BDIAR SCHOOL EXAMINATION BOARD

SUBHAS CHANDRA SINHA & ORS.

February 25, March 10, 1970.

[M. HIDAYATULLAH, C. J., A. N. RAY AND I. D. DUA, JJ.]

Natural Justice-Evidence of unfair means at examination at a parN• cular centre appGrent--Cancellation of eXIQmination at the centr;:- Whether notice to exa1ninees necessary,

Bihar School Examination Board Act (Bihar Act 7 of 1952) s. 9(3)- Scope of.

Candidates at the Secondary School Examination held in March 1969, appeared at various centres.

The results at all centres were published in July 1969, except those at a particular centre. The tabulators at that centre reported that the percentage of marks and of successful candidates was unusually high ( 80 % or more) . The matter was referred to the

Unfair Means Committee of the Board. A comparison of the aO'\i'er books at that centre showed such a remarkable agreement in the ansvters,

that it was obvious that unfair means were adopted and that the students had assistance from an outside source. The Chairman p3ssed an Order on August 30, 1969, cancelling the examination at the centre and allowing the examinees at the centre to re-appear at the Supplementary Examination in September The action of the Chairman was placed before the 803.t'd

and was approved.

The respondents.· \\'ho \\'ere the examinees at that centre movei.! the High Court under Art. 226 and the High Court quashed the rder cf tl.te Board and ordered publication of the results of that centre.

In appeal to this Court,

HELD : (I) There was enough material for the Chairman and the Board for taking action without .any complaint from anybody of the use di unfair means. [966 E-FJ

(2) There was no reason for __ \vithholding the publication of r.!3trJts of other centres which \vere notunder suspension. [966 F]

(3) Under s. 9(3) of the Bihar School Examination Board Act. in an emergency, the powers of the Chairman are co-terminus with thOSI! of the Board and he can take action himself and later repdrt it to the Board.

Therefore, the order of the Chairman in the present case \Vas not in::i'11 petent. [966 C-F; 967 A]

( 4) The essence of an examination is that the worth of every p-; rson is appraised without any assistance from an outside source. If at a C':!Dtre the whole body of students received assistance and managed to s.Jurce success at a high percentage, when at other centres, the average \Vas only

50%, the University or the Board ould cancel the exan1ir:.;:i, tion as tf whole; and if there was sufficient material on which it could be demonstrated that the Authority was right in its conclusion that the cxami .. nation as a whole \vas vitiated then academic standards require th.lt the Authority's appreciation of the problem must be respected. To make ouch a decision depend upon a full-fledged judicial inquiry would hold up the functioning of such autonomous bodies as lJniversities and School Beards.

!967 G-H; 968 E-HJ

Jn the present case, no principle of natural justice was violated and the1e was no need to give the examinees an opportunity to contest the conclusion, because, the evidence was plain and transparent, and the Beard had not charged anyone with unfair means so that he could claim to defend himself.

Therefore, the order of the High Court must be set aside and the respondents-candidates allowed to sit for the next examination. [969 B-Dl Board of High School Intermediate Examination, U.P. Allahabad v.

Ghanshyam Das Gupta and Ors. (1962] Supp. 3 S.C.R. 36, explained.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2620 of 1969.

Appeal by special leave from the judgment and order dated December 8, 1969 of the Patna High Court in C.W.J.C. No. 1040 of l 969.

Sarjoo Prasad, Roy Paras Nath, S. K. Bisaria and S. S.

Jahar, for the appellant.

S. N. Prasad, for the respondents.

The Judgment of the Court was delivered by D

Hidayatullah, C.J., This is an appeal against the judgment and order of the High Court of Patna, December 8, 1969 in Civil Writ Jurisdiction Case No. 1040 of 1969. It is brought to this Court by special leave.

The appellant is the Bihar School Examination Board through its Chairman.

The respondents are 36 students of S.S.H.E, School, Jagdishpur and H. E. School Mal- E aur, District Shahabad. They had moved the High Court under Art. 226 of the Constitution against the order of the Board cancelling annual Secondary School ExaminaHon of 1969 in relation to Hanswadih centre in Shahbad District.

They had also asked that a mandamus be issued to the Board to publish the results of the students who appeared at this centre.

The High Court has F quashed the order of cancellaHon and directed the Board to publish the results.

Candidates at the Secondary School Examination held in March, 1969 appeared at various centres including Hanswadih Centre.

The results were published in July 1969 but the results of examinees at Hanswadih centre were not released.

