteration, if any, made by the moderators and fabrication

of the moderators' mark-sheets were admittedly given for

personal inspection to the concerned students and given them

an opportunity to inspect the record and thereafter they

made admission. The further contention of Sri Cama that the

Standing Committee did not deal individually the answers

given by each student and the decision was not based on

evidence is without force as the conclusions are based on

the admissions. Equally the need to consider each case on

merits is obviated by the admission made by every student.

The ratio in (Government medi

797

cal Store Depot, Karnal) v. (State of Haryana & Anr.,)

[1986] 3 SCR 450 at p. 454 that the charges are vague is

also of no assistance to the facts of this case. The ratio

in (M/s. Kesoram Cotton Mills Ltd.,) v. (Gangadhar & Ors.,)

[1964] 2 SCR 809 at p. 825 that the documents must be

supplied at least 48 hours in advance is also of no help to

the respondents in view of the admissions made by the

respondents. The ratio in Tej pal Singh's case (supra) that

mere inspection of the documents will not cure the defect of

procedure or violation of principles of natural justice

also does not apply to the facts of his case. The ratio in

(State of Punjab) v. (Bhagat Ram) [1975] 2 SCR 370 that the

supply of synopsis of the material is not sufficient

compliance with the principle of natural justice, also does

not render any assistance to the respondents. The ratio in

(Gujarat Steel Tubes Ltd.,) v. (Gujarat steel Tubes Mazdoor

Sabha,) [1980] 2 SCR 146 at p. 202 that the conclusion and

the findings are in different hand-writings, which would

show the non-application of the mind to the facts and it

violates the principle of natural justice also does not

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apply to the facts of this case. The ratio in (Union of

India & Ors.) v. (Mohd. Ramzan Khan,) JT 1990 (4) SC 456

also does not apply to the facts in this case as the report

is solely based on the admission made by the examinees and

no new material has been relied upon by the Enquiry

Officers. Undoubtedly, it is settled law that the right to

life includes right to reputation and livelihood and that

the individual as an entity is entitled to the protection

of Art. 21, but in view of the facts of this case the ratio

in (Vishwa Nath) v. (State of Jammu & Kashmir,) [1983] 1 SCC

215 and (Ogla tellis & Ors.,) etc. v. (Bombay Municipal

Corporation & Ors., etc.,) [1985] 3 SCC 545 also do not help

the respondents. The further contention of Sri Salve that

the order must be a speaking order preceded by a fair

enquiry and the report must be based on cogent evidence, and

in this case all the requirements are lacking is also an

argument of despair. Therefore, for the reasons given

earlier, the argument stands rejected.

The next contention that the notification is vitiated

for the reasons that the Standing Committee itself did not

record any reason in support of its conclusion that the

examinees or the parents or the guardians are parties to the

fabrication cannot be sustained for the reason that the

regulation itself postulates that if the Committee disagrees

with the Inquiry Officer then only it is obligatory to

record reasons. Since the Committee agreed with the report,

there is no need, on their part, to record the reasons. The

impugned notification, therefore, is not vitiated by

violation of rules of natural justice.

The crucial question, therefore, is whether the

conclusions

798

reached by the authorities that the examinees, their parents

or guardians were parties to the fabrication and whether

their complicity was established from record and whether the

evidence was sufficient to support such conclusion reached

by the Standing Committee or the Enquiry Officer.

Counsel on either side generated considerable debate on

"the standard of proof" in a domestic enquiry. Mr. Jaitely

placed reliance on paragraph 18 of Vol. 17 of Halsbury's Law

of England, Fourth Edition, at page 16, which reads thus

"To succeed on any issue the party bearing the

legal burden of proof must (1) satisfy a judge or

jury of the likelihood of the truth of his case by

adducing a greater weight of evidence than his

opponent, and (2) adduce evidence sufficient to

satisfy them to the required standard or degree of

proof. The standard differs in criminal and civil

cases. In civil cases the standard of proof is

satisfied on a balance of probabilities. However,

even within this formula variations in subject

matter or in allegations will affect the standard

required; the more serious the allegation, for

example fraud, crime or professional misconduct,

the higher will be the required degree of proof,

although it will not reach the criminal standard.

In criminal cases, the standard required of the

prosecution is proof beyond reasonable doubt.

