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PETITIONER: BOARD  OF  HIGH  SCHOOL &  INTERMEDIATE  EDUCATION,  U.  P.,

       Vs.

RESPONDENT: GHANSHYAM DAS GUPTA AND OTHERS

DATE OF JUDGMENT: 06/02/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. DAS, S.K. SARKAR, A.K. SUBBARAO, K. AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR 1110            1962 SCR  Supl. (3)  36  CITATOR INFO :  F          1962 SC1217  (3A)  R          1964 SC 436  (8)  RF         1966 SC  81  (5)  R          1967 SC1507  (6,7)  R          1969 SC 401  (4)  D          1970 SC1269  (6,14)  APL        1970 SC1896  (19)  RF         1971 SC1005  (2)  R          1973 SC 834  (20)  R          1974 SC  87  (11)  RF         1975 SC 596  (3)  F          1976 SC 667  (4)  R          1978 SC 851  (69)

ACT: Examination   Committee-Cancelling  examination   results-No opportunity  given  to  examinees  of  being   heard-Natural justice-if violated-Committee, if must act judicially-U.  P. Intermediate Education Act,’ 1921 (U.  P. 2 of 1921), s. 15- Regulations, Ch.  VI, r. 1 (1).

HEADNOTE: The three respondents were declared by the appellant to have passed   the  Intermediate  examination.   Thereafter   they prosecuted further studies and subsequently the fathers  and guardians   of  the  respondents  were  informed  that   the Examination  Committee  of  the  Board  had  cancelled   the examination  results of the respondents and that  they  were debarred  from  appearing  at  the  next  examination.   The respondents  filed  a  writ petition in the  High  Court  of Allahabad  contending that since the  Examination  Committee had  never  afforded any opportunity to them  to  rebut  the allegations made against them the Examination Committee  had violated  the  principles  of natural  justice.   They  also contended that the Committee had violated the provisions  of the  U. P. Intermediate Education Act, 192 1. The  appellant while admitting that no opportunity had been afforded to the respondents to rebut the allegations against them, contended that  the Examination Committee was only  an  administrative

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body acting merely administratively and it was not bound  to give  a  hearing  to a party who might be  affected  by  its decision.  The Single judge who heard the writ petition held that the Committee was not bound to act judicially and there was  no  statutory obligation on the Committee  to  give  an opportunity  to  be heard.. The respondents  appealed  to  a Division Bench and one of the judges of Bench held that even though  the  Committee was not bound to  act  judicially  or quasijudicially and it was acting administratively it  ought to  have  given an opportunity to the respondents  of  being heard.   The other judge was of the opinion that  since  the committee was acting only administratively it was not  bound to  give  a hearing.  The matter then went  before  a  third judge  who  held that even though the Committee  was  acting merely  administratively the respordents were entitled to  a hearing.   The appellant thereupon appealed to  this  Court. The appellant contended that the Committee was only a body a ing administratively and that the principles of natura 37 justice, including the maxim audi alteram partem apply  only to  judicial  or  quasi-judicial  bodies.   The  respondents contended that the High Court was wrong in holding that  the Committee  was only an administrative body.  It was  further submitted by them that the mere fact that there was  nothing express  in  the Act or the  Regulations  framed  thereunder which might make it obligatory for the Committee to call for an  explanation and to hear the examinee whose case  it  was required to enquire into was not wholly determinative of the question  whether a duty is cast on the Committee  in  cases like this to act judicially. Held, that the inference whether the authority acting  under a  statute,  where  it  is  silent,  has  the  duty  to  act judicially  will  depend on the express  provisions  of  the statute  read along with the nature of the rights  affected, the manner of disposal provided, the objective criterion  if any to be adopted, the effect of the decision on the persons affected  and  other indicia afforded by the  statute.   The mere  fact  that  the  Act  in  question  or  the   relevant Regulations  do not make it obligatory on the  Committee  to call  for  anexplanation  and to bear the  examinee  is  not conclusive  on the question whether the Committee acts as  a quasi-judicial  body  when exercising its powers  under  Ch. VI,  r. 1 (1), of the Regulations.  It is obvious  that  the Committee when it proceeds to decide matters covered by r. 1 (1) will have to depend upon materials placed before it  and before it decides to award any penalty it has to come to  an objective  determination  on certain facts and this  is  the only  manner in which it can carry out the duties impos.  ed on  it.  Even though there is no lis in the present case  in the  sense that there are not two contending parties  before it  the Committee should hear the examinees whose lives  may be  seriously affected by its decision even subjecting  them in  some  cases  to  criminal  prosecution  on  charges   of impersonation, fraud and perjury.  Though therefore there is nothing  express  one  way  or  other  in  the  Act  or  the Regulation   casting  a  duty  on  the  Committee   to   act judicially,  the  manner  of the disposal  and  the  serious effects  of  the  decision  of the  Committee  lead  to  the conclusion  that  a duty to act judicially is  cast  on  the Committee  and the Committee when it acts under r. 1 (1)  is acting  quasi-judicially  and  the  principles  of   natural justice will apply to its proceedings. Province of Bombay v. Kusaldas S. Advani, [1950] S.C.R. 621, Yagendranath  Bora  v.  Commissioner of  Ilills  Division  & Appeals, Assam, [1958] S. C. R. 1240.  Shri Radheshyam Khore

