# Kriti Giri v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 401
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-22
- **Case number:** WRIT - C No. 14950 of 2020
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kriti-giri-v-state-of-u-p-ors-45413
- **Pages:** 6

## Headnote

C.S.C.

Petitioner's
semester
examination
for
2019-2020
cancelled
and
she
would
appear in 2020-2021-charges of unfair
means
by
general
order
for
194
candidates-without any indication that
explanation
of
Petitioner
was
been
considered-Fresh order to be passed-W.P.
disposed.

Held,
Having
regard
to
the
foregoing
discussion,the necessary implication would be
that a person proceeded against is to be
informed about the material on the basis of
which the allegations made against him are
founded so that he may have an opportunity of
furnishing his explanation and putting forward
his version. Thereafter, it would be for the
authority concerned to evolve its own procedure
so as to afford an opportunity to the person
concerned. The procedure may vary with the
facts, circumstances and nature of the case but
the authority would be required to accord
consideration to the explanation furnished and
to take a decision in a fair and nonpartisan
manner. (para 22)

W.P. disposed. (E-9)

List of Cases cited:-

1.Triambak Pati Tripathi v The Board of High
School
and
Intermediate
Education,U.P.,
Allahabad, AIR 1973All 1

2.Board
of
High
School
&
Intermediate
Education, U.P., Allahabad & anr. v Bagleshwar
Prasad & anr., AIR 1966 SC 875

## Text

11 All. Kriti Giri Vs. State of U.P. & Ors.
401
action and remit the matter back to the
authority concerned to take a fresh
decision.

39. In our view, every violation of a
facet of natural justice may not always lead to
the conclusion that order passed is always
null and void. The validity of the order is to
be tested on the touchstone of 'prejudice' and
in a case where the petitioner is not able to
demonstrate real likelihood or certainty of
prejudice, this Court may refuse to exercise
its discretionary jurisdiction to interfere in the
matter.

40. As regards the question whether the
blacklisting can be for an indefinite period,
we may reiterate that though blacklisting or
debarment is recognised as an effective tool
for disciplining deviant contractors but the
debarment is never to be a permanent nature.
In this regard, we may refer to the
observations made in the judgment of the
M/s Kulja Industries Limited vs. Chief
General Manager, W.T. Project, BSNL &
Ors.7, which are as follows :-

"25.
Suffice
it
to
say
that
''debarment' is recognised and often used as
an effective method for disciplining deviant
suppliers/contractors
who
may
have
committed acts of omission and commission
or
frauds
including
misrepresentations,
falsification of records and other breaches of
the regulations under which such contracts
were allotted. What is notable is that the
''debarment' is never permanent and the
period of debarment would invariably depend
upon the nature of the offence committed by
the erring contractor."

41. The aforementioned legal position
that blacklisting or debarment for an
indefinite period was not permissible in law
was reiterated in B.C. Biyani Projects Pvt.
Ltd. Vs. State of M.P. & Ors.29 and also
the judgments of this Court in M/s.
Vindhyawasini T. Transport Vs. State of
U.P. and others1 and M/s Baba Traders
Vs. State of U.P. and others19.

42. Although, the order impugned in
the present case does not provide for a
specific
time
period
for
which
the
petitioner has been blacklisted, it is
worthwhile to take notice of the fact that
the disability or ineligibility of the
petitioner to be awarded the contract in
view of the undisputed fact that his mother
is the owner of a rice mill would continue
as long as there is no variation in the
eligibility criteria contained under the
policy guidelines issued in terms of the
relevant government orders. In the event,
the eligibility criteria are varied or
modified at a subsequent point of time and
the petitioner comes within the prescribed
eligibility criteria, it would always be open
to him to apply before the authority
concerned for withdrawing the order of
blacklisting.

43.

Subject
to
the
aforesaid
observations, the petition stands dismissed.
----------
(2020)11ILR A401
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2020

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

WRIT - C No. 14950 of 2020

Kriti Giri ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shree Prakash Giri, Sri Sujeet Sinha
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

Petitioner's
semester
examination
for
2019-2020
cancelled
and
she
would
appear in 2020-2021-charges of unfair
means
by
general
order
for
194
candidates-without any indication that
explanation
of
Petitioner
was
been
considered-Fresh order to be passed-W.P.
disposed.

