# Abhay Kumar Tripathi v. State of U.P. and others

- **Citation:** (2006) 2 ILRA 944
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-27
- **Case number:** Civil Misc. Writ Petition No. 69970 of 2005
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhay-kumar-tripathi-v-state-of-u-p-and-others-40700
- **Pages:** 6

## Headnote

Constitution of India Act 226,-Use of
unfair means -by notice of 10.06.05
university charged the petitions for
attempting the answer in paper III
economics :- Petitioner send reply on
20.9.05- No specific finding about use of
there chits in the answer book for
arbitrary attitude of the anchorites loss
of 2 year carriers of petitioner can not be
over sighted general mandamus issued
with certain necessary guide lines for
university:

Held- Para 8

It must be borne in mind that where the
career of a young man is at stake, every
body concerned must be anxious that if
the charge of malpractice is being
pursued the enquiry should be brought
to as speedy a conclusion as possible and
should be conducted in such a manner as
to give not the least room for complaint.
In the instant case, the loss of two years
is a big blow to the career of the
petitioner and delay in the matter can
safely be attributed to the indifference
and arbitrary attitude of the authorities
concerned. In the circumstances, it
would be in the fitness of things that the
Court should take proactive attitude to
repair the loss and harassment suffered
by the petitioner.

## Text

944 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
payable at the rate of Rs.3000/- per month
since after six months till actual vacation.

 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 69970 of 2005

Abhay Kumar Tripathi
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Aditya Kumar Tripathi
S.C.

Counsel for the Respondents:
Sri Neeraj Tiwari
S.C.

Constitution of India Act 226,-Use of
unfair means -by notice of 10.06.05
university charged the petitions for
attempting the answer in paper III
economics :- Petitioner send reply on
20.9.05- No specific finding about use of
there chits in the answer book for
arbitrary attitude of the anchorites loss
of 2 year carriers of petitioner can not be
over sighted general mandamus issued
with certain necessary guide lines for
university:

Held- Para 8

It must be borne in mind that where the
career of a young man is at stake, every
body concerned must be anxious that if
the charge of malpractice is being
pursued the enquiry should be brought
to as speedy a conclusion as possible and
should be conducted in such a manner as
to give not the least room for complaint.
In the instant case, the loss of two years
is a big blow to the career of the
petitioner and delay in the matter can
safely be attributed to the indifference
and arbitrary attitude of the authorities
concerned. In the circumstances, it
would be in the fitness of things that the
Court should take proactive attitude to
repair the loss and harassment suffered
by the petitioner.

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Impugned herein is the notice
dated
10.6.2005
issued
under
the
signatures
of
Asstt.
Kul
Sachiv
(Confidential) Chhatrapati Sahuji Maharaj
University, Kanpur Nagar (hereinafter
referred to as the University) served to the
petitioner listing therein the charge that
the petitioner had used unfair means in
the course of attempting the answers of
question paper no. III (Economics) while
appearing in B.A.III year examination and
further that one printed piece of paper was
seized from his possession.

2. It would transpire from the record
that reply to the aforesaid notice was
submitted on 20.9.2005 by the petitioner
but result of the aforesaid examination
was not declared and hence, the present
petition came to be instituted seeking the
relief that respondent no.2 be directed to
declare result of the petitioner of B.A. 3rd
year examination conducted in the year
2005.

3. This Court, by means of order
dated 10.11.2005 granted one month's
time to produce relevant record attended
with the direction to also file counter
affidavit. Sri Neeraj Tiwari, appearing for
the University, filed counter affidavit
today and also supplementary counter
affidavit. Alongwith the supplementary
counter affidavit, the learned counsel has
also filed copy of order dated 25.7.2005
2 All] Abhay Kumar Tripathi V. The State of U.P. and others
945
by which the Asstt. Registrar issued a
letter informing that petitioner's result of
B.A. Part III conducted in the year 2005
was cancelled further informing that he
has been permitted to re-appear in
examination to be held in the year 2006.