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v. State of Madhya Pradesh, [1959] S. C. R. 1440, Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport  Corpo- ration, [1959] Stipp.  1 S. C. R. 319 and Nathubhai v. Union (if lndia, (1960) 2 S. C. R. 775, followed. 38

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No., 132 of 1959. Appeal from the judgment and decree dated March 23, 1956  of the Allahabad High Court in Special Appeal No. 291 of 1955. Veda Vyasa and C. P. Lal, for the appellant. J. P. Goyal, for the respondents. 1962.   February 6. The Judgment of the Court was  delivered by WANCHOO,  J.-This is an appeal on a certificate  granted  by the  Allahabad  High Court.  The brief facts  necessary  for present  purposes  are these.  The  three  respondents  were students of G. S. Hindu Intermediate College at  Sikandrarao and appeared at the Intermediate (Commerce) Examination con- ducted by the appellant in the year 1954.  On June 12, 1954, the  result of the examination was published  in  newspapers and  the  three respondents passed in the  second  division. Thereafter they prosecuted further studies.  But in December 1954, their fathers and guardians received information  from the  Principal of the G. S. Hindu Intermediate College  that the  Examinations’ Committee of the  appellant  (hereinafter referred  to as the Committee) had cancelled the  result  of the respondents for the examination of 1954 and further that they had been debarred from appearing at the examination  of 1955.   Thereupon the respondents filed a write petition  in the  High  Court  contending that the  Committee  had  never afforded  any opportunity to them to rebut  the  allegations made  against them and that they were never  informed  about the nature of the unfair means used by them in the said exa- mination  and  the  first thing they come to  know  was  the resolution  of  the Committee canceling  their  results  and debating  them  from appearing in the examination  of  1955. They  therefore  contended  that they were  entitled  to  an opportunity being 39 afforded  to  them to meet the case against  them  of  using unfair  means at the examination before the  appellant  took action against them by canceling their results and debarring them  from  appearing  at  the  examination  of  1955.   The procedure  thus adopted by the appellant was said to  be  in violation  of the principles of natural justice inasmuch  as they   were  given  no  opportunity  whatsoever  to   defend themselves and to show cause against the action contemplated against  them.  It was further contended that the  procedure adopted  by the appellant violated the provisions of the  U. P.  Intermediate Education Act, No. II of 1921  (hereinafter referred  to as the Act) and the U. P. Education  Code,  and therefore,  the  resolution  canceling  their  results   and debarring  them from appearing in the later examination  was without jurisdiction and illegal.  They therefore prayed for a  proper  writ  or order canceling the  resolution  of  the appellant. The appellant opposed the application and its case was  that the respondents had used unfair means at the examination and their  cases  were  reported  to  the  Committee  under  the Regulations  and the Committee had acted under  the,  powers conferred  on  it under the Act and the  Regulations  framed thereunder  after a thorough inquiry.  It was not  disputed,