This standard is also requisite in case of

committal for contempt, and in pension claims

cases. In matrimonial cases it seems that proof

on balance of probabilities is sufficient. Once a

matter is established beyond reasonable doubt it

must be taken for all purposes of law to be a

fact, as there is no room for a distinction

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between what is found by inference from the

evidence and what is found as a positive face."

and contended that the standard of proof of fabrication of

record in a domestic inquiry does not differ from criminal

charge and it must be of a higher degree. In the Board of

High School and Intermediate Education U.P. v. Bagleshar

Persad & Ors., [1967] 3 SCR 767 relied on by Sri Andhyarjuna

the facts were that the appellant Board accepting the

findings of the committee that the respondents used unfair

means in answering the subjects, cancelled the declaration

of the results of the respondent in the High School

Certificate Examination held in 1960. The charges were based

on the facts that in the Hindi paper the

799

respondent gave wrong answers to a particular question in

the same way in which the answers have been given by another

candidate who was having consecutive number. The High Court

held that the findings of the Committee were based on no

evidence and quashed the cancellation of the results. On

appeal, this Court held that the respondent admitted that

the mistakes in answers in the two papers were identical and

he pleaded that he could not say anything as to why this

happened. The proof of charges was inferred that as either

the respondent copied from the answer book of the candidate

or that both of them had copied from any other source.It was

accordingly held that is would amount to the adoption of

unfair means. The High Court, therefore, committed error in

assuming that there is no evidence in proof of it. At page

774 this Court further held that in dealing with question as

to whether the Committee was justified in arriving at its

conclusion against the respondent it would not be reasonable

to exclude from the consideration of the circumstances on

which the whole enquiry came to be held and the general

background of the atmosphere in the examination hall. It was

also further held at page 775 that educational institutions

like the universities set up enquiry committees to deal with

the problem of adoption of unfair means by candidate and

normally it is within the jurisdiction of such domestic

tribunals to decide all relevant questions in the light of

the evidence adduced before them. In the matter of the

adoption of unfair means direct evidence may sometime be

available but cases may arise where direct evidence is not

available and the question will have to be considered in the

light of the probabilities and circumstantial evidence. This

is the problem with the educational-institution. How to face

it, is a serious problem and unless there is justification

to do so, court should be slow to interfere with the

decisions of domestic tribunal appointed by the education

body like universities. In dealing with the validity of the

impugned order passed by the universities under Art. 226 the

High Court is not sitting in an appeal over the decision on

this question. Its jurisdiction is limited and though it is

true that if the impugned order is not supported by any

evidence, the High Court may be justified to quash the

order. But the conclusion that the impugned order is not

supported by any evidence must be reached after considering

the question as to whether the probabilities and

circumstantial evidence do not justify the said conclusion.

The enquiry held by domestic tribunals in such cases must,

no doubt be fair and the students must be given adequate

opportunity to defend themselves and holding such enquiries,

the tribunal must follow the rules of natural justice.

Accordingly, it was held that the appeal was allowed and the

order of the High Court was set aside and

800

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that of the domestic tribunal was confirmed.

In (Bihar School Examination Board) v. (Subhash Chandra

Sinha & Ors.,) [1970] 3 SCR 963 this Court emphasised that

the essence of an examination is that the worth of every

person is appraised without any assistance from an outside

source. The academic standards require that the authority's

appreciation of the problem must be respected. A full-

fledged judicial inquiry was not required. It is not

necessary to conduct an inquiry in each individual case to

satisfy itself who are the candidates that have adopted

unfair means when the examination as whole had to go. It was

further held at p. 968 E to H that "while we do not wish to

whittle down the requirement of natural justice and fair-

play in case where such requirement may be said to arise, we

do not want that this court should be understood as having

stated that an enquiry with a right to representation must

always precede in every case, however, different. The

universities are responsible for their standard and conduct

of the examination. The universities are responsible for

their standard and conduct of the examination. The essence

of the examination is that the worth of every person is

appraised without any assistance from an outside source. It

cannot be held that a detailed quasi-judicial enquiry with

right to its alumini to plead and lead evidence, etc. is

preceded before the result are withheld or examinations

cancelled. If there is sufficient material on which it could

be demonstrated that the Authority was right in its

conclusion that the examination ought to be cancelled then

academic standards require that the Authority's appreciation

of the problem must be respected. It would not be for the

courts to say that we should have examined all the

candidates or even their representatives with a view to

ascertaining whether they had received assistance or not. To

do this, would encourage indiscipline, if not also prejury.

