Memorial For The Petitioner

TEAM CODE: Q
IN THE HONBLE HIGH COURT OF JEEVASTHAN
In the Matter
of
SUNITHA AND AJITH

....PETITIONER
Versus
ST. MARTIN COLLEGE
.RESPONDENT
Memorial on Behalf of the Petitioners
27TH ALL INDIA MOOT COURT COMPETITION 2016

FOR THE KERALA LAW ACADEMY TROPHY

CONTENTS
LIST OF ABBREVIATIONS...3
INDEX OF AUTHORITIES....4
STATEMENT OF JURISDICTION...7
STATEMENT OF FACTS...8
ISSUES RAISED.10
SUMMARY OF PLEADINGS...11
PLEADINGS....13
1. Whether the writ petition is maintainable or not?
2. Whether the Governing Body had the power to formulate and publish the Code of
Conduct for students or not?
3. Whether Rule 10 of the Governing Body is in violation of Article 14, 19(1) (a), (b) and
21 or not?
4. Whether the punishment imposed on the Petitioners is diproportionate to the gravity of
the misconduct or not?
5. Whether there is an error of law apparent on the face of record or not?
PRAYER...30
MEMORANDUM DRAWN AND FILED BY THE PETITIONER

2

LIST OF ABBRIVIATIONS
Abbreviation
Definition
&
And
Paragraph
AIR
All India Reporter
Govt.
Government
Footnote
SC
Supreme Court
SCC
Supreme Court Cases
UOI
Union of India
Versus
SCC
Supreme Court Cases
SCR
Supreme Court Report
r/w
Read With

3

INDEX OF AUTHORITIES
CASES CITED
S.No.
Case
Citation
1.
A. A. Kraipak v Union of India
(7) 1970 SC 150
2.
Airport Authority Case
(1979) 3 SCC 489
3.
Ajay Hasiya v Khalid
(1981) 2 SCR 479
4.
Mujib
Associated Picture House v Wednesbury Corporation
1948 1 KB 223 CA
5.
Bhagat Ram v State of Himachal Pradesh
AIR 1983 SC 454
6.
Chintaman Rao v The State of Madhya Pradesh
AIR 1951 SC 118
7.
E.P. Royappa v State of Tamil Nadu
8.
Francis Coralie Mullin v The Administrator, Union
(1978) 2 SCR 537
9.
Territory of Delhi and Ors.

Gwalior Rayon Silk Mfg. Co. Ltd. v Custodian of
AIR 1990 SC 1747
10.
Vested Forests
In re: Kerala Education Bill
AIR 1958 SC 956
11.
Islamic Academy of Education v State of Karnataka
AIR 2003 SC 3724
12.
K. Krishnamacharyulu and Ors. v Sri Venkateshwara
(1997) 3 SCC 571
13.
Hindu College of Engineering and Anr.

KumKum v Principal, Jesus & Mary College
AIR 1976 Del 35
14.
M. Vijaya v The Chairman, Singareni Collieries and
2001 (5) ALD 522
Ors.

4

15.
Maneka Gandhi v Union of India
1 SCC 248
16.
Marsh v Alabama
(3) 326 U.S. 501
17.
Md. Mobashashir Sarwar v Jamia Millia Islamia
Civil Appeal No. 11 of 2016

(Arising out of SLP (C) No.
18.
Nagar Palika Nigam v Krishi Upaj Mandi Samiti &
2964 of 2015)
AIR 2009 SC 187.
19.
Ors.
Olga Tellis and others v Bombay Municipal
AIR 1986 SC 180
20.
Corporation and Ors.

Omkumar v Union of India
2000 SC 3689
21.
P.A. Inamdar v State of Maharashtra
2005(6) SCC 537
22.
Pathumma and Ors. v State of Kerala and Ors.
AIR 1981 SC 746
23.
Poonam v Sumit Tanwar
AIR 2010 SC 1384
24.
Pradeep Kumar Biswas v Indian Institute of Chemical
(2002) 5 SCC
25.
Biology
Rajasthan SEB v Mohan Lal
AIR 1967 SC 1857
26.
Rev. Sidhajbhai
AIR 1963 SC 540
27.
Romesh Thappar v State of Madras
AIR 1950 SC 124
28.
Shreya Singhal v Union of India
W.P. (Crl.) No. 167 of 2012
29.
Sindhi Education Society v Chief Secretary,
(2010) 8 SCC 49
30.
Government of NCT of Delhi

St. John.s Teachers Training Institute v Regional
(2003) 3 SCC 321.
31.
Director, NCTE
State Bank Of Patiala v S.K.Sharma
AIR 1996 SC 1669