On July 22, 1969 it was reported in a local Hindi daily newspaper thaa the results of this centre and others were under consideration.

On August 30, 1969 a communique from the Board appeared in the newspaper Searchlight that the examinations of all subjects held at the Secondary School Examination of 1969 at Hanswadih centre were cancelled and the reason was that unfair means were practised on a large scale at this Centre.

Examinees were, however, allowed to appear at the supplementary Secondary School Examination to be held in September, 1969.

- "

B!HAR EXAM. BOARD v. s. c. SINHA (Hidayatullah, C.J.) 965

The respondents challenged the order of the Board on many grounds.

The main grounds we_re that there was no complaint of use of unfair means; that no opportunity had been given to the examinees to show cause before passing the order of cancellation against them; that as the Supplementary Examination was to be held within 10 days of the communique there was no time for the students to prepare for the examination; that the cancellation ooght to have been announced before publishing the results of other centres . and lastly that the order passed by the Chairman and not by the Baord, was not a valid order under the Bihar School Examination Board Regulations.

From the record of the case 'and the return which has been filed by the Board the following facts appear :

The Tabulators of the Hanswadih centres', reported that the percentage of successful examinees was as high as 80% whereas the average at the Arrah, Dalippur centres was only 50%. They were therefore asked to prepare percentage subjectwise.

All the Tabulators submitted these precentages.

The matter was referred to the Unfair Means Committee of the Board.

The Committee in its turn asked the Moderators to look into all the answer books where the percentage was 80% or more.

They reported unfair means on a mass scale.

The Chairman then passed an order on August 30, 1969 cancelling the examination in all subjects at the Hanswadih Centre allowing the examinees to re-appear at the Supplementary Examination in September, 1969 without payment of fresh fees.

The Head Masters of the three schools concerned were also informed by registered letters.

The action of the Chairman w11s placed before the Board at its meeting on September 9, 1969 and was approved.

It was stated\in the return that a complaint was received from one Satnarain Singh of Jagdishpur, who, however, wrote a letter that he had made no such complaint.

The High Court gave a finding that the high percentages did give rise to a suspicion that unfair means were practised and that the Board was justified in investigating the case. It was, however, held that the examinees were not given a chance to show cause and the materials on which the Chairman of the Board passed his order were not disclosed-to the examinees.

The Board had therefore failed to act according to the principles of natural justice and the order of the Chairman and/ or .the Board could not, therefore, be sustained.

The High Court relied upon Board of High School & Intermediate Education. U.P., Allahabad v.

Ghanshyam Das Gupta and others(') and Ajit Singh and others v.

Ranchi Universlty('). It commented upon the short interval bet-

(I) [1962] Supp. 3 S.C R. 36.

(2) A.l.R. 1964 Patna 291.

ween the communique and the Supplementary Examination and

A - held that the communique should have been issued before the results had been published. The High Court also considered the competence of the Chairman to pass the order under the Regula- " tions but did not decide it as it reached the conclusion that the principles of natural justice were violated and the orders of the Chairman and/ or the Board were, therefore unsustainable. The B order of the Board was quashed and the publication of the results of the Hanswadih Centre was ordered.

This Court granted special leave and directed stay of the operation of the order of the High Court.

We heard this appeal on February 25, 1970.

Since the next c examination at which the respondents can appear is scheduled to be held in March, we did not wish to delay the decision of the appeal.

We accordingly passed an order allowing the appeal and set aside the order of the High Court but stated that we would give our detailed reasons later.

We now proceed to do so.

All the arguments which were presented in the High Court were repeated before us by the learned counsel for the responde12t.

We find it convenient to consider some of them before taking up the point on which the High Court has cancelled the order ot _ the Board and directed the publication of the results.

The argument that no one had complained about the examination need not detain us.

The Tabulators sent thier remarks on which investigation was made.

The Unfair Means Committee and the Moderators gave their opinion.

These were sufficient for taking action.

There was no need lo wait for a complaint, nor. was a complaint really necessary.

The results were withheld so that inquiries could be completed.

In the meantime the results of the other centres which were not under suspicion could be declared because in their case there was no reason to withhold publication.

The contention that the Board alone and not the Chairman could, cancel the examinations need not detain us.

Under s. 6(2) of the Bihar School Examinations Board Act, the Board co~ siders, moderates, determines and publishes the results of examinations.

It also admits ca, ndidates to examinations, disqualifies them for any reason which it considers to be adequate. l, Jnder s. 9(3) of the Act in an emergency the powers of the Chatrll:!an are co-terminus with those of the Board and he can take acl!on himself and later report it to the Board. n this case action as taken by the Chairman and he reported 1t. to the Board w¥ch folly endorsed it.