It is true as stated by Sri Chidambaram that the above ratio

was laid in the context of the cancellation of examination

of the entire centre. But the general principles must be

kept in view while dealing with the problem faced by the

academic institutions.

In (Seth Gulabchand) v. (Seth Kudilal and Ors.,) [1966]

3 SCR 623 this Court held that there is no difference

between cases in which charges of a fraudulent or criminal

character are made and cases in which such charges are not

made. While striking the balance of probability, the court

would keep in mind the presumption of honesty and innocence

or the nature of the crime or fraud charged. The rules

applicable to circumstantial evidence in criminal cases

would not apply to civil cases. The ordinary rules governing

civil cases of balance of probabilities will continue to

apply.

801

In (Ghazanfar Rashid) v. (Board, H.S. & I. Edn. U.P. &

Ors.,) AIR 1970 Allahabad 209 a full Bench, speaking through

ours learned brother K.N. Singh, J. (as he then was) dealing

with the standard or proof of the charge of use of unfair

means at the examination, it was held that it was the duty

of the Examination Committee, etc., to maintain purity of

examination and if examinee is found to have used unfair

means at the examination, it is the duty of the Examination

Committee to take action against the erring examinees to

maintain the educational standard. Direct evidence is

available in some cases but in a large number of cases,

direct evidence is not available. In that situation the

Examination Committee as of necessity to rely on

circumstantial evidence which may include the answer given

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by the examinee, the report of the Superintendent of the

centre, the invigilator and the report of the experts and

other attending circumstances. The Examination Committee, if

relies upon such evidence to come to the conclusion that the

examinee has used unfair means in answering questions then

it is not open to the High Court to interfere with that

decision, merely because the High Court may take a different

view on re-assessment of those circumstances. While it is

open to the High Court to interfere with the order of the

quasi-judicial authority, if it is not supported by any

evidence or if the order as passed in contravention of the

statutory provisions of the law or in violation of the

principles of natural justice, the court has no jurisdiction

to quash the order merely on the ground that different view

could possibly be taken on the evidence available on the

record. The Examination Committee has jurisdiction to take

decision in the matter of use of unfair means not only on

direct evidence but also on probabilities and circumstantial

evidence. There is no scope for importing the principles of

criminal trial while considering the probative value of

probabilities and circumstantial evidence. the Examination

Committee is not bound by technical rules of evidence and

procedure as are applicable to Courts. We respectfully agree

with the ratio.

In Miller v. Minister of Pensions, [1947] All Eng. Law

Reports 372 at p. 374 Denning J., as he then was, reiterated

that the evidence against the petitioner must have the same

degree of cogency as is required to discharge a burden in a

civil case. It must carry a reasonable degree of

probability, but not so high as is required in a criminal

case. If the evidence is such that the tribunal can say: "We

think it more probable than not the burden is discharge but,

if the probabilities are equal, it is not discharged."

802

In State of Uttar Pradesh v. Chet Ram & Ors., [1989] 2

SCC 45 relied on by Sri Chidambaram, this Court dealt with

the proof of guilt of the accused at a criminal trial. This

Court held that when two views are plausible, the view being

taken must have some content of plausibility in it and

without the same, the other view cannot be countenance in

law as a plausible alternative. It must be remembered that

at a criminal trial the burden of proof is always on the

prosecution. It must establish the guilt of the accused

beyond all reasonable doubts. If there exist a plausible

alternative view, its benefit must be extended only to the

accused and not to the prosecution. Therefore, the ratio

therein is inapplicable to a proceeding either in the civil

case or in an enquiry before a domestic tribunal. State of

U.P. v. Krishna Gopal & Anr., [1988] 4 SCC 302 at p. 314

also relates to criminal trial. In paragraph 26 in assessing

the evidence adduced by the prosecution, this Court laid

that the concept of probability, and the degrees of it,

cannot obviously be expressed in terms of units to be

mathematically enumerated as to how many of such units

constitute proof beyond reasonable doubt. There is an

unmistakable subjective element in the evaluation of the

degree of probability and the quantum of proof. Forensic

probability must, in the last analysis, rest on the robust

common sense and, ultimately, on the trained institutions of

the Judge. In evaluating the circumstantial evidence in

Hanumant v. The State of Madhya Pradesh, [1952] SCR 1091 at

p. 1097 the Court approved the statement of Baron Alderman

in Reg v. Hodge, [1988] 2 Law, 227 that:

"The mind was apt to take a pleasure in adapting

circumstances to one another, and even in

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straining them a little, if need be, to force them

to form parts, of one connected whole; and the

more ingenious the mind of the individual the more

likely was it, considering such matters, to over

reach and mislead itself, to supply some little

link that is wanting, to take for granted some

fact consistent with its previous theories and

necessary to render them complete."

It was held that in evaluating the evidence of

circumstantial nature it is the duty of the prosecution

that all the circumstances must be fully established

circumstances should be consistent only with the hypothesis

of the guilt of the accused. This standards of proof also is

not relevant not to be extended to consider the evidence in

an inquiry by the domestic tribunal. The ratio in (Bank of

India v. J.A.H. Chinoy,) AIR 1950 PC 90 that the appellate

court would be reluctant to differ from conclusion of the

trial Judge if his conclusion is based on

803

the impression made by a person in the witness box is also

not germane for the purpose of this case. It was laid

therein that inferences and assumptions founded on a variety

of facts and circumstances which, in themselves, offer no

direct or positive support for the conclusion reached, the

right of the appellate court to review this inferential

process cannot be denied. While dealing with proof of fraud

it was held that speculation is not enough to bring home a

charge of fraudulent conspiracy.

In Khwaja v. Secretary of State, [1983] 1 All Eng. Law

Reports 785 (H.L.) dealing with the functions of the

Immigration Authorities and of the Courts, Lord Wilberforce

at p. 7877, laid the law that the allegation that permission

to enter into the country by an immigrant was obtained by

fraud or deceit being of a serious character and involving

issues of personal liberty requires a corresponding degree

of satisfactory evidence. If the Court is not satisfied with

any part of the evidence, it may remit the matter for

reconsideration or itself receive further evidence. It

should quash the detention order where the evidence was not

such as the authority should have relied on or where the

evidence received does not justify the decision reached or,

of course, for any serious procedural irregularity. At p.784

Lord Scarman held that it is not necessary to import in the

civil proceedings of judicial review the formula devised by

Judges for the guidance of juries in criminal cases. The

reviewing court will, therefore, require to be satisfied

that the facts which are required for the justification of

the restraint put on liberty do exist. The flexibility of

the civil standard of proof suffices to ensure that the

court will require the high degree of probability which is

appropriate to what is at stake. The nature and gravity of

an issue necessarily determines the manner of attaining

reasonable satisfaction of the truth of the issue.

Therefore, the civil standard of flexibility be applied to

deal with immigration cases.

In Sodhi Transport Co. & Anr., etc. v. State of U.P. &

Anr., etc., [1986] 1 SCR 939 at p. 954 this Court dealing

with rebutable presumption held that:

"A presumption is not in itself evidence but only

makes a prima facies case for party in whose

favour it exists. It is a rule concerning

evidence. It indicates the person on whom the

burden of proof lies. When presumption is

conclusive, it obviates the production of any

other evidence to dislodge the conclusion to be

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drawn on proof of certain facts. But when it is

rebuttable it only points out the party on whom

804

lies the duty of going forward with evidence on

the facts presumed, and when that party has

produced evidence fairly and reasonably tending to

show that the real fact is not as presumed, the

purpose of presumption is over. Then the evidence

will determine the true nature of the fact to be

established, the rules of presumption are reduced

from enlightened human knowledge and experience

and are drawn from the connection, relation and

coincidence of facts and circumstances."

Bhandari v. Advocates Committee, [1956] All Eng. Law

Reports 742 (PC) is also a case concerning the professional

misconduct. In proof of the charge it was held that it is

the duty of the professional domestic tribunal investigating

the allegation to apply a high standard of proof and not to

condemn on a mere balance of probabilities. In Glynn) v.