5

32.
State of Kerala v Very Rev. Mother Provincial,
1971 SCR (1)

734.
33.
Sukhdev Singh v Bhagatram
(1975) 1 SCC 421
34.
Tarachand v Municipal Corporation
AIR 1977 AIR 567
35.
TMA Pai Foundation v State of Karnataka
(2002) 8 SCC 481
36.
Ujjam Bai v State of U.P.
AIR 1962 SC 1621
37.
Union of India v G. Ganayutham
(1997) 7 SCC 463
38.
Unni Krishan v State of Andhra Pradesh,
(1993) 1 SCC 645
39.
Vincent v Union of India,
1987 2 S.C.R. 468
40.
Zee Telefilms Ltd. v Union of India
AIR 2005 SC 2677
BOOKS REFFERED
Arvind P. Datar, Commentary On The Constitution Of India (2nd ed. Reprint 2010)
D.D BASU, Introduction to the Constitution (21st ed. 2013)
D.D.Basu, Commentary on the Constitution of India, vol. 6 (8th ed.2012)
D.J. De, Constitution Of India (3rd ed. 2008)
Dr. Durga Basu, Introduction To The Constitution Of India (20th ed. Reprint 2012)
Dr. J.N.Pandey, Constitutional Law Of India (38th ed. 2002)
Dr.Durga Basu, Constitutional Law Of India (8th ed. 2011)
H.M.Seervi, Constitutional Law of India (4th ed.)
Justice G.P. Singh, Principles Of Statutory Interpretation (12th ed.2010) Lexis Nexis,
India
Justice. G.P.Singh, Principles Of Statutory Interpretation (12th ed. Reprint 2011)

6

M.P.Jain, Indian Constitutional Law (5th ed. 2003)

Maxwell, Interpretation Of Statutes (12th ed. 2006) Lexis Nexis, India,
N.S. Bindra, Interpretation Of Statutes (9th ed. 2004) , Lexis Nexis, India
V. Dicey, The Law Of The Constitution (10th ed. 1959)
Vepa. P. Sarathi, Interpretation of Statutes2008 (5th ed.) , Eastern Book Company, India,
STATUTES/REPORTS REFERRED
The Constitution Of India, 1950
The University Grants Commission Act, 1956.
STATEMENT OF JURISDICTION
The High Court of Jeevasthan has jurisdiction to hear this matter under Article 226 of the
Constitution of India. The Petitioners most humbly and respectfully submit to the jurisdiction of
the Court.

7

STATEMENT OF FACTS
I
The University of Jeevasthan is in the state of Jeevasthan which lies in the Union of India. St.
Martin College is a Catholic institution affiliated to the University which is established under
Article 30(1) of the Constitution of India. As per Section 40 of Jeevasthan University Act, 1952:
"The management of every private college affiliated to the University shall constitute a
Governing Body for giving advice on all matters relating to the administration of the college
consisting of following persons:
1. Principal of the college.
2. Two teachers nominated by the Principal.

8

3. Five persons nominated by the management.
4. One person nominated by the University"
The College got recognized as a minority educational institution in 2013 under the National
Commission for Minority Educational Institutions Act, 2004. The Governing Body of the
College formulated and published a Code of Conduct for Students Paragraph 10 of which read,
no male and female student shall sit on the same bench.
II
Sunitha and Ajith are 3rd year B.Com students of the College. On 06.08.2015, the Principal
suspended Ajith and Sunitha from the college stating that, they had violated Paragraph 10 of the
Code of Conduct. The action of the Principal caused to generate serious protest from different
sections, through social media and electronic media. Large number of people criticized the action
of the Principal but a small section supported the action. On 18.08.2015, Principal appointed a
Commission to inquire into the allegations against Sunitha and Ajith.
III
Dr. Sreejith Raju, Head of the Department of Political Science was appointed as single member
Inquiry Commission. The Commission conducted sittings on September 1 st and 2nd and
opportunity was given to Sunitha and Ajith to adduce evidence and rebut evidence, including
right to cross examination. The sole eye witness of the incident was Sarmila Bai, a 75 year old
sweeper of the college. She deposed before the Inquiry Commission that on 04.08.2015, she saw
Ajith and Sunitha sitting in the same bench and Ajiths hand was on the shoulder of Sunitha.
During cross examination, Ajith showed Sarmila Bai a 500 rupee note which she identified as a
100 rupee note. The Commission submitted its report on 18.09.2015 finding Sunitha and Ajith
guilty of the alleged misconduct. The finding was based on the oral evidence given by Sarmila
Bai. On 29.09.2015, Sunitha and Ajith were dismissed from the College through the order issued
by the Principal. On 26.10.2015, Sunitha and Ajith filed a writ petition before the High Court of
Jeevasthan challenging the order of the Principal.

9

ISSUES RAISED
Issue 1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?
Issue 2. WHETHER THE GOVERNING BODY HAD THE POWER TO FORMULATE

AND PUBLISH THE CODE OF CONDUCT FOR STUDENTS OR NOT?
Issue 3. WHETHER RULE 10 OF THE GOVERNING BODY IS IN VIOLATION OF

ARTICLE 14, 19(1) (a) (b) AND 21 OF THE CONSTITUTION OR NOT?

10

Issue 4. WHETHER THE PUNISHMENT IMPOSED ON THE PETITIONERS IS
DIPROPORTIONATE TO THE GRAVITY OF THE ALLEGED
MISCONDUCT OR NOT?
Issue 5. WHETHER THERE IS AN ERROR OF LAW APPARENT ON THE FACE OF

RECORD OR NOT?
SUMMARY OF PLEADINGS
1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?

Firstly, that St. Martin College is state under Article 12 of the Constitution of India and thus a
writ petition is maintainable against it for violation of Part III of the Constitution.
Secondly, that the minority status of the Respondent does not absolve it of its liability.
2.WHETHER
THE
AND PUBLISH THE
GOVERNING
BODY
HAD
THE
POWER
TO
FORMULATE
CODE OF CONDUCT FOR STUDENTS OR NOT?