Therefore the cancellatmn of the exammations at Hanswadih Centre .must be treated as an order of the Board and cannot, therefore, be challenged on the ground that it was incompetently made.

This brings us to the crux of the problem.

The High Court mterfered on the ground that natural justice and fair play were not observed in this case.

This was repeated to us by the respondents in the appeal.

A mention of fair play does not come very '."ell from the respondents who were grossly guilty of breach of faJI play themselves at the examinations.

Apart from the reports of the experts, the results speak for themselves.

At the other centres the average of successful candidates was 50%. At this centre the examinations had the following percentage :

I. Mother Indian Language 94

2. English 70

3. Social Studies .. 95

4. Everyday Science 90

5. Elementary Mathematics

JOO

6. Economics & Civics 92

7. Elementary Physiology and Hygiene 96

8. Geography 99 9.

History 88

IO. Physics 70

11. Chemistry

IOO

12. Advance Mathematics 99

13. Sanskrit .100

These figures speak for themselves.

However, to satisfy ourselves we ordered that some answer books be brought for our inspection and many such were produced.

A comparison of the answer books showed such a remarkable agreement in the answers that no doubt was left in our minds that" the students had assistance from an outside source.

Therefore the conclusion tha~ unfair means were adopted stands completely vindicated.

This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at ::! particular centre. If it is not a question of charging any one individually with unfair .means but to condemn the examinat<on as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases '!

We think not.

It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled.

The Board had not charged any one with unfair means so that he could claim to defend himself.

The examination

was viti!lted by adoption of unfair means on a mass scale.

In A these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter arid examine each individual case to satisfy itself which of the canaidates had no~ adopted unfair means.

The examination as a whole had to go.

I Reliance was placed upon Ghanshyam Das Gupta's case('), to which we referred earlier. There the examination results of three

candidates were cancelled, and this Court held that they should have received an opportunity Of explaining their conduct.

It was also said that even if the inquiry involved a large number of persons, the Committee should frame proper regulations for the conduct of such inquiries but not deny the opportunjty.

We do not think that that case has any application.

Surely it was not intended that where the examination as a whole was vitiated, say by leakage of papers or by destruction of some of the answer books or by discovery of unfair means practised on a vast scale that an inquiry would be made giving a chance to every one appearing at that examination to have his say? What the Court intended to Jay down was that if any particular person was to be proceeded against, he must have a proper chance to defend himself and this did not obviate the necessity of giving an opportunity even though the number of persons proceeded against was large.

The C0urt was then not considering the right of an examining body to cancel its own examination when it was satisfied that the examination was not properly conducted or that in the conduct of the examination the majority of the examine.es had not conducted themselves as they should have.

To make such decisions depend upon a full-fledged judicial inquiry would hold up the functioning of such autonomous bodies as Universities and School Board.

While we do not wish to whittle down the requirements of natural justice and fair play in cases where such requirement may be said to arise, we do not want that this Court should be understood as having stated that an inquiry with a right to representation must always precede in every case, however different.

The . universities are responsible for their standards and the conduct of examinations.

The essence of the examinations is that the worth of every person is appraised without any assistance from an outsi<le source. If at a centre the whole bodv of students receive assistance and manage to secure success in the neighbourhood of 100% when others at other centres are successful only at an average of 50%, it is obvious that the university or the Board must do something in the matter.

It cannot hold a detailed quasi-judicial inquiry with a right to its alumni to plead and lead evidence etc. before the results are withheld or the examinations cancelled. If

[I] £1962] Supp. 3 S C.R. 36.

A there is sufficient material. on which it can be demonstrated that the university was right in its conclusion that the examinations ought to be cancelled then academic standards require that the university's appreciation of the problem must be respe, cted. It would not do for the Couri to say that he should have examined all the candidates or even their representatives wHh a view to ascer- B taining whether they had received assistance or not.

To do this would encorage indiscipline if not also perjury.

We are satisfied that no principle of .natural justice was violated in !his case.

The Boarcj through its Chairman and later itself reached the right conclusion that the examinations at this Centre had be.en vitiated by practising unfair means on a mass scale and the Board had every right to cancel the examination and order thai a fresh examination be held.

There was no need to give the examinees an opportunity of contesting this conclusion because the evidence in the case was perfectly plain and trans- parent.