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however,  that  no  opportunity had  been  afforded  to  the respondents  to  rebut the allegations against them  in  the inquiry  made  by  the  Committee  which  resulted  in   the resolution canceling the results of the examination. A  large number of contentions appear to have been urged  in the  High Court; but we are here only concerned with one  of them,  namely,  whether the respondents were entitled  to  a hearing before the appellant decided to cancel the  results. The  contention  on  behalf of the  respondents  before  the learned Single Judge was that the appellant was Under a duty to act judicially and therefore the 40 respondents  should  have been given a  hearing  before  any order  was passed , against them.  The learned Single  Judge held  that  no  duty  was  cast  on  the  Committee  to  act judicially  and  there was no statutory  obligation  on  the Committee  to  give an opportunity to every  examine  to  be heard; therefore he rejected the petition. The  respondents  then went in appeal which  was  heared  by Dayal  and  Brijmohan  Lall,  JJ.,  who  however   differed. Brijmohan  Lall, J., was of opinion that the  Committee  was not  required to act judicially or quasijudicially  when  it considered  cases  of  this  kind  and  was  acting   merely administratively;  be nevertheless was of the  opinion  that one  of the rules of natural justice contained in the  maxim audi  alteram partem would apply in this case,  even  though the Committee was acting administratively.  He was therefore in favour of allowing the appeal.  Dayal J., agreed with the view of Brijmohan Lall, J., that in the present case no duty was  cast  on the Committee to act judicially and  that  the action of the Committee was merely administrative.  He  how- ever did not agree that the Committee acted in violation  of the  principles  of natural justice inasmuch as it  did  not give  a  hearing  to the respondents.  He was  of  the  view that.-is the Committee was acting merely administratively it was  not bound to give a hearing, as the maxim audi  alteram partem applied only to judicial or quasijudicial  tribunals. The  two  learned Judges also differed on two  other  points with  which we are not concerned.  Eventually they  referred three questions to be answered by another learned Judge  and one  of  these  questions was whether  the  failure  of  the Committee  to provide an opportunity to the  respondents  of being   heard   vitiated  its  order,  which   was   of   an administrative nature. The matter then camo before a third learned Judge, Agarwala, J. He was doubtful whether the 41 view  of  the  bench  that there was no  duty  cast  on  the Committee to act judicially in the present case was correct; but  as  on  that  matter the two  learned  Judges  were  in agreement,  he  dealt with the case on the  basis  that  the Committee  was acting merely administratively, Even  so,  he came to the conclusion that the respondents were entitled to a  hearing  and agreed with the view of Brijmohan  Lall,  J. Consequently,  the appeal was placed before the Bench  again and in accordance with the opinion of the third Judge it was allowed.  Then followed an application by the appellant  for leave  to appeal to this court, which was granted; and  that is how the matter has come up before us. The  main contention on behalf of the appellant is that  the High Court was wrong in the view it took that an opportunity for  hearing  was iiecessary in this case  even  though  the Committee  acted merely administratively.  It  is  contended that  where a body is acting merely administratively, it  is not  necessary that it should give a hearing to a party  who