Held,
Having
regard
to
the
foregoing
discussion,the necessary implication would be
that a person proceeded against is to be
informed about the material on the basis of
which the allegations made against him are
founded so that he may have an opportunity of
furnishing his explanation and putting forward
his version. Thereafter, it would be for the
authority concerned to evolve its own procedure
so as to afford an opportunity to the person
concerned. The procedure may vary with the
facts, circumstances and nature of the case but
the authority would be required to accord
consideration to the explanation furnished and
to take a decision in a fair and nonpartisan
manner. (para 22)

W.P. disposed. (E-9)

List of Cases cited:-

1.Triambak Pati Tripathi v The Board of High
School
and
Intermediate
Education,U.P.,
Allahabad, AIR 1973All 1

2.Board
of
High
School
&
Intermediate
Education, U.P., Allahabad & anr. v Bagleshwar
Prasad & anr., AIR 1966 SC 875

3. Wiseman & anr. v Borneman & ors., (1969) 3
WLR 706

(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Sujeet Sinha, learned
counsel for the petitioner, Sri Pratik Chandra,
learned counsel for respondent nos. 2 & 3 and
Sri Shailendra Singh, learned standing
counsel appearing for respondent no.1.

2. The present writ petition has been
filed principally seeking to raise a challenge
to an order/office memorandum dated
06.08.2020
issued
by
the
respondent
no.3/Examination Controller of the university
whereby
the
petitioner
has
been
communicated that her semester examination
for the session 2019-2020 has been cancelled
and that she would appear in the said
semester examination during the session
2020-2021.

3. Upon the writ petition being taken up
on 13.10.2020, this Court noticed the facts of
the case and passed an order in the following
terms:-

"...It is contended that the petitioner
is a student of L.L.B., IIIrd Semester and
during the examination of Trust & Equity,
she was found using unfair means. An
explanation was sought by a letter of the
Examination Controller of the concerned
University on 26th February, 2020. The
petitioner submitted explanation through Email on 05.12.2019 and through Registered
Post on 09.12.2019 denying the charges of
unfair means. By the order dated 06.08.2020,
194 students had been held guilty of using
unfair means and petitioner is placed at serial
no.182 of the said list which has been brought
on record as Annexure No.7 to this writ
petition.

It is contended that the Controller
of
Examination
has
not
decided
the
explanation so submitted by the petitioner
and by a general order the explanation of 194
students has been rejected as using of unfair
means on 06.08.2020 along with list of the
candidates.

Matter requires consideration.
11 All. Kriti Giri Vs. State of U.P. & Ors.
403

Let a counter affidavit be filed by
the concerned University within a week.

Put up this case as fresh on
22.10.2020."

4. Counter affidavit on behalf of
respondent nos.2 and 3 has been filed by
the Deputy Registrar (Legal) of the
respondent university today which is taken
on record.

5. Counsel for the petitioner submits
that the relevant material is already on
record alongwith the writ petition and that
he does not wish to file a rejoinder
affidavit.

6. With the consent of the parties the
writ petition is taken up for final disposal.

7. As per the pleadings in the writ
petition, charges of use of unfair means
were levelled against the petitioner in
regard to the paper of "Trust & Equity" of
the L.L.B. 3rd semester examination. It is
submitted that the petitioner had submitted
a detailed representation by means of an
email dated 05.12.2019 and also by
registered post dated 09.12.2019 addressed
to the Examination Controller of the
respondent university. In the representation
the
petitioner
had
submitted
her
explanation and denied the allegation of
use of unfair means.

8. Attention of this Court has been
drawn to the office memorandum dated
26.02.2020, issued by the respondent
no.3/Examination
Controller
of
the
University enclosing therewith a list of
candidates against whom there were
charges of use of unfair means and
containing directions to the Principals of
the concerned colleges to obtain the
explanation of the candidates so as to
ensure that before any action is taken the
version
of
the
candidates
may
be
considered
in
consonance
with
the
principles of natural justice. The office
memorandum dated 26.02.2020 reads as
under:-

Þi=kad%
izks0jk0fl0fo0fo0@i0fu0dk0@589@2020
fnukad% 26 Qjojh] 2020
dk;kZy;&Kki

fo'ofo|ky;
dh
fo"ke
lsesLVj
ijh{kk&uoECkj] 2019 ds nkSjku ftu ijh{kkfFkZ;ksa
dks O;fDrxr@lkewfgd :i ls vuqfpr lk/ku
iz;ksx djrs gq, vkjksfir fd;k x;k gS] mudks
izkd`frd U;k; ds vuqikyu esa mfpr dk;Zokgh
djus ls iwoZ mudk i{k tkuus ds fy, lEcfU/kr
ijh{kkfFkZ;ksa dh lwph izsf"kr dh tk jgh gSA