We therefore set aside the order of the High Court and ordered dismissal of the writ petition but made no order as to D. costs.

V.P.S.

Appeal allowed.

SUBHAS CHANDRA SINHA & ORS

February 25, March 10, 1970

M. HIDAYATULLAH

A. N. RAY

I. D. DUA, JJ.

Bihar School Examination Board Act

s. 9(3)

August 30, 1969

Art. 226

s. 9(3)

CIVIL APPELLATE JURISDICTION

Patna High Court

Sarjoo Prasad

Roy Paras Nath

S. K. Bisaria

S. S.

Jahar

S. N. Prasad

D

Hidayatullah

High Court of Patna

Bihar School Examination Board

Art. 226

Shahbad District

Hanswadih

July 22, 1969

Dalippur

September 9, 1969

Satnarain Singh

Jagdishpur

February 25, 1970

s. 6(2)

s. 9(3)

Sanskrit

Ghanshyam Das Gupta

Couri

Boarcj


JAGANNATH SINGH AND OTHERS v.

DR. RAM NARESH SINGH

March 10, 1970.

[M. HIDAYATULLAH, C.J., A. N .. RAY AND I. D. DUA, JJ.] Practice and Procedure-Case not properly described Jn cause list- Non-<Jppearance. of counsel and partY;-Whe!' excusable.

A motion for contempt against the appellants was made and it was shown on the daily cause list on Monday, !st of May 1967 before a Judge of the High Court. On that day the case did not reach and it was shown on the next day .. The name of the counsel of the appellants was not correctly mentioned in the cause list of !st ef May, but the next day the entry was correctly made. When the case was called, tile appellants \Vere absent as also therr counsel. The order '"'" paswd ex.parte imposing fines on the appellants. The clerk of the counsel tiled an affidavit stating that he missed the case on the .first day as his counsel's name was not ' oori'ectly recorded, and as contempt matter. are usually shown on Monday, he overlooked it the following day also.

It was also stated that bis counsel was informed by another counsel that his case had been called out and when his OO?lllSOl went to enquire, he found that the judgment bad already been delivered.

An application, was thereafter made for rehearing the case after vacating the order. The Judge did not accept the explanation. In appeal, this Court,

, HELD :-The High Court contributed to the failure of the paify to appear before it on the first day and in these circumstances, the High Court should have seen its way to hear the counsel when he put. an application for re-hearing.

The omission to mention the case correctly in the cause list was a mistake of the Court itself and some indulgence was, the'refore, to be shown to the party who bad been misled by this erroneous entry. It is no doubt true that on the next day, the entry was correctly made. When the counsel knew that his case was not in the CaU>e list the previous day he .. ought to have looked into the Cause List for the next day's work.

There was some negligence on the part of the counsel or his cletk but it was not so grave as to disentitle the party to be heard, and in any event, tJuo alleged contemnars could not be punished for a mistake on the part of their counsel or the counsel's clerk. .

Further this was a case in which the counsel must have an opportunity of explainig his conduct and the conduct of his clients in reference to the order of stay for whose disobedience the charge of contempt was made.

[972 B-0]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 59 and 60 of 1968..

Appeals by special \eave from the judgments and orders "lated May 2, 1967 and May 18, 1967 of the Allahabad High Court in Criminal Misc. Contempt Case No. 53 of 1966.

M. V. Goswami, for the appellant (in both the appeals) S. S. Khanduja and Kailash Chander for the respondents (in both the appeals) . ·· O. P. Rana, for the interveners.

F '

JAGANNATH v. RAM NARESH (lfjdayatullah, C.J.) 971

The Judgment of the Court was delivered by Hidayatullah, C.J. These two appeals arise out of two separate proceedings in the High, Court of Allahabad.

CriminaI Appeal No. 60 of 1968 arises out of an order by which the appellants held guilty of contempt and fined, asked the Court to vacate the order and to rehear the case.

CriminaI AppeaI No. 59 of 1968 concerns the main order passed in the case holding the appellants guilty of contempt and imposing fines on them. We have not considered the merits of Civil Appeal No. 59 of 1968 be<:ause in our opinion, Civil Appeal No. 60 of 1968 should be allowed with the consequentiaI order that the conviction for contempt of Court should be set aside and the case remanded to the High Court for re-hearing.

It is not necessary to go into the facts of the case because we are only concerned with the absence of counsel and parties when the motion for contempt was heard in the High Court. The case was shown in the daily Cause I..ist of Monday, the 1st May, 1967 before Mr. Justice Gyanendra Kumar in Court Room No. 2. On that day, there were two cases fixed at the top for dictation of judgment and for orders.