11

Firstly, that the Governing Body did not have the power to formulate any code of conduct as it is
merely an advisory body and acted outside of its mandate vitiating Rule 10 of the Code.
Secondly, that the Governing Body, being a statutory body, cannot exceed its limits in
discharging its duties, and therefore, cannot make the Code of Conduct.
3.WHETHER
RULE
10
OF
THE
GOVERNING
BODY
IS
IN
VIOLATION
OF
ARTICLE 14, 19(1) (A), (B) AND 21 OR NOT?

Firstly, that Rule 10 is arbitrary, and fails the test of reasonableness and thus is violative of
Article 14.
Secondly, that Rule 10 is violative of Article 19(1) (a) and (b) as it places unreasonable
restrictions on the fundamental rights.
Thirdly, that Rule 10 is violative of article 21 insomuch as it violates due process.
4.WHETHER
THE
PUNISHMENT
IMPOSED
ON
THE
PETITIONERS
IS
DIPROPORTIONATE TO THE GRAVITY OF THE MISCONDUCT OR NOT?
That the punishment imposed on the Petitioners far exceeds the crime and is violative of the
doctrine of Proportionality.
5.WHETHER THERE IS AN ERROR OF LAW APPARENT ON THE FACE OF
RECORD OR NOT?
Firstly, the Inquiry Commission did not appreciate the evidence and cross-examination
conducted by the Petitioners.
Secondly, the expulsion order after the Inquiry Commissions proceeding did not state any
reasons for rejecting evidence and thus is erroneous on the face of the record.

12

PLEADINGS
1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?
It is most respectfully submitted by the Petitioner before this Honble Court that the instant writ
petition is maintainable in this Honble Court. It is submitted that St. Martin College (hereinafter

13

Respondent) is state under Article 121 for the purpose of Part III of the Constitution, as the
duties fulfilled by it, i.e. education, is merely an extension of the states functions.
1.1 THAT
THE
PURPOSE OF
RESPONDENT
IS
STATE
UNDER THE MEANING OF
ARTICLE 12
FOR THE
PART III OF THE CONSTITUTION
It is reverentially submitted that the Respondent is state 2 under the Constitution, and is under a
constitutional mandate to ensure that the fundamental rights 3 of people are protected and the
directive principles of state policy are followed. 4 Its machinery should function in a way to attain
the ideals of the Constitution as enshrined in its Preamble. For a welfare state like that of India 5,
providing education facilities is an imperative duty of the state. Since it is impractical and almost
1 Constitution of India, 1950.
2 Article 12 of the Constitution; Airport Authority Case (1979) 3 SCC 489; Ajay Hasiya v Khalid
Mujib (1981) 2 SCR 479.
3
Part III of the Constitution.

14

impossible for the government to provide quality higher education 6 to all citizens within its
territory due to reasons like a colossal population, the government, thus allowing private colleges
to be set up, has delegated this duty.
In Ujjam Bai v State of U.P.,7 the SC observed that Art. 12 winds up the list of authorities falling
within the definition by referring to other authorities within the territory of India, which
cannot, obviously, be read as ejusdem generis with either the Government or the Legislature or
Local authorities. The word State is of wide amplitude and capable of comprehending every
authority created under the statute and functioning within the territory of India. There is no
characterization of the nature of authority set up under a statute for the purpose of administering
laws enacted by the Parliament or by the State including those vested with the duty to make
decisions in order to implement those laws.
4
Part IV of the Constitution.
5
H.M.Seervi, Constitutional Law of India, vol 3 (4th edn); Vincent v Union of India, 1987 2 S.C.R.
468.
6
Article 41, Constitution of India.

15

A body is performing a public function when it seeks to achieve some collective benefit for the
public or a section of the public and is accepted by the public or that section of the public as
having authority to do so. Bodies, therefore, exercise public functions when they intervene or
participate in social or economic affairs in the public interest. This may happen in a wide variety
of ways. For instance, a body is performing a public function when it provides public goods or
other collective services, such as health care, education and personal social services, from funds
raised by taxation.8
In Unni Krishan v State of Andhra Pradesh,9 the Honble Supreme Court held that a private body
performing public duty is amenable to writ jurisdiction. The Supreme Court held that under
Article 226, writ can be issued to any person or authority for enforcement any of the fundamental
rights or for any other purpose. The court further observed that:
7
AIR 1962 SC 1621.
8
de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5th Edn.) Chapter 3, para
0.24.
(1993) 1 SCC 645.

16

"If the emphasis is on the nature of duty, on the same principle it has to be held
that these educational institutions discharge public duties, irrespective of the
educational institutions receiving aid it should be held that it is a public duty. The
absence of aid does not detract from the nature of duty. "
"University" means a University established or incorporated by or under a Central Act, a
Provincial Act or a State Act and includes any such institution as may, in consultation with the
University concerned, be recognized by the University Grants Commission (UGC) in accordance
with the regulations made in this regard under the UGC Act, 1956.10
The Respondent is affiliated to the University of Jeevasthan, and under a constitutional and
statutory obligation to function as per the Jeevasthan University Act, 1940 and the respective
State Universities Act and statutes framed thereunder.
As observed by the Constitution bench of the Apex Court in the case of Islamic Academy of
Education v. State of Karnataka,11
Imparting of education is a State function. The State, however, having regard to
its financial and other constraints, is not always in a position to perform its
10
Section 2 (f), University Grants Commission Act, 1956.
11
AIR 2003 SC 3724.

