UMAR KHALID vs. JAWAHARLAL NEHRU UNIVERSITY THR ITS REGISTRAR

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: October 12, 2017

+ W.P.(C) 7826/2016, CM No. 32348/2016
UMAR KHALID

..... Petitioner(s)
Through: Mr. Akhil Sibal, Mr. Jawahar
Raja, Mr. Sourav Roy, Ms.
Jahnavi Mitra and Mr. Chinmay
Kanojia, Advs.
versus
JAWAHARLAL NEHRU UNIVERSITY THR
ITS REGISTRAR
..... Respondent
Through: Ms. Ginny J. Rautray, Ms.
Kanchan Kaur Dhodhi and Ms.
Anushka Ashok, Advs.
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
J U D G M E N T
V. KAMESWAR RAO, J
1. The present petition has been filed with the following prayers:-
“In the facts and circumstances set out above, it is most
respectfully prayed that this Hon‟ble Court be pleased to:
a) issue a writ of certiorari or any other appropriate
writ, order or direction calling for the records, quash and
set aside respondent‟s
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i) Office Order No. 198/CP/2016 dated 22.8.2016;
ii) Appellate Committee proceedings dated Nil, based
on which Office Order No. 198/CP/2016 dated 22.8.2016
came to be passed;
iii) Office Order No. 144/CP/2016 dated 25.4.2016;
iv) Report of the High Level Enquiry Committee
constituted by the respondent vide Notifn. No.
Reg./Misc/16 dated 11.02.2016;
v) all other proceedings consequential to and arising
out of the report of the High Level Enquiry Committee
constituted by the respondent vide Notifn. No.
Reg./Misc/16 dated 11.02.2016;
b) award the petitioner the costs of these proceedings;
d) Pass such further order or orders as this Hon‟ble
Court may deem fit.”

2. The petitioner has filed the present petition seeking quashing of
the respondent‟s orders dated August 22, 2016 and April 25, 2016, and
quashing of the report of the High Level Enquiry Committee
constituted by the Respondent vide Notification dated February 11,
2016. Vide the order dated April 25, 2016, the petitioner had been
found to be in breach of University Regulations, and had been
imposed the penalty of rustication for one semester, with fine of
Rs.20,000/-, which penalty was upheld by the Appellate Authority
W.P.(C) No. 7826/2016 Page 2 of 58



with a direction to give an undertaking.
3. The facts as pleaded by the petitioner in the writ petition are:-
a. A poetry reading event was held on the campus of
the Respondent University on February 09, 2016, which
attracted severe media frenzy and led to widespread
public animosity towards some students of the
University, including the Petitioner, resulting in acts of
violence in the Patiala House Court Complex against
some students and even renowned Senior Counsel
appointed by the Supreme Court.
b. The petitioner, fearing for his safety, went into
hiding on February 11, 2016.
c. On the same day i.e February 11, 2016, the
Respondent University set up a proctorial enquiry
committee to look into the incident and later
withdrew the said proctorial enquiry committee
and set up a „High Level Enquiry Committee‟. The
HLEC was required to enquire into the event,
identify any lapses which may have occurred, and
W.P.(C) No. 7826/2016 Page 3 of 58



recommend any actions to be initiated by the
University.
d. Petitioner found out that he was being sought by
the police and therefore surrendered to them on the
rd th
night intervening 23 and 24 February, 2016,
under protection of orders passed by this Court on
a petition filed by him being W.P.(Crl.) 609/2016
seeking such protection.
e. Although the HLEC was aware that the petitioner
was in hiding (as were several other of the
respondent‟s students), they rushed proceedings
through.
f. Petitioner and respondent are not at issue that
throughout HLEC‟s proceedings, the petitioner was
either in hiding or in police / judicial custody.
g. Final Report („the HLEC Report‟) was forwarded
to the Vice Chancellor. The report itself is undated
but Respondent placed on record (through
Additional Affidavit dated 07 January 2017) a
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covering letter that indicated that the HLEC sent its
report to the Vice Chancellor of the respondent
University under cover of letter dated March 11,
2016.
h. Thereafter, a „Show Cause Notice‟ dated March
14, 2016 issued by the Chief Proctor was sought to
be served on the petitioner on March 15, 2016,
while he was lodged in Tihar Jail.
i. The Show Cause Notice declared the Petitioner to
„have been found guilty‟ for violating the JNU
Students‟ Discipline and Conduct Rules („the JNU
Rules of Discipline‟), and called upon him explain
by March 16, 2016 „why action should not be
initiated against him‟. This Show Cause Notice
did not enclose a copy of the HLEC Report.
j) Show Cause Notice was followed by a letter dated
March 16, 2016 issued by the Chief Proctor,
extending the Petitioner‟s time to respond to the
Show Cause Notice till March 18, 2016 and
W.P.(C) No. 7826/2016 Page 5 of 58



enclosing a copy of the HLEC Report.
k) Being in Tihar Jail, the petitioner viewed the said
communications, purportedly holding him „guilty‟
without even notice of ongoing proceedings, with
suspicion, and declined to receive them.
l) However, the petitioner, through his lawyer,
requested the University to supply him with the
necessary details / information / documents
pertaining to the enquiry, on March 18, 2016. This
communication from petitioner‟s lawyer was
admittedly received by the Respondent.
Respondent however did not acknowledge the
communication, let alone respond to it.
m) The petitioner was released from Tihar Jail on bail,
late in the evening of March 18, 2016. Petitioner‟s
release was admittedly known to the Respondent,
but petitioner was not informed of any proceedings
pending against him.
n) However, the Chief Proctor, with the approval of
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the Vice Chancellor issued an order dated April 25,
2016 finding the Petitioner Guilty of violating the
JNU Rules of Discipline and imposed a
punishment of rustication and fine on the
petitioner.
o) Even after this order, the Petitioner vide letter
dated May 03, 2016 wrote to the Chief Proctor,
indicating the lapses of natural justice on account
of lack of notice and denial of reasonable
opportunity to present his case, sought a recall of
the Order dated April 25, 2016, and again
requested copies of the relevant materials.
p) When this letter also met with no response from
the University, the petitioner was compelled to
approach this Court in W.P.(C) 442/2016.
q) In those proceedings, this Court permitted the
petitioner to appeal the orders of the guilt and
punishment impugned before it, to the relevant
university authority – the Vice Chancellor. This
W.P.(C) No. 7826/2016 Page 7 of 58



Court further directed that the orders passed in that
appeal would not be given effect to until of two
weeks after it was passed. It is averred, this court
was persuaded to pass such directions after noting
that an “an appeal is continuation of the main
proceedings” and that the “petitioners cannot be
condemned unheard”.
r) Petitioner filed an appeal on June 03, 2016 to the
Vice Chancellor of the Respondent, highlighting
the various deficiencies of the proceedings before
the HLEC and the Chief Proctor, along with
applications seeking the material information /
documents.
s) Although the petitioner had already lodged his
appeal on June 03, 2016, the Chief Proctor wrote to
the petitioner on June 13, 2016 that “you are
requested to appeal to the Vice Chancellor,
Appellate Authority of the University, and depose
on June 16, 2016 at 11.15 AM.”
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t) Petitioner on June 16, 2016 wrote to the Chief
Proctor that he had already lodged his appeal on 3
June, 2016, and that he had pointed out in his
appeal, that he was disabled from an effective
appeal since he did not have access to relevant
information and material. Petitioner therefore, once
again requested the Chief Proctor to provide him
with all the relevant information / material he had
sought many times earlier, including in his appeal
of 3 June, 2016 before proceeding further in the
matter.
u) Petitioner attended appeal hearing at the Vice
Chancellor‟s Office on 16 June 2016.
v) During the hearing, the Petitioner pointed out – yet
again – his inability to defend himself without
access to the relevant materials. In response,
Appellate Committee handed the petitioner a
voluminous set of files to read and asked the
petitioner to respondent „by writing his appeal‟.
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This, the petitioner was expected to do in the 15
minutes slot allotted to each student called for

hearing on 16 June, 2016. (16 students had been
allotted time for hearing on that date. The hearings
were scheduled to begin at 11 AM, with 15
minutes slot allotted to each student. Petitioner
was the second in the list of students whose
hearings were scheduled for 16 June 2016.).
w) At the appeal hearing, the Petitioner once again
wrote out his appeal highlighting the various
deficiencies of the proceedings before the HLEC
and the Chief Proctor, and once again asking for all
material information / documents.
x) The Petitioner thus wrote a letter dated June 17,
2016 indicating denial of reasonable opportunity to
make his case, in terms of the principles of natural
justice, as well as the specific requirements of the
JNU Rules of Discipline, and once again
requesting access to materials considered by the
W.P.(C) No. 7826/2016 Page 10 of 58