vr,o layXu lwph esa mfYyf[kr
ijh{kkfFkZ;ksa rFkk muds egkfo|ky; ds izkpk;ksZa ls
eq>s ;g dgus dk funs'k gqvk gS fd fo'ofo|ky;
}kjk miyC/k djk;s x;s vuqfpr lk/ku iz;ksx esa
vkjksfir ijh{kkfFkZ;ksa dks vius Lrj ls lwfpr djas
rFkk 10 dk;Z fnolksa ds vUrxZr mudk
Li"Vhdj.k fo'ofo|ky; ds Mkd@i= izkfIr
dk;kZy; eas gkMZdkih vFkok fo'ofo|ky; dh
bZ&esy% coeasua@gmail.com ij miyC/k
djkuk lqfuf'pr djsa] ftlls fd muds izdj.kksa
dk le; ls fuLrkj.k lqfuf'pr fd;k tk ldsA
lEcfU/kr ijh{kkfFkZ;ksa dh lwph fooj.k lfgr
layXu Gsa

laYkXud& fo"ke lsesLVj ijh{kk&
uoEcj] 2019 esa vuqfpr lk/ku iz;ksx ls lEcfU/kr
ijh{kkfFkZ;ksa dh lwphAÞ

9. In response the petitioner submitted
another reply dated 03.03.2020 reiterating
the facts stated in the explanation furnished
by her through email dated 05.12.2019 and
registered post dated 09.12.2019.

10.

Thereafter,
the
impugned
order/office
memorandum
dated
06.08.2020 has been issued by the
Incharge, Controller of Examination of
404 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent university whereby the decision
of the "unfair means committee" has been
communicated to the candidates. The name
of the petitioner finds mention at serial
no.182 of the list appended to the aforesaid
office memorandum and the decision of the
unfair means committee reads as under:-

ÞNk=@Nk=k dh l= 2019&20 dh
fo"ke lesLVj ijh{kk fujLr dh tkrh gSA og l=
2020&2021 esa lEcfU/kr fo"ke lsesLVj dh ijh{kk
esa lfEefyr gksxk@gksxhAÞ

11. The contention of the learned
counsel for the petitioner is that the
decision of the unfair means committee, as
communicated in terms of the office
memorandum dated 06.08.2020, does not
indicate any reason for cancelling the 3rd
semester examination of the petitioner and
there is absolutely no consideration of the
reply/explanation which had been furnished
by the petitioner. It is submitted that the
entire exercise by the respondent university
is in violation of the principles of natural
justice and cannot be legally sustained.

12. The aforementioned contention
was noticed by this Court in its order dated
13.10.2020 and thereafter the respondent
university was directed to file a counter
affidavit. In response thereof the counter
affidavit which has been filed today on
behalf of respondent nos.2 and 3 states that
the unfair means committee considered the
case of 300 students and finally issued the
order
dated
06.08.2020
against
194
candidates while 106 candidates were
found not liable by the unfair means
committee. There is absolutely no whisper
in the counter affidavit that the reply of the
petitioner containing her explanation was
considered by the unfair means committee
before a final decision was taken. The
counter affidavit merely reiterates the
allegations in regard to which the petitioner
had given her explanation by means of the
e-mail dated 05.12.2019 and also vide letter
dated 09.12.2019 sent by registered post.

13. The decision of the unfair means
committee, which has been communicated
to the petitioner by means of the office
memorandum dated 06.08.2020 only states
that the semester examination of the
petitioner for the session 2019-2020 stands
cancelled and that the petitioner would
appear in the semester examination to be
held for the session 2020-2021. Although
the office memorandum contains a recital
to the effect that the representations
submitted by the candidates had been
considered, the remark mentioned against
the name of the petitioner in the list
appended thereto does not contain any
reason for the decision arrived at by the
unfair
means
committee.
The
office
memorandum contains a general order in
respect of the list of 194 candidates
appended therewith, without any indication
that the explanation submitted by the
petitioner wherein she had denied the
charges of use of unfair means had been
considered by the unfair means committee
before coming to its decision.

14. No material has been placed on
record to demonstrate that the directives
contained in the earlier office memorandum
dated
26.02.2020
issued
by
the
Examination Controller of the respondent
university with regard to consideration of
the reply/explanation of the candidates
concerned in accordance with the principles
of natural justice while examining the
charges of unfair means against them, has
been followed.

15. Despite time having been granted
to the respondent authorities of the
11 All. Kriti Giri Vs. State of U.P. & Ors.
405
university to submit their version in respect
of the contention of the petitioner that her
reply/explanation had not been considered
by the "unfair means committee" while
holding her guilty of the charges, the
counter affidavit which has been filed also
does not refer to any material to show that
the reply/explanation which had been
called for by the respondent university
itself in terms of its earlier office
memorandum
dated
26.02.2020,
was
considered by the unfair means committee
while arriving at the decision under which
the examination of the petitioner for the
semester examination has been cancelled.