17

duties. The function of imparting education has been, to a large extent, taken over
by the citizens themselves.
As held by the Apex Court in the case of Zee Telefilms Ltd. v Union of India 12 it is inferred that in
case a private body is allowed to discharge public duty or positive obligation of public nature, the
said body can be treated as a "State" within the meaning of Article 12. It was further observed
that the concept of "State" under Article 12 is in relation to the fundamental rights guaranteed by
Part III of the Constitution and the directive principles of State Policy as contained in Part IV
thereof, and the contents of these two parts manifest that Article 12 is confined to its independent
or sovereign meaning, so as to include within its fold whatever comes within the purview thereof
so as to instill public confidence in it.
As suggested by Black J., in Marsh v Alabama,13 the more an owner, for his advantage, opens up
his property for use by the public in general, the more do his rights become circumscribed by the
statutory and constitutional rights of those who use it.
In spite of the institution being a private minority institution, since it is primarily for use by the
general public for the purpose of education, it is subject to constitutional restrictions.
12
AIR 2005 SC 2677.
13
(3) 326 U.S. 501.

18

Mathew J. in the case of Sukhdev Singh v Bhagatram14 laid down the test that if the functions of
a Corporation are of public importance and closely related to governmental functions, it should
be treated as an agency or instrumentality of the government and hence a State within the ambit
of Art. 12. Activities, which are too fundamental to the society are, by definition, too important
not to be considered government functions. Even a private body or a corporation or unaided
private school may be included within the definition of State if it acts as an agency of the
Government.
The Apex Court, in its decision in the case of Poonam v Sumit Tanwar,15 held that writ lies
against a person or a body, if it is a statutory body or performs a public function or discharges a
public or statutory duty.
In the instant case, the main purpose of the Institution in question is to provide facilities for
higher education to its students, which is an inalienable duty of the state. Therefore, it is the
humble submission of the Petitioner that since the Respondent College discharges a public duty
of education, it should be regarded as an instrumentality of the State and therefore, the writ lies
against such an institution. It should function in a way to attain the ideals of the Constitution as
enshrined in it. A private educational institution imparting education to the students is
14
(1975) 1 SCC 421.
15
AIR 2010 SC 1384.

19

discharging the functions of the State. It is a public duty16
In the case of KumKum v Principal, Jesus & Mary College,17 the Delhi High Court has held that
a public office is one where the powers and duties pertaining to the office relate to a large section
of the public. It was therefore held that Principal of a private college is amenable to writ
jurisdiction.
The Honble Supreme Court observed in the case of P.A. Inamdar v State of Maharashtra18 that:
Education, accepted as a useful activity whether for charity or for private, is an
occupation. Nevertheless, it does not cease to be a service to society.
16
Parimal Chakraborty v State Of Meghalaya & Ors., 2000 (3) GUT 441.
17
AIR 1976 Del 35.
18
2005(6) SCC 537.

20

The Honble Apex Court in the case of Rajasthan SEB v Mohan Lal19 held that:
The State, as defined in Article 12, is thus comprehended to include bodies
created for the purpose of promoting the educational and economic interests of
the people...20
In K. Krishnamacharyulu and Ors. v Sri Venkateshwara Hindu College of Engineering and
Anr.,21 the Apex Court has held that writ petition against an unaided private institution is
maintainable. It was further held that if element of public interest is involved, then the writ
petition against private educational institution can be heard.
Since this writ petition is concerned with not only the dismissal of the petitioners, but also with
19
AIR 1967 SC 1857; Pradeep Kumar Biswas v Indian Institute of Chemical Biology, (2002) 5 SCC
111.
20
ibid.
21
(1997) 3 SCC 571.

21

the constitutionality of Rule 10 of the Code of Conduct, it is vehemently submitted by the
Petitioner that the instant case is, indeed, concerned with an element of public interest. Therefore
the instant writ petition is maintainable.
1.2 THAT
THE
MINORITY STATUS
OF THE
RESPONDENT
DOESNT AFFECT ITS STATUS AS
STATE UNDER ARTICLE 12

It is submitted that the minority status of the Respondent institution 22 doesnt affect the fact that
it shall still be considered State under Article 12 of the Constitution, as there is no
constitutional provision that makes any exclusion. The only constitutional protection provided to
minority educational institutions is their right not to be discriminated against by the state while
providing aid.23 However, it does not mean that they are not bound by the constitution, or that
they are free to adopt policies contravening the fundamentals of the Constitution. Minority
institutions cannot violate the provisions of Articles 14 and 16 of the Constitution of India, and
most certainly cannot be permitted to act arbitrarily.
It was observed by the Supreme Court24 that:
The concept of rule of law would lose its validity if the instrumentalities of the
22
Moot Proposition, 2.
23
Article 30(2), Constitution of India.

22

state are not charged with the duty of discharging their functions in a fair and just
manner. The requirement of acting judicially in essence is nothing but a
requirement to act justly and fairly and not arbitrarily or capriciously.
The Respondent, being a minority educational institution, 25 does have a fundamental right to
manage and administer its affairs,26 which extends to managing their internal discipline. But this
right, like any other right provided by the constitution, comes with the restriction in as much that
they do not have a right to mal-administer. The Respondent is an educational institution and
therefore, an instrumentality27 of the state. This right to manage and administer should not
transgress the constitutional restrictions.
2. WHETHER THE GOVERNING BODY HAS THE POWER TO FORMULATE THE
24
A. A. Kraipak v Union of India, (7) 1970 SC 150.
25
(n 22)
26
Article 30 (1), Constitution of India.