authorities at various stages. This letter also met
with no response, and the Impugned Order was
passed, in total violation of the prescribed rules and
Fundamental Principles of Natural Justice, and
completely ignoring the representations made by
the Petitioner through his multiple
communications, as well as during the hearing.
4. The respondent University has filed a short affidavit in response
to the writ petition. The stand of the University in these proceedings
shall be noted while referring to the submissions made by Ms. Ginny
Routray, the learned counsel for the University.
SUBMISSONS:-
5. It is the submission of Mr. Akhil Sibal, learned Senior Counsel
for the petitioner that petitioner was not served with the notice of the
HLEC proceedings, and that those proceedings were concluded behind
his back, while he, initially, was in hiding for fear of mob frenzy, and
later, while he was in police and judicial custody. He stated, the
HLEC could not have given findings of guilt or recommended
punishment to be imposed, since its terms of reference extended only
W.P.(C) No. 7826/2016 Page 11 of 58



to recommending “actions to be initiated by the University as per its
statutes and guidelines” HLEC‟s Terms of Reference therefore
indicated a preliminary, fact-finding enquiry, and not a disciplinary
enquiry. However, examination of the HLEC report indicates that the
HLEC acted beyond its terms of reference and found the petitioner
guilty. In support his contention, he would refer to the following
judgments:
(i) Nirmala J. Jhala v. State of Gujarat (2013) 4 SCC 301;
(ii) Nandita Narain v. Delhi University, 2015 SCC Online Delhi
6498.

6. He stated, it is clear from the stand of the respondent in counter
affidavit and documents placed on record, they have not conducted
separate disciplinary enquiry – either in terms of the JNU Rules of
Discipline and Conduct, or on any other terms – after the HLEC
submitted its report, and in fact relied solely on the HLEC Report. He
would draw my attention to the show cause notice dated March 14,
2016 issued by the respondent, that the petitioner has „ been found
guilty‟ ; impugned order dated April 25, 2016, imposes punishment on
the basis of the Petitioner having been found “guilty” by the HLEC;
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Appellate Committee‟s note on the hearing dated June 16, 2016 also
notes that the Petitioner „was punished‟ by the HLEC; in its Counter
affidavit before this Court, the respondent stated that the Petitioner
“was punished” by the HLEC.
7. It is his submission, the Impugned Orders are vitiated for being
premised on the HLEC Report, which is admittedly an outcome of a
fact finding committee‟s proceedings which were conducted behind
the back of the Petitioner, and could not have rendered findings of
guilt and recommend punishment. Mr. Sibal stated, the respondent‟s
power to enforce discipline among students flows from Section 5 (10)
of the Jawaharlal Nehru University Act, 1966. („the JNU Act‟) and
from clause 32 of the statutes of the University that form the second
schedule to the JNU Act. Clause 32 (5) of the statutes mandates the
framing of detail rules of discipline and proper conduct. The
University framed, and Vice Chancellor approved the JNU Rules of
Discipline to comply with Statute 32 of the JNU Act.
8. According to him, Rule 5 (1) of those rules stipulates:
“No punishment shall ordinarily be imposed on a student unless
he / she is found guilty of the offence for which he / she has been
charged by a proctorial any other in other inquiry after
W.P.(C) No. 7826/2016 Page 13 of 58



following the normal procedure and providing due opportunity
to the student charged for the offence to defend himself‟.
The rule therefore, has three important elements:
 the student must be charged by the authority
conducting the enquiry – where the enquiry into
the misconduct/indiscipline is being conducted by
a proctorial board, the charge must be by the
proctorial board, and when the enquiry into the
misconduct / indiscipline is being conducted by
some other enquiry committee, the charge must be
framed by that enquiry committee.
 normal procedure must be followed;
 the student must be given due opportunity to
defend himself against the charge.
9. The respondent‟s action against the Petitioner is in violation of
Rule 15 (1) of the „Rules of Discipline and Proper Conduct‟
since he was not „charged‟ by a proctorial or other inquiry,
„normal procedure‟ was not followed, and he was not given
„due opportunity‟ to defend himself. He qualifies his
submission that, the petitioner was not charged by Proctoral or
other enquiry by stating during the course of arguments, the
Respondent initially claimed that the HLEC was the
disciplinary enquiry committee and had issued notice to the
petitioner by email, mail and in person, before finding the
petitioner guilty. When petitioner pointed out that HLEC could
not have found the petitioner guilty since its terms of reference
W.P.(C) No. 7826/2016 Page 14 of 58



did not include examining the guilt or innocence of the
petitioner, and that the HLEC had not complied with the rules
stipulated by JNU statutes, and had not complied with the
minimum principles of natural justice, respondents contended
that the HLEC had not determined the guilt of the petitioner and
that the HLEC was merely a preliminary fact-finding enquiry.
Thus, it is Respondent‟s own case that the HLEC was merely a
fact finding enquiry. Thus, it is the Respondent‟s own case that
the HLEC was merely a fact finding body. Despite this, the
HLEC has entered findings on the Petitioner‟s guilt and
recommended punishments to be imposed on the petitioner. It
is submitted that the said findings are totally unsustainable,
inasmuch as the HLEC, quite apart from being legally
incompetent to enter such findings, did not follow the
mandatory procedure of Rule 5 (1) of the JNU Rules of
Discipline. With regard to the proceedings before the HLEC, he
stated, the Respondent has produced notices allegedly addressed
to the Petitioner and has sought to contend that the Petitioner
chose not to participate in the HLEC‟s proceedings despite the
same. However, the respondent has failed to adduce a proof of
service of these notices on the Petitioner, and more particularly,
the record itself indicates these notices were not served on the
Petitioner. He qualifies his submission by stating; (1) The
notice dated February 12, 2016 remained undelivered as per the
noting; (2) The notices dated February 16, 2016 and February
18, 2016 are not accompanied by any proof of service; (3) The
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notices dated February 16, 2016 and February 18, 2016, have
been addressed to „ khas-uman@hotmail.com ‟ and
„syed52_ssb@jnu.ac.in‟ which are not email ids used by the
Petitioner. On the contrary the email ids used by the Petitioner
are „khals_umar@hotmail.com‟ and „umarkhals@gmail.com‟,
on which the Petitioner has received 117 mails from the
Respondent; (4) The document sought to be put forth as proof
of service in Counter is merely an internal register of the
Respondent, without any proof dispatch. He reiterates that
parties are not on issue that the Petitioner was in hiding for fear
for his life throughout the period of issuance of these notices.
10. Mr. Sibal alternatively submits, even assuming that these
notices were served on the Petitioner, it is apparent that they
contain no charges and cannot even be described as „show cause
notices‟ inasmuch as they do not specify the allegation/action in
respect of which the Petitioner is being called upon to show
cause. The notices produced by the Respondent simply refer
“an incident” on February 09, 2016 and direct the Petitioner to
appear at a particular date and time „to explain your position in
this regard‟ and to „bring any evidence, which you wish to
submit in support of your defence‟ , without setting out any
allegation / charge or indicating any action proposed to be
taken. As such, the notices do not meet the basic legal
requirements of a show cause notice, let alone a notice of
charges. According to him, the stand of the respondent that
th
petitioner had been charged by show-cause notice dated 14
W.P.(C) No. 7826/2016 Page 16 of 58



March, 2016 that was sought to be served on the petitioner
while he was in judicial custody at Tihar Jail. However, the
„show cause notice‟ is not a „notice of charge‟ in terms of Rule
5 (1) because-