(Keele University & Anr., [1971] 2 All Eng. Law Reports, 89

(Chancery Division) relied on by Sri Salve, the question

arose whether failure to give an opportunity to the students

before the suspension is violative of the principles of

natural justice. It was held that the student did not deny

commission of the offence, therefore, it was held that the

student suffered no injustice by reason of the breach of the

rules. Further while dealing with the scope of the inquiry

by the domestic tribunal, it was held that the society is

charged with the supervision and upbringing of the pupil

under tution, be the society, a university or college or a

school. Where this relationship exists it is quite plain

that on the one hand in certain circumstances the body or

individual acting on behalf of the society must be regarded

as acting in a quasi-judicial capacity-- expulsion from the

society is the obvious example. On the other hand, there

exists a wide range of circumstances in which the body or

individual is concerned to impose penalties by a way of

domestic discipline. In those circumstances the body or

individual is not acting in a quasi-judicial capacity at all

but in a ministerial capacity, i.e. in the performance of

the rights and duties vested in the society as to the

upbringing and supervision of the members of the society. No

doubt there is a moral obligation to act fairly, but this

moral obligation does not, lie within the purview of the

court in its control over quasi-judicial acts. The ratio

relied on by Shri Salve, far from helping the respondents,

is consistent withour view. The ration in In Re: An Advocate

AIR 1989 SC 245 also concerned with professional misconduct

of an Advocate and higher standard of proof of the charge of

misconduct was insisted upon. Equally so in Shri Krishan v.

The Kurukshetra University, Kurukshetra., AIR 1976 SC 376.

These decisions relied on by Sri Jaitley also do not assist

us.

805

The contention of Sri Cama placing any reliance on

Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi &

Ors. and vice versa, [1967] 1 SCR 458 that the Vice-

chancellor would not have done what he did except with the

instructions of the Chief Minister who was to be benefitted

by getting his daughter passed in M.D. was not accepted by

this Court and that it was further contended that the

benefit test is preposterous one and the preponderence of

probabilities is not possible to be deduced from the test,

does not appear to be sound. This Court noted that the Chief

Minister was not prepared, as suggested by the Division

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Bench, to face an inquiry and that, therefore, substituted

to the findings of the Division Bench, in the penultimate

paragraph of the judgment that the court would be cognizant

of the steep decline of public standards, public moral and

public morale which have been contaminating the social

environment and emphasised that "where such situation cry

out the Court should not and cannot remain mute and dumb"

and it is necessary to cleanse public life.

It is thus well settled law that strict rules of the

Evidence Act, and the standard of proof envisaged therein do

not apply to departmental proceedings or domestic tribunal.

It is open to the authorities to receive and place on record

all the necessary, relevant, cogent and acceptable material

facts though not proved strictly in conformity with the

Evidence Act. The material must be germane and relevant to

the facts in issue. In grave cases like forgery, fraud,

conspiracy, misappropriation, etc. seldom direct evidence

would be available. Only the circumstantial evidence would

furnish the proof. In our considered view inference from the

evidence and circumstances must be carefully distinguished

from conjectures or speculation. The mind is prone to take

pleasure to adapt circumstances to one another and even in

straining them a little to force them to form parts of one

connected whole. There must be evidence direct or

circumstances to deduce necessary inference in proof of the

facts in issue. There can be no inferences unless there are

objective facts, direct or circumstantial from which to

infer the other fact which it is sought to establish. In

some cases the other facts can be inferred with as much

practical as if they had been actually observed. In other

cases the inferences do not go beyond reasonable

probability. If thee are no positive proved facts, oral,

documentary or circumstantial from which the inferences can

be made the method of inference fails and what is left is

mere speculation on conjecture. Therefore, when an inference

of proof that a fact in dispute has been held established

there must be some material facts or circumstances on record

from which such an inference could be drawn. The standard of

proof is not proof beyond reasonable doubt

806

"but" the preponderance of probabilities tending to draw an

inference that the fact must be more probable. Standard of

proof cannot be put in a straight Jacket formula. No

mathematical formula could be laid on degree of proof. The

probative value could be gauged from facts and circumstances

in a given case. The standard of proof is the same both in

civil cases and domestic enquiries.