4. Learned counsel for the petitioner
repudiated the contention that copy of
order-dated
25.7.2005
was
ever
communicated or served to the petitioner
by the Asstt. Registrar concerned at the
same time stating that the said letter has,
for the first time, seen the light of the day
today through the supplementary counter
affidavit filed today. The original record
as demanded by the order aforestated, was
produced by Sri Neeraj Tiwari, learned
counsel for the University before this
Court today. Learned counsel for the
petitioner canvassed that as a matter of
fact no charge sheet was served to the
petitioner although it is claimed to have
been issued by the office and further that
subsequently, the petitioner obtained
duplicate charge-sheet. It is further
canvassed that the charges levelled
against the petitioner as contained in the
notice are scrappy, nebulous and vague
inasmuch as it does not disclose in
specific terms that the alleged offending
printed material had any nexus to the
alleged
copying
while
attempting
Economic paper no. III or that it was ever
seized from the possession of the
petitioner or from any place easily
accessible to the petitioner. The learned
counsel quipped that the petitioner never
used any unfair means in the examination
nor any offending material was found
from his possession in the examination
hall and lastly, it has been submitted that
the charges levelled against the petitioner
do not stand substantiated from any
material on record. The learned counsel
also canvassed that the entire procedure
followed by the University in the matter
of use of unfair means by the petitioner
smacks of mechanical exercise of power
without any application of mind. Per
contra,
Sri
Neeraj
Tiwari,
learned
counsel appearing for the University
contended that although it has not been
stated in so many words in the charge
sheet whether mutilated printed paper had
any - nexus to the same subject or that it
was used for the said purpose but it is
amply eloquent from the record that the
petitioner made use of the offending paper
for copying in the said examination. The
learned counsel also drew attention to the
fact that the unfair means Committee
examined the materials and in the ultimate
analysis found the petitioner guilty of
using unfair means in the examination.

5. I have bestowed my anxious
consideration
upon
the
arguments
advanced across the bar and have also
scanned very closely the materials on
record. I have also been taken through the
finding of the Unfair Means Committee.
As stated supra, the charge listed out
against the petitioner was that he used
unfair means or attempted to use the
unfair means for copying. There is
nothing clinching in the finding recorded
by the Committee that the petitioner either
used or attempted to use the unfair means
in the examination while attempting
Economic paper no. III. The committee
has drawn a presumption without any
valid justification that petitioner might
have used materials which amounts to
using the unfair means in the examination
on the basis of alleged recovery of a torn
half-page printed piece of paper which
has not been proved to have been found
from the possession of the petitioner. I
have searched the entire record and there
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
is nothing on record that the offending
material was found or recovered from the
actual possession of the petitioner or it
was found either from the desk or from a
place easily accessible to him near the
desk where the petitioner was sitting
while writing the answers. It is also
worthy of notice here that there is no
shade of allegation either in the chargesheet or anywhere else in the entire record
that the petitioner had made use of torn
printed paper or any other offending paper
for copying or he attempted to make use
of the offending piece of paper or that
during the course of examination, he was
caught
inflagrante
delicto
by
the
invigilator or any member of the flying
squad. Yet another circumstance worthy
of notice in this case is that the torn piece
of paper alleged to have been recovered
from the possession of the petitioner did
not bear signature of the petitioner. In the
circumstances it makes sense that in case
offending piece of paper had been
recovered from the possession of the
petitioner, the signature of the petitioner
must have been obtained thereon. I have
every reason to believe that the petitioner
in attempting any of the questions did not
appropriate for copying any offending
piece of paper. There is nothing in the
charge sheet that the petitioner could have
used the material in examination found
from his possession.

Another aspect worthy of notice here
is that though charge-sheet is claimed to
have been issued by the office but there is
no evidence on record that it was ever
served to the petitioner and subsequently,
the petitioner obtained duplicate charge
sheet from the office containing charges
against him and submitted his explanation
which it would further appear from the
record was not taken into reckoning by
unfair means committee and further that
the reasons recorded are not persuasive
that offending piece of paper had been
used in attempting the questions. It is also
not clear as to from what place, the
offending piece of paper was found kept
or was recovered. The Court in the above
perspective is of the view that charges
framed against the petitioner as contained
in the notice are vague, nebulous and hazy
and have not been framed with the
required clarity to show that the petitioner
used unfair means or attempted to use
unfair means or that the offending piece
of
paper
was
recovered
from
his
possession. To be precise, the inescapable
conclusion is that the no charge-sheet was
served to the petitioner and further that
subsequently, duplicate charge-sheet was
obtained by the petitioner from the office
and submitted his reply which was not
taken into reckoning. From a close
scrutiny of the charge sheet it would also
transpire that the charge sheet lacked
requisite details in absence of which
effective reply could not be submitted and
any action on the basis of charge sheet
would occasion gross injustice to the
petitioner.