(1) Rule 5 (1) mandates that the charge has
to be famed by a proctorial or any other
enquiry. In the instant case, the „show
cause notice‟‟ is not issued by the HLEC,
which was the only enquiry set up by the
Respondent. Admittedly, the HLEC had
already concluded its proceedings and
forwarded its report to the Vice
Chancellor on 11.03.2016.
(2) It does not state that the petitioner is
being charged; it stated that the petitioner
has “been found guilty” by the HLEC.
(3) The notice merely asked the petitioner to
show cause as to why “ disciplinary
action should not be initiated ” against
him. As such, the only consequence
which could follow from the notice was
the initiation of a disciplinary enquiry
against the petitioner. If the petitioner
had responded to the show cause notice
and the Respondent had found the
W.P.(C) No. 7826/2016 Page 17 of 58



petitioner‟s response satisfactory,
proceedings against the Petitioner would
then have been dropped. On the other
hand, if the petitioner did not respond to
show cause notice or if the Petitioner‟s
response to the show cause notice was
found satisfactory, the next step in terms
of rule 5 (1) could only have been to
institute a “proctorial or other enquiry”.
It was then for the “proctorial or other
enquiry” to frame charges against the
petitioner. The show cause notice
therefore, did not, as it could not have
done, frame any charges against the
petitioner in terms of rule 5(1).
11. It is the submission of Mr. Sibal far from being a „charge‟ or
„notice of charge‟ under rule 5 (1), notice dated March 14, 2016 is not
even a valid „notice to show cause‟, because such a notice must
indicate the penalty / action proposed to be taken. In the instant case,
the only action specified in the show cause notice was initiation of
disciplinary action and not imposition of punishment. The only action
which could have followed notice dated March 14, 2016, therefore, is
initiation of disciplinary action and not imposition of punishment. He
stated, additionally, the Show Cause Notice of March 14, 2016
vitiated all proceedings that followed upon the show cause notice
since, in stating that the petitioner „has been found guilty‟, it is
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indicated the predetermined mind of the Disciplinary Authority. Mr.
Sibal would rely on the judgment of the Supreme Court in Oryx
Fisheries v. Union of India, (2010) 13 SCC 427 , to contend the
Supreme Court held that proceedings following up on show cause that
indicated the predetermined mind of the disciplinary authority were
unfair and stood vitiated, and further, that such unfairness could not be
cured in appeal. He also relied on Tilakchand Magatram v. Kamala
Prasad Shukla, 1995 Supp, (1) SCC 21 , to contend the Supreme
Court has held that a defect in the initial stages of disciplinary
proceedings, which goes to the root of the matter, cannot be cured at
an appellate stage.
12. One of the submission of Mr. Sibal is, in fact, that despite the
petitioner repeatedly asking what procedure would be followed, the
Respondent did not inform him. Petitioner wrote to the respondent
asking what procedure would be followed in the enquiry to be
th
conducted against him on 18 March, 2016 and June 2016.
Respondent did not reply. He also stated, the respondent‟s action is
bad for the following reasons:-

(a) Petitioner was not informed who the complainant
was
(b) The complainant‟s statement was not recorded in
Petitioner‟s presence.

(c) Petitioner was not called to record his statement.
(d) List of witnesses were not called from the
complainant or from the petitioner so that they could be
called to record their depositions.
(e) Petitioner was not told what evidence was being
received against him.
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(f) Petitioner was not informed of what material
evidence – audio recordings, video recordings, paper
documentation etc. were available, who was producing
that material evidence, and how its veracity was being
established.
(g) No comprehensive report was prepared, no specific
charge was framed against petitioner, no show cause
notice was issued to Petitioner in respect of any
specific charge.
(h) Petitioner was not given opportunity to cross
examine the complainant or any of the witnesses.

13. It is the submission of Mr. Sibal, the „Revised Rules and
Procedures of the Gender Sensitisation Committee against Sexual
Harassment‟ to be followed by the committee examining allegations
of sexual harassment, provide for have not been adhered to.

(1) within two days of the institution of enquiry
proceedings the committee is mandated to prepare
summons with details of the complaint such as
location, date and time on which the incident is alleged
to have occurred and hand over the same to the
complainant as well as to the defendant along with a
copy of the rules and procedures applicable to the
sexual harassment committee.
(2) The enquiry committee will make available to the
defendant a copy of the original complaint lodged by
the complainant.
(3) The complainant and the defendant will submit
lists of witnesses.

(4) The defendant, the complainant and the witnesses
will be intimated at least 72 hours in advance, in
writing, of the date, time and venue of the enquiry
proceedings.
(5) The complainant and the defendant would have the
right to cross-examine all witnesses.
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(6) All proceedings of the enquiry committee will be
recorded in writing and the proceedings of the
committee along with the statements of witnesses will
be endorsed by the persons concerned in token of
authenticity.
(7) Any documents sought to be tendered in evidence
will be supplied to the adverse party.

14. He stated, the „Standard Operating Procedure‟ claimed to have
been followed by Respondent is not “Standard” and is not “normal
procedure”.
a) In fact there is no such Standard
Operating Procedure

i. Respondent filed what its
claimed was the Standard
Operating Procedure as
Annexure N. Annexure N
however is not one but two
documents, one titled, „Norms
and Procedure to be followed
by the Enquiry Committee‟ and
another titled „Norms and
Procedure to be followed during
the enquiry‟.

ii. A bare perusal of both these
documents indicates that this
procedure was specifically
devised for this particular
enquiry into „the event that has
occurred‟; this cannot be said to
be “normal procedure”.

15. Mr. Sibal also stated, the „Standard Operating Procedure” does
not contemplate due opportunity
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i. A bare perusal of the contents of the „Standard
Operating Procedure‟ reveals a total departure from
norms of fairness followed in disciplinary enquiries. It
contemplates no show cause notice, no framing of
charges, no opportunity to raise a defence, no right of
cross-examination, and does not respect any of the
fundamentals of the principles of natural justice.
Consequently, “due opportunity to the student charged
for the offence to defend himself” as required by Rule
5(1) was neither contemplated, nor granted by the
HLEC.


ii. This Court in Amritashav Kamal v. JNU; 2007
(99) DRJ 528 has noted – while considering the actions
of the Respondent in these proceedings – that it must
comply with prescribed rules, and with the
fundamentals of the natural justice while conducting
disciplinary enquiries against students. On that
occasion, this Court had compared the Respondent‟s
refusal to grant its students a fair hearing in compliance
with prescribed procedures to the „writ of a monarch.‟

16. He stated, at the very least, „due opportunity‟ to defend in
disciplinary proceedings includes, being informed clearly of the
charges levelled; witnesses being examined in the presence of the
person charged; person charged being given a fair opportunity to
cross-examine witnesses and challenge the credibility of evidence and
material tendered; person charged being given a fair opportunity to
examine witnesses in defence, and findings being recorded, with
reasons in support of the findings. Charges were not framed against
the petitioner, evidence was led behind his back, and when the
Petitioner asked for copies of the evidence so he could decide how to
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challenge it, he was refused. And the petitioner was not allowed to
lead defence evidence. Clearly, the petitioner was denied „due
opportunity‟. He would refer to the following judgments:-
(i) LIC v. R.K. Mahajan, 2015 SCC Online Del. 13616 , in the
context of a provision to provide a reasonable opportunity to show
cause, that natural justice necessarily requires supply of materials
relied upon by the University.
(ii) Ayaaubkhan Noorkhan Pathan v. State of Maharashtra
(2013) 4 SCC 465 , noting that the right of cross-examination is an
essential part of the principles of natural justice, and must be adhered
to in disciplinary enquiries.
(iii) State of UP v. Shatrughan Lal (1998) 6 SCC 651 , noting that a
disciplinary authority must supply the materials being relied upon to
the accused, or at the very least grant an inspection of the said
materials to the person being proceed against, sufficiently, in advance,
in order to secure compliance with natural justice and provide a
reasonable opportunity to show cause.
(iv) Committee of Management, Kisan Degree College v.
Shambhu Saran Pandey and Ors. (1995) 1 SCC 404 , noting the right
of a person facing disciplinary proceedings to be supplied / permitted
to inspect the materials being considered by the disciplinary authority,
sufficiently in advance of enquiry proceedings.
17. On the appellate proceedings, it is his submission that the
Appellate Committee‟s recommendation, and Officer Order of 22
August 2016, are in violation of the Principles of Natural Justice
because the Appellate Committee asked the petitioner to defend
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himself without first providing the petitioner with all the material on
the basis of which he was being proceeded against. He stated, the
petitioner repeatedly asked for all documents on the basis of which
disciplinary proceedings were being taken against him as well as
details pertaining to the rules of which violation was alleged:

th
i) Letter dated 18 March, 2016.
rd
ii) Letter dated 3 May, 2016.
iii) W.P.(C) 4142/2016
iv) Appeal to the Vice Chancellor: Memorandum of Appeal
along with enclosed
nd
applications dated 2 June, 2016
th
v) Letter dated 16 June, 2016
th
vi) Letter dated 17 June, 2016 received by the Respondent
th
on 20 June, 2016.