16. It is no doubt true that ordinarily
the Court would not interfere in decisions
taken
by
the
educational
authorities
particularly with regard to a matter relating
to examinations and that the standards and
the purity of the examination process is to
be maintained and with this objective in
mind the action taken by the educational
institutions in cases where unfair means
have been adopted, is usually sustained.

17. At the same time, it cannot be
denied that any action taken by the
educational authorities in this regard is
required to conform to standards of fairness
and the action taken should be free from
arbitrariness. This is moreso in a case
where the consequence of any decision
declaring a candidate as having used unfair
means has the effect of tainting his/her
academic career with a blot and has further
adverse civil consequences. It is for this
reason that before holding the examinee
guilty of the charges of use of unfair means
his/her explanation ought to be called for
and accorded consideration.

18. This consideration of the
explanation furnished by the candidate is
required to be made in a manner which is
bona fide and should not be an empty
formality.

19. The applicability of the principles
of natural justice in matters relating to an
enquiry into the use of unfair means in
examinations fell for consideration before a
Full Bench of this Court in Triambak Pati
Tripathi v The Board of High School and
Intermediate
Education,
U.P.,
Allahabad1, and it was held that the
essential principles which are to be
observed in this regard include giving of
notice of the charges and an opportunity to
make a representation to explain the
allegations and that the proceedings to be
conducted by the authority should be in
good faith and should not be biased.

20. A similar view had been taken in
an earlier decision in Board of High
School and Intermediate Education,
U.P.,
Allahabad
and
another
v
Bagleshwar Prasad and another2, which
was also a case in respect of charges of use
of unfair means, and it was held that
enquiries in this regard should be fair and
students against whom charges are framed
must be given adequate opportunity to
defend themselves and principles of natural
justice should be followed.

21. The principle that natural justice
requires the procedure to be fair in all
circumstances
was
emphasised
in
Wiseman and another v Borneman and
others3 and it was stated by Lord Morris
of Borth-Y-Gest, as follows:-

"The principles and procedures
are to be applied which, in any particular
situation or set of circumstances, are right
and just and fair. Natural justice, it has
been said, is only fair play in action."
406 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Having regard to the foregoing
discussion the necessary implication would
be that a person proceeded against is to be
informed about the material on the basis of
which the allegations made against him are
founded so that he may have an opportunity
of furnishing his explanation and putting
forward his version. Thereafter it would be
for the authority concerned to evolve its
own procedure so as to afford an
opportunity to the person concerned. The
procedure may vary with the facts,
circumstances and nature of the case but
the authority would be required to accord
consideration to the explanation furnished
and to take a decision in a fair and nonpartisan manner.

23. In the present case no material has
been placed on record by the respondents to
demonstrate that the authorities have
accorded consideration to the explanation
furnished by the petitioner against whom
an order having adverse civil consequences
has been passed.

24. Sri Pratik Chandra, learned
counsel appearing for respondent nos.2 and
3 has not disputed the aforesaid legal and
factual position and fairly submits that the
reply/explanation
submitted
by
the
petitioner would be duly considered by the
respondent no.3 within a period of two
months from today and a fresh order would
be passed.

25.

Having
regard
to
the
aforementioned facts and circumstances
and as agreed to by the counsel for the
parties, the writ petition is disposed of
leaving it open to respondent nos.2 and 3 to
pass
an
order
after
according
due
consideration
to
the
reply/explanation
submitted by the petitioner within a period
of two months from the date of presentation
of a copy of this order. The order/office
memorandum dated 06.08.2020, in so far as
it relates to petitioner, shall abide by the
fresh order to be passed as aforesaid.

26. It is made clear that this Court has
not expressed its view with regard to the
merits of the claim of the petitioner.
----------
(2020)11ILR A406
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE VIVEK VARMA, J.

WRIT - C No. 15581 of 2020

M/s. Rafiq Traders & Ors. ...Petitioners
Versus
D.M., Jalaun Place Orai & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Vineet Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Satish Chaturvedi, Sri P.P.
Srivastava

Civil Law- SERFAESI Act,2002-Section 13
(2)
&
13
(4)-
Proceedings
against
Petitioner u/s 13 (2) and 13 (4)-against
which Writ filed-same was dismissed for
availability of alternative remedy u/s
17(1) of the Act-Bank has instituted Suit
for
recovery
of
outstanding
dues-is
pending-meanwhile-District
mgistrate
passed an order u/s 14(1) of the Act for
taking possession of property-There is no
violation of natural justice-Petitioner not
availed
the
alternative
remedy
and
cocealed the same-no illegality in the
order impugned.

W.P. dismissed. (E-9)

List of Cases cited:-