6. In the above conspectus, the
irresistible
conclusion
is
that
the
petitioner did not make use of any unfair
means
in
attempting
question
of
Economic paper no. III, while appearing
in B.A. III year examination.

7. The Court feels constrained to
observe that the belated disposal of such
matter imperils the career of a student and
in such matters it is expected that the
authorities must act with alacrity and
promptitude. In the matter at hand, the
charge of copying is attributed to the
petitioner while attempting answer to
2 All] Abhay Kumar Tripathi V. The State of U.P. and others
947
Economic III paper on 22.3.2005 while
charge sheet alleged to be issued to the
petitioner is dated 10.6.2005 though it
was never served to the petitioner as
stated
supra.
In
this
connection,
averments made in para 9 of the writ
petition may be noticed in which it is
clearly stated that charge-sheet alleged to
have been issued was never received or
served to the petitioner. In the counter
affidavit in reply to the above averments,
it has not been denied that the petitioner
was previously served charge sheet and
all that has been stated is that the charge
sheet was issued to the petitioner. In this
view of the matter, the averment that no
charge sheet was served to the petitioner
commends itself for acceptance. It would
appear from the record that after obtaining
duplicate copy of charge sheet, the
petitioner
submitted
his
reply
on
20.9.2005.
The
impugned
order
conveying decision of cancellation of
examination is dated 25.7.2005 though it
also was not served to the petitioner and
the learned counsel minced no words to
say that this order annexed to the
supplementary counter affidavit never
saw the light of the day earlier nor it was
served to the petitioner. Yet another
circumstance worthy of notice is that the
charge-sheet framed is on printed form
and the charges embodied therein are
vaguely spelt out and few choice-drawn
charges made applicable to the petitioner
have been merely right-clicked. By this
reckoning, it is implicit that reply of the
petitioner dated 20.9.2005 submitted after
obtaining duplicate copy of charge sheet
was not taken into reckoning as the
impugned
order
annexed
to
the
supplementary
counter
affidavit
had
already been passed on 25.7.2005. This
shows that the petitioner was seriously
prejudiced on account of his not being
afforded opportunity of submitting reply
to the charges. All this goes to show that
the authorities acted indifferently and
arbitrarily and in a manner, which was
fraught with the consequence of dallying
with the career of the students. It is indeed
shocking that the charge sheet was never
served to the petitioner and subsequently,
reply submitted by the petitioner after
obtaining duplicate charge-sheet was not
taken into reckoning and as a result, it can
well be said that the indifferent and
arbitrary
attitude
of
the
authorities
resulted in spoiling two precious year of
the petitioner. In the circumstances, I feel
compelled
to
lay
down
following
guidelines for edification of all the
university authorities in the State of U.P.

1. That the charge sheet so issued must
contain definite charges expressed
with clarity whether the student
actually made use of unfair means or
attempted to use the unfair means or
may have used the same or the
offending
material
from
which
copying is alleged was recovered
from the possession of the student or
it was recovered from a place
accessible to the student or from any
other place or that the offending
material was smuggled into for
copying by the student from other
side or that the student cribbed from
the student nearby or next to him and
such charges must be propped up
with relevant evidence on record.
2. That it must be mentioned with
clarity in the charges as to which of
the offending material was used by
the student while attempting a
particular question and from which
place the material used for copying
was recovered.
948 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
3. That the authority concerned must be
held
responsible
for
serving
personally the charge-sheet. In case,
charge sheet so issued is not received
by the student concerned, it would be
deemed that no charge sheet has been
served to the student and in that
event, benefit would accrue in favour
of the student and the authority
concerned would be held responsible
for spoiling the career of a student.
4. That the authority concerned charged
with
the
duty
of
conducting
proceeding in the event of charge of
copying being foisted upon the
student,
shall
ensure
that
the
proceedings are taken to some
finality within a specified period i.e.
within a period not exceeding three
months from the of incidence of
copying or from the last date on
which the examinations come to a
close.
5. That the order in this connection
shall be informed with reasons and
no printed form will be used by the
authority as has happened in the case
in hand.
6. That the offending material if found
from the possession of the student or
from a place accessible to the
student, must bear signatures of the
student concerned and if student
refuses
to
sign
the
offending
material/paper recovered from his
possession, such refusal must find
mention in the charge-sheet.
7. That the charge-sheet shall be framed
separately informed with requisite
details in each case and no printed
form will be used by authority.