None of these communications were even considered let
alone responded to:

18. He stated, this Court would not appreciate/re-appreciate the
evidence but only consider whether the rules and principles of natural
justice have been followed, in exercise of judicial review. He
qualifies his submission by stating, the petitioner has challenged
Respondent‟s decision-making process on the grounds that the process
violated applicable statutes and rules and basic principles of natural
justice applicable to the disciplinary proceedings. The petitioner has
contended that he was denied due opportunity to defend himself, inter
alia because, he was denied access to the materials forming the basis
of the findings against him. This is particularly crucial because the
petitioner placed on record vide his letter of June 17, 2016, that from a
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quick scan of some of the documents shown to him on June 16, 2016
he noticed that “they purported to be a record of some statements,
which statements were replete with falsehoods, and even worse,
partial truths that were even more misleading than the outright
falsehoods”. If the respondent had followed statutes, rules, and the
principles of natural justice, and had given the petitioner all the
relevant material, and had taken evidence in his presence instead of
behind his back, the petitioner could have cross-examined / questioned
/ tested the veracity of the evidence / material against him and could
have offered material in his defence. As such, having denied the
petitioner due opportunity to contest the merits of the allegations
against him by violating statues, rules and the principles of natural
justice, it is not now open to the respondent to invite this Court under
Article 226 to appreciate / re-appreciate evidence. In this regard, he
made a reference to the decision in Union of India v. P. Gunasekaran
(2015) 2 SCC 610 , wherein according to him, the Supreme Court has
noted the limits of the jurisdiction of a writ court, holding that a writ
court‟s power of interference is limited to the flaws in the decision
making process, and that writ court cannot assume the status of an
appellate court and reopen the merits / evidence. It is thus submitted
that the Respondent cannot now be permitted to place fresh materials,
for the first time, before this Court while defending against writ
proceedings.
19. He also stated, even before this Court, the Respondent has not
placed all the material on the basis of which the HLEC or the
Appellate Committee determined his guilt. According to him, the
W.P.(C) No. 7826/2016 Page 25 of 58



preamble to the HLEC report stated that it took the depositions of 7
university officials to establish the sequence of events. The body of
the HLEC report is entirely reconstructed from „deposition‟ taken by
the HLEC and the HLEC refers to “depositions file”, “other
depositions file”, and “security Deposition file”. The Appellate
nd
Committee‟s order of 22 August, 2016 also stated:-

 “it went through the depositions by security staff
of JNU, depositions of students, perusal of video
clips..”

 and refers to the “written deposition of the of the
Chief Security Officer to the HEC dated
01.03.2016.
 and also refers to depositions of the security staff
when its states “.. the same can be evidenced from
the depositions of the security staff who went to
inform…”, “.. has been withdrawn as per the
deposition of Mr. O.P. Yadav (Operations
Manager, G4S) and Mr. V.P. Yadav (Security
Supervisor, G4S)
 Even the letter of the appellate committee of 06
September 2016 states that the documents included
“written statements of security staff, students”.

20. He stated, the abovementioned „depositions‟ have not been
placed even before this Court. It is his submission, in any event, it is
not open to the Respondent, at this stage, to introduce reasons for its
orders by way of pleadings and submissions made before this Court,
which are not contained in the orders themselves. He refers to the
judgment of the Supreme Court in M.S. Gill v. Chief Election
Commissioner, (1978) 1 SCC 405 wherein it has held that the validity
of an order must be judged by the reasons mentioned therein and
W.P.(C) No. 7826/2016 Page 26 of 58



cannot be improved by subsequent affidavits. It is also his plea that
Appellate Committee‟s recommendation, and Officer Order of 22
August 2016, do not even advert to, let alone deal with, any of the
grounds of challenge taken by the petitioner, as according to him:-

a) Petitioner‟s appeal raised eight grounds of challenged,
serially A-H. Appellate Committee‟s recommendation does
not even refer to a single ground of challenge raised by the
petitioner, let alone decide or reject any of the grounds.
rd
b) In fact, Petitioner‟s appeal of 3 June, 2016 appears to have
entirely escaped respondent‟s notice, and the Appellate
Committee‟s recommendation and the respondent‟s decision
to accept that recommendation, have been made entirely in
ignorance of the petitioner‟s appeal. This is evident from the
fact that although petitioner had appealed on 03 June, 2016,
respondent‟s notice informing the petitioner of appeal
hearing was, in relevant part, worded thus: “you are
requested to appeal to the Vice Chancellor, Appellate
th
authority of the University, and depose on 16 June, 2016 at
th
11:15 AM” (notice of appeal hearing is dated 13 June,
2016). Therefore, although the petitioner had already
th
appealed on 03 June, 2016 as late as 16 June, 2016,
respondent was still communicating with the petitioner as if
the petitioner had not lodged his appeal. Moreover, despite
the filing of the Petitioner‟s appeal, the Appellate Committee
at hearing dated 16.06.2016 directed the petitioner to „write‟
his appeal during the hearing
c) Not applying mind to relevant ground of appeal is a grave
failure to exercise jurisdiction on the part of the Appellate
Committee that vitiates its recommendation and the
respondent‟s decision taken on the basis of that
recommendation.
d) Most importantly, the petitioner was first punished by order
of the Vice Chancellor dated 25 April, 2016. The rules
framed under the JNU stated provided that the appellate
authority against orders of punishment was the Vice
W.P.(C) No. 7826/2016 Page 27 of 58



Chancellor and since it was the Vice Chancellor himself who
had passed the first order of punishment, Petitioner
challenged that order before this Court in W.P.(C)
4142/2016. This Court passed the following order in writ
petitions filed by other students who had also been punished
by the Vice Chancellor for the same incident:


“……… an appeal is continuation of the main
proceedings and no date of hearing is fixed in the
present appeals, this Court is of the opinion that
the petitioners cannot be condemned
unheard………”

e) Petitioner therefore also applied for similar orders in his
petition, and this Court allowed the petitioner‟s application,
and, after granting the petitioner the same reliefs granted to
other students vide its order of 13 May, 2016 allowed the
petitioner a week‟s time to lodge formal appeal against the
Office order punishing him. In these circumstances,
respondents failure to deal with Petitioner‟s grounds of
appeal is also a violation of this Court‟s orders dated 13 May
2016 and 27 May 2016 in W.P.(C)4142/2016.

He seeks the reliefs as prayed in the petition.
21. On the other hand, Ms. Ginny Routry, learned counsel for the
respondent apart from drawing my attention to the short
affidavit/additional affidavit would submit, the petitioner was given
ample opportunities to appear and depose before the Enquiry
Committee along with the liberty to carry materials and evidences in
his defense both at the stage of Enquiry, Show Cause Notice and
Appeal. However, he failed to respond to the 3 notices dated February
12, 2016, February 16, 2016 and February 18, 2016 and further,
W.P.(C) No. 7826/2016 Page 28 of 58



refused to accept and respond to the Show cause Notice dated March
14, 2016. Since the Petitioner failed to come forward and make his
statement / depose before said forum, he himself failed to avail the
opportunity given to him and thus, there was no violation of Principles
of Natural Justice and fair play. She stated that at the stage of appeal
the decision is to be taken only from record before the deciding
Appellate Authority. Rules under the Statute 32 (5) state that the
punished student has the right to appeal against the punishment and
Vice-Chancellor is the empowered authority to deal with Appeals.
The Petitioner chose not to avail opportunities given to him, both at
the stage of enquiry, by admittedly going underground and evading
law, and at the stage of Show Cause Notice by willfully not
responding to the same, hence the writ petition on this ground alone is
not maintainable.
22. According to her, the petitioner is a student studying in JNU
and resident of Hostel in JNU. The respondent is Jawaharlal Nehru
University (JNU) established and incorporated by an Act of
Parliament in the year 1966.
23. That at 12 pm on February 09, 2016, the Respondent got to
know that some students were planning to host an “anti-national
event” in the evening at Sabarmati Dhaba. A meeting was called in
the Vice Chancellor‟s Office, wherein it was discovered that
permission was sought from the Additional Dean of Students by the
petitioner on the false pretext of holding a poetry reading competition
at Sabarmati Dhaba. Despite the alleged “permission” immediately
W.P.(C) No. 7826/2016 Page 29 of 58



being withdrawn by the DOS, the Petitioner carried on with the event
which led to an enormous law and order situation.
24. On February 11, 2016 forthwith a High Level Enquiry
Committee (HLEC) was constituted by the Vice-Chancellor to enquire
into the incident that took place on February 09, 2016 in the
Respondent‟s campus. By virtue of Section 5 (10) of the JNU Act read
with Statute 32 (1) of the Statutes of the University-
“The Vice Chancellor has been vested with all the powers
relating to discipline and disciplinary action in relation to
students.”
25. A 3 member Committee later expanded to 5 by the Vice-
Chancellor mainly consisted of University Professors and since it was
an internal enquiry of JNU, no third party was allowed to be present
during hearing. Further, no one was allowed to be represented by a
third party. The terms of reference for the Committee was:
(i) To enquire into the incident and ascertain sequence of
events.
(ii) Identify any lapses that may have taken place, and
(iii) On the basis of the findings , recommend actions to be
initiated by the University as per its statutes and
guidelines.
26. Subsequently, on February 12, 2016 Office Order No.
115/CP/2016 was passed. It is her submission based on the report
submitted by the Chief Security Officer, video clipping of the events
and other related documents, the High Level Enquiry Committee,
W.P.(C) No. 7826/2016 Page 30 of 58