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might be affected by its decision and that the principles of natural  justice, including the maxim, audi alteram  partem, apply  only  to  judicial or  quasi-judicial  bodies,  i.e., bodies  on  whom a duty is cast to act  judicially.   It  is submitted  that where no such duty is cast on a body and  it is acting merely administratively there is no necessity  for it to hear the person who might be affected by it,.,  order. The  respondents on the other hand contend that  though  the final decision of the High Court is correct, the High  Court was  not  right  in holding that the  Committee  was  acting merely  administratively  in  a matter of  this  kind;  they contend  that  considering the  entire  circumstances  which operate  in cases of this kind, the High Court  should  have held  that there was a duty to act judicially and  therefore it  was necessary to give an opportunity to the  respondents to  be  heard before action was taken against them.   It  is submitted that the 42 mere  fact that there was nothing express in the Act or  the Regulations framed thereunder which might make it obligatory for the Committee to call for an explanation and to hear the examinees  whose cases it was required to enquire  into  was not wholly determinative of the question whether a duty  was cast on the Committee in cases like this to act judicially. The  first question therefore which falls for  consideration is  whether any duty is cast on the Committee under the  Act and  Regulations  to act judicially and therefore  it  is  a quasi-judicial  body.  What constitutes  ,’a  quasi-judicial act" was discussed in the Province or Bombay v. Kusaldas  S. Advani.(1)  The principle, have been summarised by  Das,  J. (as he was then), at p. 725 in these words:-               "The principles, as I apprehend them are:               (i)   that if a statute empowers an authority,               not  being a court in the ordinary  sense,  to               decide disputes arising out of a claim made by               one  party  under the statute which  claim  is               opposed by another party and to determine  the               respective  rights of the  contesting  parties               who are opposed to each other, there is a  vis               and  prima  farcie and in the absence  of  any               thing in the statute to the contrary it is the               duty  of the authority to act  judicially  and               the  decision  of the authority  is  a  quasi-               judicial act ; and               (ii)  that if a statutory ’authority has power               to do any act which will prejudicially  affect               the subject, then, although there are not  two               parties  apart  from  the  authority  and  the               contest is between the authority proposing  to               do  the act and the subject opposing  it,  the               final determination of the authority Will  yet               be   a  quasi.  judicial  act   provided   the               authority  is required by the statute  to  act               judicially.               (1) [1950] S.C.R, 621, 725.               43               In  other  words, while the  presence  of  two               parties  besides the deciding  authority  will               prima  facie and in the absence of  any  other               factor  impose upon the authority the duty  to               act  judicially,  the  absence  of  two   such               parties  is not decisive in taking the act  of               the  authority out of the category  of  quasi-               judicial act if the authority is  nevertheless               required by the statute to act judicially."

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These  principles  have  been acted upon by  this  Court  in latter cases: see Nagendra Nath Bora v. The Commissioner  of Hills Division & Appeals, Assam(1), Shri Radheshyam Khare v. The State of Madhya Pradesh(2), Gullapalli Nageswara Rao  v. Andhra  Pradesh  State Road  Transport  Corporation("),  and Shivaji  Nathubhai v. The Union of India(4).  Now it may  be mentioned  that the statute is not likely to provide  in  so many words that the authority passing the order is  required to  act  judicially;  that can only  be  inferred  from  the express  provisions of the statute in the first instance  in each   case   and  no  one  circumstance   alone   will   be determinative  of the question whether the authority set  up by  the statute has the duty to act judicially or not.   The inference whether the authority acting under a statute where it is silent has the duty to act. judicially will depend, on the  express provisions of the statute read along  with  the nature  of the rights affected, the manner of  the  disposal provided  the objective criterion if any to be adopted,  the effect  of  the decision on the person  affected  and  other indicia  afforded by the statute.  A duty to act  judicially may arise in widely different circumstances which it will be impossible  and  indeed  inadvisable to  attempt  to  define exhaustively:(vide  observations  of  Parker, J.  in  R.  v. Manchester Legal Aid Committee)(5). (1) [1958] S.C.R. 1240. (2) [1959] S.C.R. 1440. (3) [1959] Supp.  1 S.C.R. 319. (4) [1960] 2 S.C.R. 775. (5)  [1952] 2 Q.B. 413, 44 We must therefore proceed to examine the pro. visions of the Act and the Regulations framed thereunder in connection with matters of this kind to determine whether the Committee  can be  said  to have the duty to act judicially when  it  deals with  cases  of examines using unfair means  in  examination halls.   Under  s.7  of  the  Act,  the  Board   constituted thereunder  has  inter alia powers to prescribe  courses  of instruction, to grant diplomas and certificates, to  conduct examinations  to  admit candidates to  its  examinations  to publish the results of its examinations, and to do all  such things  as may be requisite in order to further the  objects of  the  Board  as a body  constituted  for  regulating  and supervising  High School and Intermediate education.   Under s.  1  3,  the Board has power  to  appoint  and  constitute various  committees, including the examinations’  committee, and  under  s. 14, the Board can delegate  its  power.-;  by Regulations  to such committees.  Section 15 gives power  to the   Board  to  make  Regulations  with  respect   to   the constitution,  powers and duties of committees, the  conduct of  examinations,  and all matters which by the Act  may  be provided for by Regulations.  Section 20 gives power to  the Board  and its committees to make bye-laws  consistent  with the Act and the Regulations. It  will  be  clear from the above that  the  Act  makes  no express  provisions as to the powers of the  committees  and the  procedure to be adopted by them in carrying  out  their duties, which are left to be provided by Regulations, and we have therefore to look to the Regulations framed under s. 15 to  see.  what  powers and duties  have  been  conferred  on various   committees  constituted  under  the   Regulations. Section  13 (1) makes it incumbent on the Board  to  appoint the  Committee and Chap.  VI of the Regulations  deals  with the powers and duties of the Committee.  Rule 1 (1) of Chap. VI with which we are particularly concerned reads as 45