8. It must be borne in mind that
where the career of a young man is at
stake, every body concerned must be
anxious that if the charge of malpractice
is being pursued the enquiry should be
brought to as speedy a conclusion as
possible and should be conducted in such
a manner as to give not the least room for
complaint. In the instant case, the loss of
two years is a big blow to the career of the
petitioner and delay in the matter can
safely be attributed to the indifference and
arbitrary
attitude
of
the
authorities
concerned. In the circumstances, it would
be in the fitness of things that the Court
should take proactive attitude to repair the
loss and harassment suffered by the
petitioner.

9. In the result, the writ petition is
allowed with costs. The order dated
25.7.2005
(Annexure
1
to
the
supplementary
counter
affidavit)
canceling
the
examination
of
the
petitioner is quashed and in consequence
it is directed that the University shall take
all necessary steps for evaluation of the
copy of Economic III paper of B.A. III
year and declare the result within 15 days
from the date of production of a certified
copy of this order.

10. Before parting with the case, I
would not refrain from observing that the
petitioner was seriously prejudiced and
damage done to the career of the
petitioner cannot be repaired in terms of
money. In the facts and circumstances of
the case, the petitioner would be at liberty
to claim damages from the authorities
concerned for the loss of two precious
year
on
account
of
lackadaisical,
indifferent and arbitrary approach of the
authorities
concerned,
by
invoking
appropriate remedy permissible to him in
law.

Petition Allowed.
---------
2 All] Abdul Sattar V. Ram Rakshpal
949
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2006

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Second Appeal No. 626 of 2005

Abdul Sattar ...Defendant-Appellant
Versus
Ram Rakshpal ...Plaintiff-Respondent

Counsel for the Appellant:
Sri P.P. Srivastava
Sri Suneet Kumar

Counsel for the Respondent:
Sri K.M. Garg

Code of Civil Procedure Order 22 r 4
readwith High Court Rules-Chapter X
rule-3-Appeal by dead person-affidavit
sworn on 5.7.05-On 3.8.2005 reported
by Stamp Reporter showing limitation
upto 3.8.2005-appeal presented before
court on 1.8.05 in the meantime on
17.7.05 sole appellant died-on 8.8.05
substitution
application
filed-cause
shown
sufficient-delay
in
filing
application
condoned-substitution
application allowed.

Held: Para 7

In the instant case, two applications
under Chapter X Rule 3 of the High Court
Rules supported by an affidavit has been
brought on record seeking permission to
array the legal representatives of the
deceased-appellant Abudl Sattar as the
appellant nos. 1/1 to 1/7. The Judgment
and decree passed in the first appeal is
19.4.2005. The certified copy of the
decree appended with the appeal shows
that it was prepared on 3.5.2005 and the
appellant died subsequent to the passing
of the judgment and preparation of the
decree on 17.7.2005. In fact the appeal
was also reported at the time when the
appellant was alive and, therefore, I
come to a conclusion that this is a fit
case where the benefit of Chapter X Rule
3 of the High Court Rules is available to
the present appellant.
Case law discussed:
AIR 1953 AHO 97
AIR 1976 Alld.-444
2005 (98) RD-636
AIR 1976 Goa-54
AIR 1964 Mysore-293
2(V.61 C-2) C.
AIR 1982 Bomb.
AIR 1934 Alld-25

(Delivered by Hon. Mrs. Poonam Srivastava. J.)

1. Heard Sri P.P. Srivastava, Senior
Advocate assisted by Sri Suneet Kumar,
learned counsel for the appellant and Sri
K.M. Garg, Advocate for the plaintiffrespondent.

2. An objection has been raised at
the very out set regarding maintainability
of this second appeal by Sri K.M. Garg on
the ground that the appeal was instituted
by a dead person. Sri P.P. Srivastava
appearing for the defendant-appellant has
brought to my notice the relevant dates
relating to the present second appeal. The
plaintiff-respondent instituted a suit No.
134 of 1989 before the Civil Judge
(Junior Division), Bijnor for recovery of
possession, damages and mesne profit at
the rate of Rs.500/- per month along with
180/0 interest. The trial court decreed the
suit in part, for recovery of possession and
mesne profit at the rate of Rs.20/- per
month with 18% per annum. The'
defendant-appellant preferred an appeal
vide Civil Appeal No. 25 of 2003 which
was dismissed vide judgment and decree
dated 19.4.2005 by the Additional District
Judge, Bijnor. The present second appeal
was prepared and affidavit filed in support
of the stay application was sworn on
5.7.2005. The appeal was reported on