constituted by the Vice Chancellor, JNU, was of the opinion that
prima facie evidence of the occurrence of the following offences
exists:-
(i) Misrepresentation of the proposed event as a cultural
evening although objective was to hold a political
meeting.
(ii) Forcefully holding the event even where the permission
to hold it was withdrawn by the DOS.
(iii) Creating a law and order situation on campus both at
Sabarmati Hostel and Ganga Dhaba.
(iv) Shouting unconstitutional slogans, and making
derogatory remarks about the nation.
27. According to Ms Routray, prima facie considering the
seriousness of the offences , and in order to enable a fair enquiry into
the incident, the Enquiry Committee had recommended that the
Petitioner along with certain other students be academically suspended
from JNU with immediate effect during pendency of the enquiry.
However, they were allowed to stay in their respective hostels as
guests during the period of enquiry. According to Ms. Routray, the
petitioner was given ample opportunities to appear and depose before
the committee along with the liberty to carry materials and evidences
in his defence. That the Committee issued their First Notice on
February 12, 2016 and subsequently Second and Third Notice on
February 16, 2016 and February 18, 2016 respectively to the
Petitioner, directing him to appear before the committee and explain
W.P.(C) No. 7826/2016 Page 31 of 58



his position about the incident that took place on February 09, 2016
near Sabarmati and Ganga Hostel. The notices clearly mentioned that
in the event the Petitioner fails to present before the Committee on the
said date, it will be presumed that he has nothing to say in the matter,
despite this the Petitioner failed to appear before the committee. The
above mentioned notices were dispatched via the Central Dispatch of
the University which is an independent department within the
University. She submitted that the notices were served at all his
known addresses including his Hostel room and email-id. Further, as
per the Hostel Manual of the University concerning Norms governing
Hostel Life Chapter 2, Clause 2.5.3, states that – “A resident who
wishes to stay out late or remain absent overnight shall inform the
warden concerned in the prescribed form.” However, there was no
intimation on behalf of the petitioner that he would not be available in
the hostel, therefore, it is presumed that the notices were served. She
relied on the judgment of the Supreme Court in the matter of Ajeet
Seeds Limited V. K. Gopala Krishnaiah, (2014) 12 SCC 685 ,
wherein according to her, it was held:
“Section 114 of the Evidence Act, 1872, enables the Court
to presume that in the common course of natural events,
the communication sent by post would have been delivered
to the address of the addressee. ................ Unless or until
the contrary is proved by the addressee, the service of
notice is deemed to have been affected at the time at which
the letter would have been delivered in the ordinary course
of business.”
28. She also relied upon the following judgments in support of her
submissions:-
W.P.(C) No. 7826/2016 Page 32 of 58



1. Chief Commissioner of Income Tax (Administration),
Bangalore V. V.K. Gururaj and Ors. (1996)7 SCC 275;

2. State of Punjab v. Bakhshish Singh, (1997) 6 SCC
381.

According to her, despite notices being served, the petitioner
failed to appear before the Enquiry Committee. Further, the petitioner
himself in his appeal to the Appeals Committee dated June 17, 2016
admits to being in hiding. However, the same was not intimated to
the Respondents or the concerned Hostel warden, and also the
Petitioner never came forward to give his statement regarding the
incident on February 09, 2016 let alone as much as deny his
involvement in the same. The petitioner only came forward to appeal
his punishment when he was directed by this Court to do so vide order
dated May 27, 2016. She stated, Kanhaiya Kumar was arrested on
February 12, 2016 and keeping in view that Kanhaiya Kumar was
released on bail on March 02, 2016; he was given another opportunity
to join the enquiry. However, the Petitioner‟s defence of not joining
the enquiry was that he was in hiding. Hence, admittedly, he was
evading law and therefore and cannot be permitted to claim indulgence
of this Court.
29. Ms. Routray had submitted that the HLEC followed Standard
Operating Procedures devised by the HLEC specifically for the said
enquiry during the course of enquiry. The HLEC spent considerable
time in examining all the evidences pertaining to the event which
included taking written depositions of eye witnesses and security
W.P.(C) No. 7826/2016 Page 33 of 58



officials, posters, SMS withdrawing consent to hold Anti-National
event form for seeking permission, examining the video clips
submitted by JNU Security Officer and scrutinizing various documents
/ posters related to this incident. The video submitted to the
Committee by the CSO was duly authenticated by a Government
approved agency: Truth Labs, Bangalore. Subsequent to enquiry
procedure, the HLEC recommended that the petitioner be charged
under Category II of (Rules of Discipline and Proper Conduct of
Students of JNU) of the statutes of the University and be rusticated for
1 Semester and imposed a fine of Rs.20,000/- . The HLEC submitted
its report along with recommendations to the Vice Chancellor on
March 11, 2016.
30. She justified the recommendation for disciplinary action, which
was based on the findings of the HLEC. The HLEC recommended
charges as well as punishment as per the Statues and guidelines of
JNU. The Chief Proctor, after perusing the report of the HLEC, issued
a Show Cause Notice on March 14, 2016 and along with an extension
dated February 16, 2016 along with a copy of HLEC report to the
Petitioner. The Show Cause Notice stated the grounds under Clause
3 of Category II as –
(vi) Furnishing false certificates or false information in any
manner to the University.
(ix) Arousing communal, caste or regional feeling or crating
disharmony amongst students.
W.P.(C) No. 7826/2016 Page 34 of 58



(xi) Causing or colluding in the unauthorized entry of any
person into the campus or in the unauthorized occupation
of any portion of the University premises including halls
of residences, by any person.
(xxv) Any other act which may be considered by the VC or any
other competent to be an act of violation of discipline and
conduct.
31. The Show Cause Notice further asked the Petitioner to explain
why disciplinary action should not be initiated against him for
indulging in the above mentioned acts. The petitioner was asked to
submit his reply to the Chief Proctor‟s Office latest by March 16,
2016, 17:00 hrs later extended till March 18, 2016 failing which it
would be presumed that the Petitioner has nothing to say in his defence
and the office would precede further in the matter. Furthermore, she
had stated that the notice to the Petitioner was served in Tihar Jail,
New Delhi which he categorically denied and refused to receive and
also refused to give anything in writing in this regard. Even after the
Petitioner was released on bail on March 18, 2016 he never responded
to the Show Cause Notice. She referred to the judgment of the
Supreme Court in the matter of K.L. Tripathi v. State Bank of India &
Ors. (1984) 1 SCC 43, wherein the Supreme Court held as under:
“The concept of fair play in action, which is basis of
natural justice, must depend upon the particular lis
between the parties. Where there is no lis regarding
the facts, no real prejudice would be caused to a
party by absence of any formal opportunity of cross
W.P.(C) No. 7826/2016 Page 35 of 58



examination and that per se would not invalidate or
vitiate the decision arrived at fairly. The party who
does not want to controvert the veracity of the
evidence from record or testimony gathered behind
back cannot expect to succeed in any subsequent
demand that there was no opportunity to cross
examination specially when it was not asked for and
there was no dispute about the veracity of the
statements.”
32. She also relied on the following judgments:-
1. Suresh Koshy George v. University of Kerala, AIR
1969 SC 198;
2. State Bank of Patiala v. S.K. Sharma, 1996 SCC (3)
36;
3. Ram Chander Roy V. Allahabad University, AIR
1956 AII 40;
4. V. Ramana v. APSRTC and Ors 2005 (7) SCC 338;
5. M.V. Bijlani Vs. UOI & Ors. (2006) 5 SCC 88.
Ms. Routray would also submit that instead of replying to the Show
Cause Notice on his own account, a communication dated March 18,
2016 was received by the Chief Proctor‟s Office from a person
claiming to be the Petitioner‟s Counsel. The same was not given
credence to for the following reasons as firstly, the students were well
aware that it was an internal enquiry and thus, no third party
representation was permitted. Secondly, the petitioner himself having
refused acceptance of the notices as recorded by the Superintendent of
Central Jail, no credence could otherwise be given to this fact as the
Petitioner never requested / informed that he would be represented by
W.P.(C) No. 7826/2016 Page 36 of 58



a Counsel at that stage or any time thereafter, more so when the
Petitioner himself had refused acceptance of notice as confirmed by
the Superintendent, Central Jail.
33. On the Petitioner‟s failure to reply to the Show Cause Notice,
the Respondent subsequently on April 25, 2016, after more than a
month, passed an office order wherein it was stated that –
With reference to the 9 February 2016 incident of JNU
Campus, the High Level Enquiry Committee (HLEC)
has found Mr. Syed Umar Khalid (Registration
Number-26954, Enrolment NO.11/61/MS/037, Year of
Admission: 2011, M. Phil/Ph.D Student, Centre for
Historical Studies, School of Social Sciences and a r/o.
Room No. 268, Tapti Hostel) guilty on the following
counts.
The University „Rules and discipline and proper
conduct of students of JNU‟, Clause-3 – „Categories of
misconduct and indiscipline‟, Category-II, Sub-
Category (vi) prohibits „Furnishing false certificates or
false information in any manner of the University‟.
As per the HLEC recommendation , Mr. Syed Umar
Khalid has been found guilty of

a) giving requisition form and undertaking form
as well in the false pretext to hold a “Poetry
Reading-A Country without a Post Office” at
W.P.(C) No. 7826/2016 Page 37 of 58