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follows:--               "It  shall  be the duty of  the  Examinations’               Committee  subject to sanction and control  of               the Board."               "(1)  to  consider cases where  examines  have               concealed  any fact or made a false  statement               ill  their  application forms or a  breach  of               rules  and regulations to secure undue  admis-               sion to an examination or used unfair means or               committed  fraud (including impersonation)  at               the  examination  or  are guilty  or  a  moral               offence  or indiscipline and to award  penalty               which may be one or more of the following               :--(1)  withdrawal  of certificate  of  having               passed the examination ;               (2)   cancellation of the examination;               (3)   exclusion from the examination." There  is  however no provision in Chap.  VI as to  how  the Committee will carry out the duty imposed on it by r. 1 (1). Further,  there  is no express provision in the Act  or  the Regulations   casting  a  duty  on  the  Committee  to   act judicially  when exercising its powers under r. 1  (1);  and the  question  whether the Committee has to  act  judicially when exercising these powers will have to ’be decided on  an examination of all the circumstances relevant in the matter. At  the same time, there is nothing express in the Act  from which it can be said that the Committee is not under a  duty to  act judicially.  It is true that there is  no  procedure provided as to how the Committee will act in exercising  its powers under r. 1 (1) and it is. further true that there  is no express provision in that rule requiring the Committee to call  for an explanation from the examines concerned and  to hear the examines whose case,% ;it is required to  consider. But we are of opinion that the mere fact that the Act or the Regulations  do not make it obligatory on the  Committee  to call for an explanation and to 46 hear the examiner is not conclusive on the question  whether the  Committee acts as a quasi-judicial body  in  exercising its  powers  under  r. 1 (1).  Even though  calling  for  an explanation  and hearing the examine may not have been  made expressly  oblitory  by the Act or the  Regulations,  it  is obvious  that the Committee when it proceeds to decide  mat- ters covered by r. 1 (1) will have to depend upon  materials placed  before  it, in coming to its decision.   Before  the Committee decides to award any penalty it has to come to  an objective  determination on certain facts and only  when  it comes  to  the conclusion that those facts  are  established that  it can proceed to punish the examinee concerned.   The facts which the Committee has to find before it takes action are               (i)   whether  the examinee has concealed  any               fact   or  made  a  false  statement  in   his               application form; or               (ii)  whether  the examinee has made a  breach               of  the Rules and Regulations to secure  under               admission to an examination ; or               (iii) whether  the  examinee has  used  unfair               means at the examination ; or               (iv)  whether the examinee has committed fraud               (including impersonation) at the examination ;               or               (v)   whether the examinee is guilty of  moral               offence or indiscipline. Until  one or other of the five facts is established  before