From this legal setting we have to consider whether the

inference deduced by the Education Standing Committee that

the fabrication of moderators' mark-sheets was done at the

behest of either the examinee or the parent or guardian is

based on the evidence on record. It is already found that

the examinees admitted the forgery of their concerned

moderators' mark-sheets resulting the increase of marks to

their advantage. The fabrication of the moderators 'mark-

sheets was done after the scrutiny by the concerned

officials in the office of the State Board at Bombay and

before the moderators' mark-sheets were taken out to Pune to

feed the computer. Why one is expected or interested to wade

through eighty thousand moderators' marks-sheets to locate

only the 283 examinees mark-sheets and add marks by

fabrication? Unless either the examinee or parent or

guardian approached the fabricator; given the number and

instructed him/them to fabricate the marks, it would not be

possible to know their number to fabricate. The act of

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fabrication is an offence. Merely it was done in one

subject or more than one makes little difference. Its

gravity is not mitigated if it is committed in one subject

alone. This is not an innocent act or a casual mistake

during the course of performance of the official duty as is

sought to be made out. It was obviously done as a

concerted action. In view of the admitted facts and above

circumstances the necessary conclusion that could unerringly

be drawn would be that either the examinee o r the parent or

guardian obviously was a privy to the fabrication and that

the forgery was committed at his or her or parent's or

guardian's behest. It is, therefore clear that the

conclusion reached by the Education Standing Committee that

the fabrication was done at the instance of either the

examinees or their parents or guardians is amply borne out

from the record. The High Court in our view over-stepped is

supervisory jurisdiction and trenched into the arena of

appreciation of evidence to arrive its own

conclusions on the specious plea of satisfying 'conscience

of the court'.

The question then is whether the rules relating to

mode of punishment indicated inthe Appendix 'A' to the

resolution are invalid. We have given our anxious thought to

the contention and to the view of the High Court. In our

view the punishments indicated in

807

the last column is only the maximum from which it cannot be

inferred that it left no discretion to the disciplinary

authority. No axiomatic rule can be laid that the rule

making authority intended that under no circumtances, the

examination Committee could award lesser penalty. It depends

on the nature and gravity of the misconduct to be dealt with

by the disciplinary authority. In a given case, depending on

the nature and gravity of the misconduct lesser punishment

may be meted out. So by mere prescription of maximum penalty

rules do not become invalid.

We have no hesitation to conclude that when the

evidence justified the examination Standing Committee to

record the finding that the examinees, parents or guardians

are parties to the fabrication, it is not open to the High

Court under Art. 225 to itself evaluate the evidence and

to interfere with the finding and to quash the impugned

notification. This Court under Art. 136 has to correct the

illegalities committed by the High Court when it exceeded

its supervisory jurisdiction under Art. 226. In view of the

fair attitude adopted by the counsel for the Board, it is

not necessary to go into the question of quantum of

punishment.

In the light of the above finding, normally the appeals

are to be allowed, the judgement of the High Court is set

aside and the impugned notification dated August 31, 1990

upheld in toto. But we modify the High Court's order as per

the directions given in our order dated January 30, 1991,

wherein we accepted the signed statement by the counsel for

the Board without prejudice to their contention and directed

the Board (a) to allow all the candidates referred to in the

Notification of August 31, 1990 to appear at the S.S.C.

examination to be conducted in March, 1991 by the Board; and

(b) to declare the untampered results of nine named

candidates therein. The failed candidates covered by the

notification and willing to appear in ensuing examination of

March 1991, there applications will be accepted if the same

are submitted on or before 13th February, 1991 through Heads

of their respective schools. So far as the other candidates

are concerned, their results shall not be declared, but they

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will be permitted to appear in the ensuing examination of

the Board to be held in March, 1991 in case their

applications are received before 13th February, 1991,

through Heads of their respective schools. In this regard

the Board shall inform all the concerned schools and will

also give due publicity in the two local newspapers within 3

days. The Board was further directed to consider the cases

of such candidates out of 283 who are similar to the nine

named candidates other than respondent

808

No. 17, Deepa V. Agarwal and in their cases also the

untampered result shall be declared on or before 6th

February, 1991 and we are informed that results of 18 more

candidates were declared.

The notification dated August 31, 1990 is upheld

subject to above modification and shall be operative between

the parties. Before parting with the case we impress upon

the appellant to have indepth investigation made

expeditiously, if need be, with the assistance of

C.B.C.I.D., of the racket of fabrication and bring the

culprit to justice.

The appeals are allowed accordingly, but in the

circumstances parties are directed to bear their own costs.

R.S.S. Appeals allowed.

809