Sabarmati Dhaba on 9 February 2016 from
5.00 pm to 7.30 pm.
b) not following the University procedure for
holding the event.
c) misinforming the university security about the
permission of event having been granted.
The University ‘rules and discipline and proper
conduct of Students of JNU’ , Clause-3 „Categories of
misconduct and indiscipline‟, Category-II, Sub-Category
(xi) prohibits „Arousing communal, caste or regional
feeling or creating disharmony among students.‟
As per the HLEC recommendation , Mr. Syed
Umar Khalid had been found guilty of
a) lending his name in the poster titled “Against
the Brahmical collective conscience! against
the judicial keeling of Afzal Guru and Mazbool
Bhatt ..... “in the name of Cultural Evening
thus arousing communal and caste feelings.
The University ‘Rules and discipline and proper
conduct of students of JNU’, Clause 3 – „Categories of
misconduct and indiscipline‟, Category-II, sub-Category
(ix) prohibits „Causing or colluding in the unauthorized
entry of any person into the campus or in the
unauthorized occupation of any portion of the University
premises, including Halls of residences by any person‟.
W.P.(C) No. 7826/2016 Page 38 of 58



As per the HLEC recommendation, Mr. Syed
Umar Khalid has been found guilty of
(a) addressing to the group of students in a
wrongfully organized event and was found
engaged in sloganeering.
(b) being the part of the procession from
Sabarmati ground to the Ganga Dhaba during
which objectionable slogans were shouted.

(c) Putting up objectionable posters and setting up
a pubic addressing system at Sabarmati
ground.
These charges on the part of Mr. Syed Umar
Khalid are very serious in nature, unbecoming of a
student of JNU and calls for stringent disciplinary action
against him.
The Vice-Chancellor, in exercise of his powers
vested in him under Statute 32 (5) of the Statutes of the
University, has ordered that Mr. Syed Umar Khalid be
rusticated for the following semester (Monsoon Semester
2016-17) and has also imposed a fine of Rs.20,000
(Rupees twenty thousand only). He is directed to deposit
the fine by 13 May 2016 and show the proof thereof to
his office, failing which the Hostel facility will be
withdrawn with immediate effect and further registration
will not be allowed.
W.P.(C) No. 7826/2016 Page 39 of 58



His name shall stand removed from the rolls of the
University forthwith.

34. It is noted, the petitioner in regard to the aforesaid Office Order
and on this Court‟s direction vide order dated May 27, 2016, filed an
appeal dated June 03, 2016 before the Vice-Chancellor wherein the
Petitioner raised points on views taken by the High Level Committee
and challenged the setting up of the High Level Enquiry Committee
(HLEC) without giving any defense with respect to the events that
unfolded on February 09, 2016. It must be duly noted that Notice
dated June 13, 2017 with reference to the Report / recommendations
of the HLEC regarding February 09, 2016 incident on JNU campus
stated that the Petitioner was requested to appeal to the Vice-
Chancellor, Appellate Authority of the University and depose on 16
June 2016 at 11 a.m. at the Vice-Chancellor‟s Office . The hearing
with respect to the appeal took place on June 16, 2016. The
Respondent again granted time to some of the students to appear
before the committee on July 04, 2016 who had failed to appear on
June 16, 2016. The petitioner in his Appeal under Statute 32 of the
second schedule to the Jawaharlal Nehru University Act of 1966
stated-
I had not received any of the documents based on
which you had levied punishment on me. In fact,
I have still not been given any of those
documents. I have, however, accessed some
portion of the report of the High Level Enquiry
Committee (“HLEC”), on which Office Order
144/CP/2016 claims to been based.
W.P.(C) No. 7826/2016 Page 40 of 58




35. Ms. Routray had submitted, each and every appellant had spent
nearly three hours with all the documents and examined them in the
presence of the one member of the Appellate Committee. The
Petitioner further stated that the said Office Order No. 144/CP/2016
and the decision to punish me is based on no enquiry and no material
and that the Office Order is further contrary to Rule 5 (1) of the Rules
of Discipline and Proper Conduct‟s stipulation of providing me with a
due opportunity to defend myself. The Petitioner was served with one
notice after the other including a Show Cause Notice which he failed
to acknowledge. She relied upon the judgment of the Gujarat High
Court in State of Gujarat v. Pagi Bhurabhai Rumalbhai AIR 1969

Guj 260, in support of her contention.
36. She had submitted, the Respondent finally issued the Office
Order NO. 201/CP/2016 dated August 22, 2016 wherein it was stated
that the petitioner refused to answer questions and did not make any
specific appeal to absolve himself from the charges made by the High
Level Enquiry Committee. The petitioner was asked the following
questions:-
Were you present at Sabarmati Dhaba to attend the event
th
on 9 February, 2017?
The Petitioner said that “he will not speak anything until and unless he
is provided with a photocopy of all documents requested by him in his
earlier representation to the University Authorities”. According to Ms.
Routray, the petitioner was provided with complete set of files
W.P.(C) No. 7826/2016 Page 41 of 58



(security depositions, copies of relevant vides, copies of statements
given by witnesses, copies of all correspondences, copies of report of
HLEC, all other documentary proof) used by HLEC to arrive at the
punishment with respect to the petitioner.
37. She stated, the Petitioner was asked further questions but he
refused to cooperate
The Questions are as under-

Thus, the Petitioner was rusticated for 1 Semester and a fine of
Rs.20,000/- was imposed on the Petitioner.
38. It was also stated by Ms. Routray that till date the petitioner has
not volunteered to convey as to whether he was present during the
event of February 09, 2016 let alone admit or deny his involvement in
the same. If the Petitioner had given his statement on the event, it may
W.P.(C) No. 7826/2016 Page 42 of 58



have given rise to certain issues as a result of which a further enquiry
would have been initiated. However, the Petitioner never made any
statement to controvert the findings of HLEC, show cause and Order
dated April 25, 2016 despite being released on bail on March 18,
2016. Even at the stage of filing of Rejoinder the Petitioner has not
denied even one of the documents which have been relied upon by the
Disciplinary Authority while issuing Office Order dated April 25,
2016 nor has he stated how prejudice has been caused to him. The
documents are as under-
1. His signature on the Booking Requisition Form.
2. Statements given in the said Requisite Form.
3. The Posters bearing his name.
4. Duly authenticated videos.
5. Deposition by Security Staff officials.
6. Deposition of eye witness.
39. She stated, the University‟s autonomy means its right of self-
government and particularly, it‟s right to carry on its legitimate
activities without interference from any outside authority. That the
Appellant against whom charges were framed was given adequate
opportunities to defend himself, and the committee followed the rules
of natural justice while holding the enquiry. She stated, it is a settled
law that matters falling within the jurisdiction of educational
authorities should normally be left to their decision and this Court
would not interfere unless it thinks it must do so in the interest of
justice. She seeks dismissal of the petition.
W.P.(C) No. 7826/2016 Page 43 of 58