23

CODE OF CONDUCT?
It is most respectfully submitted by the Petitioner before this Honble Court that the Governing
Body of the Respondent institution has no authority to formulate the Code of Conduct for its
students.
2.1 THAT THE GOVERNING BODY IS AN ADVISORY BODY
It is noteworthy that Section 40 of the Jeevasthan University Act, 1952 provides that every
private college that has been affiliated to the University shall constitute a Governing Body, which
shall advise the college on all administrative matters.28
It can be inferred from above sentence that the Governing Body is merely an advisory body and
therefore is devoid of power to formulate or publish the Code of Conduct for students. Since the
Governing Body is only the advisory body, there has to be some other authority, which
specifically formulates rules and regulations.
27
(n 2)
28
(n 22).

24

Moreover, it is a well-settled principle of interpretation that in course of interpretation of a legal
provision, its language should be read as it is and addition/subtraction of words should be
avoided, as to do so would amount to legislation and not interpretation Casus omissus.29
The language of Section 40 of the Jeevasthan University Act, 1952 only provides the Governing
Body with advisory powers. Therefore, it is reverentially submitted that the Governing Body
doesnt have the power to formulate or publish the Code of Conduct for its Students.
It was observed in the decision of the 11 Judge Constitution Bench of the Honble Apex Court 30
that any regulation framed in the national interest must necessarily apply to all educational
institutions, whether run by majority or minority, and the right under Article 30(1) cannot be
such as to override national interest. Whether a minority or a non-minority, no community can
claim its interest to be above national interest. The right to administer cannot obviously include
the right to mal-administer.31
29
Gwalior Rayon Silk Mfg. Co. Ltd. v Custodian of Vested Forests, AIR 1990 SC 1747; Nagar Palika
Nigam v Krishi Upaj Mandi Samiti, AIR 2009 SC 187.
30
TMA Pai Foundation v State of Karnataka, (2002) 8 SCC 481.
31

25

The right is subject to reasonable restrictions in the interest of efficiency of instruction,
discipline, health, sanitation, morality, public order and the like. 32 The power to regulate,
undisputedly, is not unlimited. It has more restriction than freedom particularly, in relation to the
management of minority educational institutions.33
Although a minority institution has the right under Article 30 to manage and administer its
internal affairs, it still doesnt entitle it to act against the fundamentals of the constitution.
Also, allowing an advisory body to perform functions beyond its actual powers will set a
dangerous precedent, as there will then remain no check on the powers of similar statutory
bodies.
2.2 THAT A STATUTORY BODY CANNOT EXCEED ITS LIMITS IN DISCHARGE OF ITS DUTIES
A regulation is a rule or order prescribed by a superior for the management of some business and
implies a rule for general course of action. Rules and regulations are all comprised in delegated
In re: Kerala Education Bill, AIR 1958 SC 956.
32
Rev. Sidhajbhai, AIR 1963 SC 540; State of Kerala v Very Rev. Mother Provincial, 1971 SCR (1)
734.
33
Sindhi Education Society v Chief Secretary, Government of NCT of Delhi, (2010) 8 SCC 49.

26

legislations. The power to make subordinate legislation is derived from the enabling Act and it is
fundamental that the delegate on whom such a power is conferred has to act within the limits of
authority conferred by the Act.34
As the general rule goes the legislature is the master of policy and if the delegate is free to switch
policy it may be usurpation of legislative power itself.35
The Jeevasthan University Act, 1952, which is the enabling Act of the Governing Body, only
authorizes the same to give advice on matters relating to the administration of the college. It
doesnt authorize the Governing Body to either formulate or publish any rules or regulations.
Therefore, formulating or publishing the Code of Conduct is beyond the powers of the
Governing Body.
3.WHETHER RULE 10 IS IN VIOLATION OF ARTICLE 14, 21 AND 19(1) (a) AND (b)
OF THE CONSTITUTION OR NOT?
34
St. John.s Teachers Training Institute v Regional Director, NCTE, (2003) 3 SCC 321.
35
Avinder Singh v Punjab, AIR 1979 SC 321.

27

It is humbly submitted that Rule 10 of the Code of Conduct 36 formulated and published by the
Governing Body of the College is in violation of article 14, 21, and 19(1) (a) and (b) of the
Constitution of India, 1950. The same is contended by the Petitioners on the grounds that follow.
3.1 THAT RULE 10 RESTRICTS THE RIGHT TO FREEDOM UNDER ARTICLE 19
In the case of Romesh Thappar v State of Madras,37 Patanjali Sastri, C.J. observed as follows:
Freedom of speech lay at the foundation of all democratic organizations, for without free
political discussion no public education, so essential for the proper functioning of the process of
popular government, is possible.
36
37
AIR 1950 SC 124.