Thereafter, this case was shown at the 12th place.

The entry read correctly in so far as the names of the parties were concerned and the number of the case but by some mischance, the name of the counsel was shown as Mr. C.B. Gupta in place of Mr. C.B. Misra.

It appeai:s hat the case was not reached that day.

It was shown the next day in the same Court its position was then No. 3. One case which had tire 15th place on 1st May. 1967 was shown ahead of this case.

This time, the name of the counsel was correctly mentioned.

When the case was called in the Court of Mr. Justice Gyanendra Kumar, the appellants were absent as also t!Jcir counsel.

The order was passed ex-parte imposing fines upon the contemnors who are the appellants here.

According to the affidavit filed by the clerk of Mr. C. B. Misra, he missed the case on the first day because the name of his counsel was not correctly recorded.

He also stated that as contempt matters were usuaily shown on Monday, he overlooked the case on the following day also and hence Mr. C. B. Misra could not be present in Court.

It is also stated in the affidavit that another counsel informed Mr. C. B. Misra that his case had been called in Court No. 2.

Mr. Misra went to enquire because he did not know that he had a case Jhere.

He found that this case was in fact shown in the Cause List but that it was already heard and decided and the judgment was also delivered.

The application was thereafter made for re, hearin~ the ease after vacating the order, pointing out the facts which we have narrated above.

The learned Judge did not accept the affidavit of Mr. Misra's cl.erk.

He observed that it was not a

SUPREME._ COURT REPORTS

(1970) 3 S.C.R.

case of optical illusion or that two pages had been turned by mis- A take.

The case was shown on the 1st May and also on the second May he was not, therefore, prepared to accept the explanation.

Although, we are reluctant to interfere in matters of disdpline, when the High Court punishes for contempt for disobedience of its orders, we think in this case, the learµed judge migh: well have heard Mr. Misra.

There is no doubt that on the ls~ of May there was an error in the Cause List and it is a maxim that an act of Court should not harm any person.

The omission to mention the case correctly in the Cause List was a mistake of the Court itself and some indulgence was, therefore, to be shown to the party who had been mis-led by this erroneous entry.

It is no doubt true that on the next day, the entry was correctly m; ide.

When the counsel knew that his case was not in the Cause List the previous day he ought to have looked into the Cause List for the next day to find whether it was included in the next diy's work.

There is some negligence Oil the part of the counsel er his clerk but it is not so grave as to dis-entitle the party to be heard, and in any event, the _alleged contemnors cannot be punisheJ for a mistake on the part of their counsel or the counsel's clerk.

In a contempt matter, the Court acts as accuser as well as the Ji:dge.

Although, strictly speaking, the contemnor is not allowed. to defend himself where the contempt is patent, however, here. there was some question as to whether the stay granted remained ir!tact after the order of August 30, 1965, or had been varied by that order.

There was also some doubt as to whether the constructions had been made in such a way as to amount to disobedience of the injunction which had been made by the Court on fanuary 11, 1965. All these matters might have been properly explained if the party had appeared. In our judgment, the High Court contributed to the failure of the party. to appear before it on the first day and in these circumstances, the High Court should have seen its way to hear the counsel when he put an application for re-hearing.

We say nothing about the merits of the case.

If contempt has been committed, no doubt, it will be dealt with properly by the High Court.

But in this case, we are sati>fied that the counsel must have an opportunity of explaining his c.Jnduct and the conduct of his clients in reference to the order of stay.

We accordingly set aside both the orders and remit the c:ise to the High Court for considering whether contempt has boon committed or not and to deal with the matter in accordance with law.

Since the appellants were guility of some neglience. we think, we should make an order that they should bear the costs o.f these appeals qualified at Rs. 300.

Y.P.

Case remanded.

LICSupCl/7()-15-5-71--0IPF.

JAGANNATH SINGH AND OTHERS

RAM NARESH SINGH

March 10, 1970

M. HIDAYATULLAH, C.J.

A. N .. RAY

I. D. DUA, JJ.

Allahabad High Court

M. V. Goswami

S. S. Khanduja

Kailash Chander

O. P. Rana

JAGANNATH

RAM NARESH

lfjdayatullah

Hidayatullah

High, Court of Allahabad

1st May, 1967

Gyanendra Kumar

C.B. Gupta

C.B. Misra

1st May. 1967

C. B. Misra

Misra

August 30, 1965

fanuary 11, 1965