40. Having heard the learned counsel for the parties and perused the
written arguments submitted by the counsels, it is noted that the
subject matter of this petition is, the orders passed by the Competent
Authority whereby a penalty of rustication for one semester with fine
of Rs.20,000/- was imposed on the petitioner, which order was upheld
by the Appellate Authority with a direction to file an undertaking.
The enquiry relates to the events held on February 09, 2016 at the
University Campus. The grounds of challenge by the petitioner are
that the same was held without any notice to him as, at the relevant
time the petitioner was hiding and lodged in Tihar jail, which aspect
was known to the Authorities. In other words, for compelling reasons,
he could not attend the enquiry. That apart, despite asking to furnish
documents on the basis of which he has been held guilty, the same
have been denied; he could not respond to the charges alleged against
him and the show cause notice. That apart, it is his case that he was
not given proper hearing before the Appellate Authority; inspection of
documents was a formality inasmuch as only fifteen minutes were
given to him for the same. The petitioner has also raised certain
grounds on the interpretations and the scope of the Enquiry
Proceedings under the Statutes of the University.
41. The respondent has justified its action by contending that the
Enquiry Proceedings were held by following the principles of natural
justice and the Rules/Statutes. It is the petitioner, who failed to come
forward and depose before the Committee. That apart, the respondent
has also highlighted the seriousness of the charges for which the
W.P.(C) No. 7826/2016 Page 44 of 58



petitioner was held guilty. That apart, the appellate proceedings were
held after giving due opportunity to the petitioner to inspect the
documents and after inspection of the documents and upon hearing
and inability of the petitioner to answer the queries put by the
Appellate Authority, the appellate order was passed.
42. There is no dispute that the petitioner had filed an Appeal dated
June 03, 2016 pursuant to the directions given by this Court in an
earlier writ petition filed by the petitioner. It is also a conceded fact
that the Vice Chancellor-Appellate Authority had held its meeting on
June 16, 2016. There is also no dispute that the petitioner was shown
the record of the enquiry. The parties are at variance about the
duration for which the record was shown. It is a conceded fact that a
hearing was given to the petitioner on the same day, which resulted in
the passing of the appellate order on August 22, 2016. It is the case of
the petitioner that he wrote a letter dated June 17, 2016 indicating the
denial of reasonable opportunity to put forth his case in terms of
principles of natural justice and the requirements of the JNU Rules.
43. In his letter dated June 17, 2016, the petitioner has stated that on
June 16, 2016 he was asked to go through five voluminous files and
when he said he need at least three hours to go through the files, the
same was refused and was told to go through the documents and make
written representation, if he so wished. It is his case that he could able
to scan some of the documents from which it is noted that the
statements made in the enquiry were falsehood. He stated, he made a
request for relevant documents to make his right to appeal meaningful
W.P.(C) No. 7826/2016 Page 45 of 58



and not a formality. That apart, it was argued by Mr. Sibal that the
petitioner, in his appeal had raised eight grounds of challenge, which
have not been considered by the Appellate Authority. The Appellate
order was passed on August 22, 2016.
44. Clause 12 of the Norms and Procedure followed during enquiry
stipulates that every punished student has a right to appeal. In the case
in hand, after this Court had passed the order on May 27, 2016 in the
earlier writ petition filed by the petitioner being W.P.(C) No.
4142/2016, the respondent University issued a communication dated
June 13, 2016 asking the petitioner to appeal to the Vice Chancellor
and depose on June 16, 2016. The communication does not refer to
the fact that the petitioner shall be given the relevant
record/documents for inspection. Be that as it may, the learned
counsel for the parties agree that the files/records/documents before
the HLEC were given to the petitioner on June 16, 2016 to enable him
to peruse the same and make submissions on the same day. Even
assuming, three hours were granted to the petitioner to inspect the
documents on June 16, 2016, some time need to have been granted to
the petitioner to apply his mind on the evidence so noted by him
during the inspection, which was against him and to make an effective
appeal. Surely, for such purpose, he may have required reasonable
time to prepare his case, which may include seeking legal advice. In
fact, the petitioner vide his letter dated June 17, 2016 reiterated his
earlier request to make available the documents to make appeal more
meaningful. The procedure evolved by the Appellate Committee to
W.P.(C) No. 7826/2016 Page 46 of 58