28

In Maneka Gandhi v Union of India,38 the Supreme Court held that a right not expressly
mentioned in any clause of Article 19(1)39 could be covered by necessary implication. Thus, even
if a right is not specifically mentioned in Article 19(1), 40 it could still be a fundamental right
covered by any of the articles, if it is an integral part of a named fundamental right.
In the instant case, the University curbed the right to freedom and expression in so much as two
sexes cant sit together thus effectively hampering any communication between them. From the
aforementioned two judgments, it can be reasonably inferred that the Petitioners have a
fundamental right to sit together, for it is imperative for communication and expression of
thoughts, private and academic.
38
(1978) 1 SCC 248.

39
Consitution of India, 1950.

40
Ibid.

29

According to the Constitution of India, 1950 a restriction of the Right to Freedom may be
imposed under Article 19(2) which provides for reasonable restrictions. Article 19(2) states:
Nothing in sub clause (a) of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub
clause in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or morality or
in relation to contempt of court, defamation or incitement to an offence
It is respectfully submitted that a girl and a boy sitting together on the same bench in an
educational institution does not challenge or threaten sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality or
in relation to contempt of court, defamation or incitement to an offence.
Thus Rule 1041 does not fall under the reasonable restrictions that can be put on Article 19 and it
is most humbly contended that the restriction put by Rule 10 is violative of the fundamental right
to freedom.
2.2 THAT RULE 10 IS ARBITRARY AND FAILS TEST OF REASONABLENESS

It is vehemently argued that Rule 10 fails the test of reasonableness in Chintaman Rao v The
State of Madhya Pradesh42 used by the Supreme Court.
41

30

The same test was recently used in Shreya Singhal v Union of India43 and Section 66A of IT Act,
2002.
A seven-Judge Bench decision in Pathumma and Ors. v State of Kerala and Ors.,44 held:
The following tests have been laid down to decide in what particular circumstances a
restriction can be regarded as reasonable:
In judging the reasonableness of the restriction the court has to bear in mind the
Directive Principles of State Policy.
42
AIR 1951 SC 118.

43
W.P. (Crl.) No. 167 of 2012.

44
[1978] 2 SCR 537.

31

b
The restrictions must not be arbitrary or of an excessive nature so as to go beyond the

requirements of the interests of the general public. The legislature must take intelligent
care and deliberation in choosing the course which is dictated by reason and good
conscience so as to strike a just balance between the freedom in the article and the
social control permitted by the restrictions under the article.
The Court is to examine the nature and extent, the purport and content of the right, the
nature of the evil sought to be remedied by the statute, the ratio of harm caused to the
citizen and the benefit conferred on the person or the community for whose benefit the
legislation is passed.
There must be a direct and proximate nexus or a reasonable connection between the
restriction imposed and the object which is sought to be achieved.
Thus, any code of conduct made by an authority which violates fundamental rights, must pass
the test of reasonableness and the courts must consider the evil sought be cured by it and the
object which is sought to be achieved.
It is urged that Rule 10 made innocently sitting together on the same bench an evil punishable
by the authorities in derogation of the Directive Principles of State Policy and Fundamental
Duties to raise standard of living and promoting a scientific temper and fails the test of
reasonableness and violates article 14 of the Constitution of India, 1950.
2.3 THAT RULE 10 IS VIOLATIVE OF ARTICLE 21

32

In Francis Coralie Mullin v The Administrator, Union Territory of Delhi and Ors., 45 the Supreme
Court held as follows:
Article 21 requires that no one shall be deprived of his life or personal liberty
except by procedure established by law and this procedure must be reasonable,
fair and just and not arbitrary, whimsical or fanciful.
In another case of Olga Tellis and others v Bombay Municipal Corporation and Ors.,46 it was
further observed:
Just as a mala fide act has no existence in the eye of law, even so,
unreasonableness
vitiates law and procedure alike.
In M. Vijaya v The Chairman, Singareni Collieries and Ors.,47 The Supreme Court held:
45
AIR 1981 SC 746.

46
AIR 1986 SC 180.

47

33

It is well settled that right to life guaranteed under Article 21 is not
mere animal existence. It is a right to enjoy all faculties of life. As a necessary
corollary, right to life includes right to healthy life."
Thus, the right to a healthy life, physically, socially and emotionally is covered under the Right
to Life and Personal Liberty.48
It is urged in the light of the abovementioned cases, that Rule 10 is arbitrary, unreasonable
excessive, and violative of Article 21 of the Constitution of India.
4.
WHETHER
THE
PUNISHMENT IMPOSED
DIPROPORTIONATE
TO
THE
GRAVITY
ON
OF
THE
PETITIONERS
THE
IS
ALLEGED
MISCONDUCT OR NOT?
The counsel for the Petitioners humbly submit before this Honble Court that the order for
expulsion of the petitioners from college is mala fide and bad in law since the decision making
process suffered from several irreversible irregularities. The expulsion resulted in gross violation
of the fundamental rights of the petitioners. The petitioners were reprieved of reasonable
opportunity which resulted in the violation of the principles of natural justice.
4.1 THAT THE PUNISHMENT IS IN VIOLATION OF DOCTRINE OF PROPORTIONALITY
It is humbly submitted that the college authorities bypassed the doctrine of proportionality while
deciding the punishment. The penalty imposed must be commensurate with the gravity of the
2001 (5) ALD 522.