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the  Committee, it cannot proceed to take action under r.  1 (1).   In order to come to the conclusion that one or  other of  these facts is established, the Committee will  have  to depend  upon  materials placed before it, for  in  the  very nature of things it has no personal knowledge in the matter. Therefore, though the Act or the Regulations do 47 not  make  it  obligatory on the Committee to  call  for  an explanation  and  hear the examinee, it is implicit  in  the provisions  of  r.  1 (1) that the  Committee  must  satisfy itself  on materials placed before it that one or  other  of the facts is established to enable it to take action in  the matter.   It  will  not be possible  for  the  Committee  to proceed  at  all unless materials are placed  before  it  to determine whether the examinee concerned has committed  some misconduct or the other which is the basis of the action  to 1  be  taken  under r. 1 (1).  It is  clear  therefore  that consideration  of  materials placed before it  is  necessary before  the  Committee  can  come to  any  decision  in  the exercise  of its powers under r. 1 (1) and this can  be  the only  manner  in  which the Commit, tee can  carry  out  the duties imposed on it. We thus see that the Committee can only carry out its duties under  r. 1 (1) by judging the Materials, placed before  it. It is true that there is no lis in the present case, in  the sense  that there are not two contesting parties before  the Committee and the matter rests between the Committee and the examinee;  at the same time considering that materials  will have  to  be  placed before the Committee to  enable  it  to decide  whether  action should be taken under r. 1  (1),  it seems  to  us only fair that the examinee against  whom  the Committee is proceeding should also be heard.  The effect of the  decision of the Committee may in an extreme case  blast the career of a young student for life and in any case  will put  a  serious stigma on the examinee concerned  which  may damage  him in later life.  The nature of  misconduct  which the Committee has to find under r. 1 (1) in some cases is of a serious nature, for example, impersonation, commission  of fraud, and perjury; and the Committee’s decision in  matters of  such  seriousness  may even lead in some  cages  to  the prosecution   of  the  examinee  in   courts.    Considering therefore the serious following the 48 decision  of  the Committee and the serious  nature  of  the misconduct which may be found in some cases under r. t  (1), it  seems  to  us that the Committee must  be  held  to  act judicially  in  circumstances as  these.   Though  therefore there is nothing express one way or the other in the Act  or the  Regulations  casting  a duty on the  Committee  to  act judicially, the manner of the disposal, based as it must  be on materials placed before it and the serious effects of the decision  of the Committee on the examinee  concerned,  must lead to the conclusion that a duty is cast on the  Committee to  act judicially in this matter particularly as it has  to decide objectively certain facts which may seriously  affect the rights and careers of examinees, before it can take  any action in the exercise or its power under r. 1 (1).  We  are therefore  of opinion that the Committee when  it  exercises its powers under r. 1 (1) is acting quasijudicially and  the principles  of natural justice which require that the  other party,  (namely, the examinee in this case) must  be  heard, will  apply to the proceedings before the  Committee.   This view  was  taken by the Calcutta High Court in Dipa  Pul  v. University  of  Calcutta,  (1)  and  B.  C.  Das  Gupta   v. Bijoyranjan Rakshit, in similar circumstances and is in  our

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opinion correct. It  is  urged on behalf of the appellant that  there  are  a large  number  of cases which come up before  the  Committee under  r.  1  (1),  and if the  Committee  is  hold  to  act judicially as a quasijudicial tribunal in the matter it will find  it  impossible  to carry on its  task.   This  in  our opinion is no criterion for deciding whether a duty is  cast to  act judicially in view of all the circumstances  of  the case.   There is no doubt in our mind that  considering  the totality   of  circumstances  the  Committee  has   to   act judicially  when  taking action under r. 1 (1).  As  to  the manner  in  which  it  should give  an  opportunity  to  the examinee concerned to be (1)  A. I. R. 1952 Cal. 594. (2) A. 1. R. 1953 Cal. 212.  49 heard, that is a matter which can be provided by Regulations or  Bye-laws  if  necessary.  As was pointed  out  in  Local Government  Board  v. Alridge, (1) all that is  required  is that the other party shall have an opportunity of adequately presenting  his case.  But what the procedure should  be  in detail will depend on the nature of the tribunal.  There  is no  doubt  that many of the powers of  the  Committee  under Chap.   VI  are of administrative nature; but  where  quasi- judicial  duties are entrusted to administrative  body  like this  it becomes a quasi-judicial body for performing  these duties and it can prescribe its own procedure so long as the principles  of  natural justice are  followed  and  adequate opportunity of presenting his case is given to the examinee. It  is not however necessary to pursue this matter  further, for it is not in dispute that no opportunity whatsoever  was given to the respondents in this case to give an explanation and  present  their  case  before  the  Committee.   We  are therefore of opinion that though the view of the High  Court that  the Committee was acting merely administratively  when proceeding under r. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was  given  to the respondents to put  forward  their  cases before  the Committee is correct.  We therefore dismiss  the appeal.  No order as to, in the circumstances. Appeal dismissed. (1)  [1951] A.  C. 120. 50