allow inspection of the documents/records and hearing him could not
be in conformity with the principles of natural justice and the law laid
down by the Supreme Court in the case of Associated Cement
Company Ltd. v. Workmen and another (1964) 3 SCR 652, wherein
the Supreme Court was considering an appeal arising out of an
industrial dispute between the appellant and the respondent workman
with regard to dismissal of five workmen employed by the appellant
company. One of the issue was that before the enquiry was actually
held on June 11, 1952, notice was not given to Malak Ram, one of the
workmen telling him about the specific date of the enquiry. The
Supreme Court held that failure to intimate to the workman concerned
about the date of the enquiry may, by itself, not constitute an infirmity
in the enquiry, but, on the other hand, it is necessary to bear in mind
that it would be fair if the workman is told as to when the enquiry is
going to be held so that he has an opportunity to prepare himself to
make his defence at the said enquiry and to collect such evidence as he
may wish to lead in support of his defence. The Supreme Court held,
on the whole, it would not be right that the workman should be called
on any day without previous intimation and the enquiry should begin
straightaway. The Supreme Court held, such a course should
ordinarily be avoided in holding domestic enquiries. In other words,
the Supreme Court has held that an incumbent should be given
sufficient opportunity/time to consider the evidence, which has come
against him and to collect evidence in support of his defence. In the
case in hand, no such time was given to the petitioner. That apart, if
the material is being shown to the petitioner, on June 16, 2016, surely,
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some time should have been given to the petitioner to enable him to
supplement his appeal already filed by him on June 03, 2016. This
would be in conformity with the concept of fair play in action, which
is the basis of natural justice. That apart, even in these proceedings,
the respondent has not filed, the complete record of the HLEC. In
fact, in some of the connected petitions, a stand has been taken in the
written submissions that only certain documents relied upon by HLEC
were filed before this Court and the entire evidence, documents,
notices and proceedings are maintained by the respondent in its
official files. The same are available for any other scrutiny as and
when the same is requisitioned before the Court. Even if some
depositions were filed along with the written arguments in some
connected cases, the same were in Hindi. They were also filed after
the petitioner‟s counsel, in this writ petition, had advanced the
arguments. Even otherwise, the HLEC report refers to deposition of
some eye witnesses, which are in the deposition files. It is not clear,
who these witnesses are, who are being referred to. All the evidence,
documents, notices and proceedings being in the official files, there
was no occasion for this Court/counsel for the petitioner to look into
the same for a proper appreciation/justification of the impugned
orders.
45. Further, the submission of Mr. Sibal, that the petitioner in his
appeal has raised several grounds but the Appellate Authority has not
dealt with those grounds is appealing. From the perusal of the order
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dated June 03, 2016, it is seen that the petitioner has raised the
following grounds:-
(a) The said Office Order No. 144/CP/2016 and decision to punish
him is based on no enquiry and no material;
(b) The Office Order is contrary to the University Rules of
Discipline and Proper Conduct since no normal procedure was
followed before taking the decision to punish him as required under
Rule 5(1);
(c) The Office Order is further contrary to Rule 5(1) of the Rules
of Discipline and Proper Conduct stipulation of providing him with
due opportunity to defend himself;
(d) The HLEC failed to give him any notice of its proceedings;
(e) the HLEC failed to give him any of the materials on the basis of
which decision was taken to punish him and the Office Order No.
144/CP/2016 was passed;
(f) Scope and ambit of the enquiry was malafide on the part of the
University.
46. Suffice to state, from the reading of the order dated August 22,
2016, it is seen that the Appellate Authority has not dealt with the said
grounds. The Supreme Court in the case reported as (2013) 6 SCC
530 Chairman, Life Insurance Corporation of India and others v. A.
Masilamani, in para 19 held as under:-
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“19. The word “consider”, is of great significance. The dictionary
meaning of the same is, “to think over”, “to regard as”, or “deem to
be”. Hence, there is a clear connotation to the effect that, there must
be active application of mind. In other words, the term “consider”
postulates consideration of all relevant aspects of a matter. Thus,
formation of opinion by the statutory authority, should reflect intense
application of mind with reference to the material available on record.
The order of the authority itself, should reveal such application of
mind. The appellate authority cannot simply adopt the language
employed by the disciplinary authority, and proceed to affirm its
order. (Vide: Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006)
11 SCC 147; and Bhikhubhai Vithlabhai Patel & Ors. v. State of
Gujarat & Anr., AIR 2008 SC 1771).
In view of the aforesaid judgment of the Supreme Court, it is expected
that the Appellate Authority should have disposed off the appeal by a
reasoned and speaking order. This I say so, there is nothing in the
Rule, relating to appeal which says otherwise i.e it is not necessary for
the Appellate Authority to pass a reasoned order.
47. Insofar as the judgments relied upon by Ms. Routray are
concerned, in K.L. Tripathi (supra), the issue, which fell for
consideration was with regard to a challenge to the departmental
enquiry by an employee on the ground that he was not provided
opportunity to cross examine. The Supreme Court held that in the
absence of any lis as to the facts, allegations having been not disputed
by the delinquent officer, no prejudice has been caused.
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48. The issue, which has been considered by me in the
aforementioned paras is only with regard to, whether sufficient
opportunity was given to the petitioner to inspect the documents at the
appellate stage and then submit an appropriate appeal after the
inspection, so as to make the appellate proceedings meaningful and
purposeful. Hence, the judgment would have no relevance.
49. Insofar as the judgment in the case of State of Gujarat v. Pagi
Bhurabhai Rumalbhai (supra), is concerned, in the said case the
Gujarat High Court held that the delinquent has no right to seek a
personal hearing at the appellate stage. In the case in hand, the
personal hearing having been agreed to and granted by the University,
it cannot be contended by Ms. Routray that the personal hearing was
not required.
50. In Ajeet Seeds Limited (supra), para 10 on which the reliance
was placed, relates to a conclusion with regard to Section 114 of the
Evidence Act, which enables the Court to presume that in common
course of natural events, a communication made would have been
delivered at the address of the addressee. A reference was made to
Section 27 of the General Clauses Act, which gives rise to
presumption that service of notice has been effected when it is sent to
the correct address by registered post. The said judgment has no
applicability on the limited issue being considered and decided by this
Court.
51. In Hira Nath Mishra and others v. The Principal, Rajendra
Medical College, Ranchi and another (1973) 1 SCC 805, the
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Supreme Court was concerned with a case where the appellants, the
male students of a Medical College lived in the College hostel. A
confidential complaint was received by the Principal from thirty six
girl students residing in the Girls Hostel of the College alleging that
the appellants with some others at late night had entered into the
compound of the Girls Hostel and walked without clothes on them.
The Principal constituted an Enquiry Committee consisting three
Members of the staff. The identification through photographs was
carried out and the Girls by and large could identify the appellants
from the photographs. The appellants were called before the
Committee one after the other. They were explained the contents of
the complaint. Due care was taken not to disclose the names of the
Girls, who made the complaint. The appellants denied the charges and
said they were in the Hostel at that time. The Supreme Court held as
under:-
(i) The complaint made to the Principal related to an
extremely serious matter as it involved not merely
internal discipline but the safety of the girl students
living in the Hostel under the guardianship of the
college authorities. These authorities were in loco
parentis to all the students-male and female who were
living in the Hostels and the responsibility towards the
young girl students was greater because their
guardians had entrusted them to their care by putting
them in the Hostels attached to the college. The
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authorities could not possibly dismiss the matter as of
small consequence because if they did, they would have
encouraged the male student rowdies to increase their
questionable activities which would, not only, have
brought a bad name to the college but would have
compelled the parents of the girl students to withdraw
them from the Hostel and, perhaps, even stop their
further education. The Principal was, therefore, under
an obligation to make a suitable enquiry and punish
the miscreants.
(ii) The Police could not be called in because if an
investigation was started the female students out of
sheer fright and harm to their reputation would not
have cooperated with the police. Nor was an enquiry,
as before a regular tribunal, feasible because the girls
would not have ventured to make their statements in
the presence of the miscreants because if they did, they
would have most certainly exposed themselves to
retaliation and harassment thereafter. The very
reasons for which the girls were not examined in the
presence of the appellants, prevailed on the authorities
not to give a copy of the report to them. It would have
been unwise to do so.
(iii) Therefore, the authorities had to devise a just and
reasonable plan of enquiry which, on the one hand,
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would not expose the individual girls to harassment by
the male students and, on the other, secure reasonable
opportunity to the accused to state their case. The
course followed by the Principal was a wise one.
(iv) Under the circumstances of the case, the
requirements of natural justice were fulfilled, because
principles of natural justice are not inflexible and may
differ in different circumstances.”
From the above, it is noted that, keeping in view the nature of
allegations against the male students; to protect the identity of the
complainants, the girl students, the Supreme Court had upheld, the
nature of enquiry conducted by the University as being in compliance
with the principles of natural justice. The aforesaid judgment of the
Supreme Court has no applicability in the facts of this case and also on
the limited issue that is being decided by this Court.
52. Insofar as the judgment of the Supreme Court in the case of
Suresh Koshy George (supra) is concerned, in para 7 on which
reliance was placed by Ms. Routray, the Supreme Court was
considering a submission that the Vice Chancellor had not made
available to the appellant a copy of the report submitted by the Inquiry
Officer before asking him to make a representation. The Supreme
Court rejected the contention by holding that the enquiry was held
after due notice to him and in his presence. He was allowed to cross
examine the witnesses examined in the case and he was permitted to
adduce evidence in rebuttal of the charge. The Supreme Court also
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held, no Rule was brought to its notice, which stipulated the supply of
report. The Supreme Court also observed that it was not the case of
the appellant that he had asked for the copy of the report, which was
denied to him. The judgment relied upon by Ms.Routray is
distinguishable, inasmuch as the petitioner did not participate in the
proceedings/the proceedings were held in his absence. Further, the
Appellate Authority itself has offered to allow inspection of the
documents/record of HLEC. The petitioner had asked for the
documents/record/material in his appeal dated June 03, 2016. The
Appellate Authority having allowed the inspection, reasonable time
should have been given to the petitioner to supplement the appeal
already filed by him on June 03, 2016. The judgment has no
applicability, at least on the limited issue that is being decided by this
Court.
53. Insofar as the judgment of the Allahabad High Court in the case
of Ram Chander Roy (supra) wherein reliance was placed on paras
24 and 25, relates to the power of the Vice Chancellor to impose any
punishment in maintaining the discipline of the University. There is
no dispute on the said proposition of law. Insofar as the plea that the
right of cross examination was denied is concerned, the High Court
held that it was not convinced that in a case where Head of an
Educational Institution takes disciplinary proceedings, it is necessary
that he must give an opportunity to the student to cross examine the
witnesses, who may be examined by him in order to satisfy himself
that an occasion has arisen for taking disciplinary action against him.
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In matter of discipline, the Head of Educational Institution does not
act as a judicial or a quasi judicial Tribunal. The Disciplinary power
vested in any Officer or the Head of an Institution is a power which is
absolutely necessary for and ancillary to the exercise of administrative
functions in that capacity. Suffice to state, 32(5) of the Statutes of the
University lays down the procedure. In any case, as stated above, on a
limited issue, which is being decided, this judgment would not have
any applicability.
54. In State Bank of Patiala and Others v. S.K. Sharma (supra),
Ms. Routray who relied upon para 35 to contend that no prejudice has
resulted to the petitioner on account of non furnishing him the copy of
the statements of witnesses as it cannot be said that he did not have a
fair hearing is concerned, there is no dispute on the proposition, in
view of the position of law noted above, but the limited time given by
the Appellate Authority to the petitioner to inspect the
documents/material/record and to give a hearing on the same day
would not be in conformity with the principles of natural justice.
Surely, the Authority empowered under the Statute is required to give
a reasonable opportunity to make the very purpose of the power being
exercised by such Authority meaningful.
55. Insofar as State Bank of Punjab and others v. Bakhshish
Singh (supra) is concerned, there is no dispute that the Court cannot
sit as an Appellate Authority over and above the conclusion of the
Disciplinary Authority that a particular act was a gravest act of
misconduct warranting dismissal. As stated above, on the limited
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issue that is being decided by this Court, this judgment would have no
relevance.
56. Insofar as Chief Commissioner of Income Tax
(Administration), Bangalore v. V.K. Gururaj and others (supra) is
concerned, the said judgment is on the proposition of deemed service,
which in any case has no applicability for the reasons already stated.
57. Insofar as the judgment in the case of V. Ramana v. APSRTC
and Ors (supra) is concerned, the same relates to the issue of judicial
review with regard to punishment. The same has no applicability in
view of limited issue that is being decided by this Court.
58. Insofar as the reliance placed by Ms. Routray on the judgment
of M.V. Bijlani (supra) is concerned, in view of the limited issue that
is being decided by this Court, this judgment would have no
relevance.
59. In view of my above discussion, the writ petition is allowed to
the extent that the Appellate Order dated August 22, 2016 is set aside
and the matter is remanded back to the Appellate Authority with a
direction to grant an opportunity of inspection to the petitioner, the
record of the HLEC for two continuous days during office hours only
by notifying the date and time to the petitioner for the same and upon
such inspection, the petitioner shall have one week time to file a
Supplementary Appeal, upon which the Appellate Authority shall give
a hearing to the petitioner on a date and time fixed by the Appellate
Authority, who thereafter shall, by considering the appeal(s) already
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filed by the petitioner and the Supplementary Appeal, if any, pass a
reasoned order as expeditiously as possible preferably within six
weeks thereafter. Till such time, the order dated April 25, 2016 shall
not be given effect to. It is also made clear in view of the undertaking
given by the petitioner in W.P.(C) No. 4142/2016 the petitioner shall
not indulge in any strike or dharna or agitation or coercive action in
future in connection with the issue, till such time the proceedings
between the parties attain finality. No costs.
CM No. 32348/2016 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
OCTOBER 12, 2017
ak
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