48
Article 21, Constitution of India, 1950.

34

misconduct and that any penalty disproportionate to the gravity of the misconduct would be
violative of Article 14 of the Constitution of India, 1950. 49 The doctrine of proportionality is a
principle that applies to a decision which is so outrageous in its defiance of logic or of accepted
moral standards that no sensible person who applied his mind to the question to be decided could
have arrived at it.50
The principle of proportionality is inherent in cases of punishments. The Supreme Court of India
consciously considered the application of the concept of proportionality for the first time in the
case of Union of India v G. Ganayutham.51 Subsequently came the historic decision of the
Supreme Court in Omkumar v Union of India52. It was in this case that the Supreme Court
accepted the application of proportionality doctrine in India. The application of the doctrine of
49
Bhagat Ram v State of Himachal Pradesh MANU/SC/0322/1983.

50
Associated Picture House v Wednesbury Corporation (1947) 2 All ER 680 (CA).

51
(1997) 7 SCC 463.

35

proportionality should not be bypassed in the instant case since it is already a widely accepted
doctrine.
The Constitution Bench in E.P. Royappa v State of Tamil Nadu53 held:
Where punishments in disciplinary cases are challenged, question will be
whether the administrative order is "rational" or "reasonable" and the test then is
the Wednesbury Test.
The action of the college is neither rational and fails to pass the Wednesbury Test laid down in
the case of Associated Provincial Picture Houses Ltd. v Wednesbury Corporation54 where the
Court held :
52
(2000) 20 SCD 380.

53
(1974) 4 SCC 3: 1974 SCC (L&S) 165.

54
[1948] 1 KB 223.

36

To have the right to intervene, the court would have to conclude that:
1. in making the decision, the defendant took into account factors that ought not to
have been taken into account, or
2. the defendant failed to take into account factors that ought to have been taken into
account, or
3. the decision was so unreasonable that no reasonable authority would ever consider
imposing it.
The decision of the college authorities to expel the petitioner fails gravely to pass the principles
laid down in Wednesbury Test.
In B.C. Chaturvedi v Union of India and Ors55, the Supreme Court held:
"A review of the above legal position would establish that the disciplinary
authority, and on appeal the appellate authority, being fact-finding authorities have
exclusive power to consider the evidence with a view to maintain discipline. They
are invested with the discretion to impose appropriate punishment keeping in view
the magnitude or gravity of the misconduct. The High Court/Tribunal, while
exercising the power of judicial review, cannot normally substitute its own
conclusion on penalty and impose some other penalty. If the punishment imposed
by the disciplinary authority or the appellate authority shocks the conscience of
the High Court/Tribunal, it would appropriately mould the relief, either directing
the disciplinary/appellate authority to reconsider the penalty imposed, or to
55
(1995) 6 SCC 749.

37

shorten the litigation, it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support thereof."
The punishment imposed on the petitioner, without any doubt has the intensity to shock the
conscience of the High Court. Therefore, the Honble Court has the power to rectify the grave
punishment imposed on the petitioners.
The petitioner also contends that the petitioners deserved lesser punishment even if the alleged
misconduct is proven against them as sitting together in the same bench should in no way be
construed as a severe violation of the code of conduct and more over should not lead to the
expulsion from the institution. Expulsion of students from an educational institution can have far
reaching consequences and detrimental consequences. The authorities could have taken a
different resort like issuance of warnings; suspension for a short period or even for longer period
but expulsion is not commensurate with the gravity of the alleged misconduct.
4.2 VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE
The order passed by the Principal is arbitrary and capricious, against all rules of natural justice as
the college failed to fulfill the basic essentials of natural justice. The petitioners were not served
with the notice. The principle of audi alteram partem is the basic concept of principle of natural
justice. This principle is sine qua non of every civilized society. This rule covers various stages
through which administrative adjudication passes starting from notice to final determination.
Right to fair hearing thus includes also includes right to notice. The principles of natural justice
have been violated since no notice was served by the college to the petitioners. No such steps of
issuance of a notice to show cause to the petitioner had been taken by the respondents before
inflicting such a grave punishment on him. Furthermore, a perusal of the expulsion notice shows
that the respondents have not given any plausible reasons for exercising such drastic powers of

38

inflicting grave punishment on the petitioners. 56 Hence, the petitioners submit that the principles
of natural justice were violated in the instant.
The Honorable Supreme Court after discussing the matter of failure of natural justice in the case
of State Bank Of Patiala v S.K.Sharma57 distinguished between two situations
1. Where there is a total violation of natural justice, i.e.; where no opportunity of
hearing has been given; where there has been no notice/ no hearing at all; and
2. Where a facet of natural justice has been violated. i.e. where there has not been
adequate opportunity of hearing, or where a fair hearing is lacking.
In Ridge v. Baldwin, the Court that breach of the principles of natural justice is
in itself sufficient to grant relief and that no further de facto prejudice need be
shown.
In the instant case, one of the facets of natural justice has been violated since the college did not
serve the notice to the petitioners leading to the violations of natural justice.
In the case of Kuldeep Kumar Pathak v State of U.P. and Ors.58, the intermediate result of the
student was cancelled by the board after 10 years without serving any notice to the boy. The
court held that it is the violation of natural justice.
56
Md. Mobashashir Sarwar Vs. Jamia Millia Islamia and Ors. MANU/DE/0794/2012.
57
AIR 1996 SC 1669.

39

However, failure to follow the well trodden path of issuing of notice to show cause to the
petitioner. Due process of law by issuing a notice to show cause to the petitioner and setting out
all the It is humbly submitted by the petitioners that the failure in serving the notice being one of
the facets of violation of fair trial.
5. WHETHER THERE IS AN ERROR OF LAW APPARENT ON THE FACE OF
RECORD?
5.1 THAT THE INQUIRY COMMISSION DID NOT CONSIDER CROSS-EXAMINATION

It is submitted that during her cross-examination, Sarmila Bai misidentified a 500 rupees note for
a 100 rupees note.59 This points either to her senility or impaired vision, both and either of which
disqualify her as a reliable witness.
It is most respectfully submitted that in any penal proceeding, judicial, administrative or
disciplinary, basic principles of natural justice must be observed which include a fair trial and
audi alteram partem which means not only being given an opportunity to be heard, but those
arguments and evidence properly taken into consideration.
58
MANU/SC/0004/2016
59

40

The only evidence in this matter is the testimony of an unreliable witness and not a shred of any
other evidence which is violative of the principles of natural justice.
In Maneka Gandhi v Union of India,60 SC held:
Art. 21 would no longer mean that law could prescribe some semblance of
procedure however arbitrary or fanciful, to deprive a person of his personal
liberty. It now means that the procedure must satisfy certain requisites in the
sense of being fair and reasonable. The procedure cannot be arbitrary, unfair or
unreasonable.
Thus, it is most respectfully submitted that the hearing afforded to the Petitioners was violative
of principles of natural justice as the commission did not consider the cross-examination.
5.2 THAT THE DISMISSAL ORDER DATED 29.09.15 WAS A NON-SPEAKING ORDER
In Tarachand v Municipal Corporation,61 an assistant teacher was dismissed on the ground of
moral turpitude. The Inquiry fully established the charge. The Asst. Education Commissioner
confirmed the report w/o giving reasons. The SC held that where the disciplinary authority
disagrees with the report of the inquiry officer, it must state the reasons.
60
(n 38)
61
AIR 1977 AIR 567.

41

In the instant case, the Inquiry Commission62 did not give any reason as to why it expelled the
students despite their only being one piece of evidence viz. an unreliable witness.
It is vehemently argued that such a report is bad in law.
Thus, the Respondents urge that the report of the Inquiry Commission be quashed due to error
apparent on the face of the record.
62

42

PRAYER
Wherefore, in the light of facts established, issues raised, pleadings advanced, and authorities
cited, it is most humbly submitted before this Honble Court that it may be pleased to:
1. HOLD that the writ petition is maintainable.
2. SET ASIDE the dismissal order against the Petitioners and reinstate them in the college in
their respective courses with no loss of attendance incurred during absence.
3. DECLARE that the Governing Body acting outside of its assigned powers under the
Jeevasthan University Act, 1952.
And pass any order that it deems fit in the interest of of justice.
All of which is respectfully submitted.

43

Date:S/d 1
Place:
2
(Counsels For The Petitioner)

44

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IN THE HONBLE HIGH COURT OF JEEVASTHAN

SUNITHA AND AJITH

ST. MARTIN COLLEGE

Memorial on Behalf of the Petitioners

27TH ALL INDIA MOOT COURT COMPETITION 2016

27TH ALL INDIA MOOT COURT COMPETITION 2016

MEMORANDUM DRAWN AND FILED BY THE PETITIONER

27TH ALL INDIA MOOT COURT COMPETITION 2016

All India Reporter

Supreme Court Cases

Supreme Court Cases

Supreme Court Report

MEMORANDUM DRAWN AND FILED BY THE PETITIONER

27TH ALL INDIA MOOT COURT COMPETITION 2016

A. A. Kraipak v Union of India

(7) 1970 SC 150

Airport Authority Case

(1979) 3 SCC 489

Ajay Hasiya v Khalid

(1981) 2 SCR 479

Bhagat Ram v State of Himachal Pradesh

AIR 1983 SC 454

Chintaman Rao v The State of Madhya Pradesh

AIR 1951 SC 118

E.P. Royappa v State of Tamil Nadu

Francis Coralie Mullin v The Administrator, Union

(1978) 2 SCR 537

Territory of Delhi and Ors.

AIR 1990 SC 1747

AIR 1958 SC 956

Islamic Academy of Education v State of Karnataka

AIR 2003 SC 3724

K. Krishnamacharyulu and Ors. v Sri Venkateshwara

(1997) 3 SCC 571

Hindu College of Engineering and Anr.

AIR 1976 Del 35

M. Vijaya v The Chairman, Singareni Collieries and

2001 (5) ALD 522

MEMORANDUM DRAWN AND FILED BY THE PETITIONER

27TH ALL INDIA MOOT COURT COMPETITION 2016

Maneka Gandhi v Union of India

(3) 326 U.S. 501

Md. Mobashashir Sarwar v Jamia Millia Islamia

Civil Appeal No. 11 of 2016

Nagar Palika Nigam v Krishi Upaj Mandi Samiti &

AIR 1986 SC 180

Corporation and Ors.

P.A. Inamdar v State of Maharashtra

2005(6) SCC 537

Pathumma and Ors. v State of Kerala and Ors.

AIR 1981 SC 746

Poonam v Sumit Tanwar

AIR 2010 SC 1384

Pradeep Kumar Biswas v Indian Institute of Chemical

AIR 1967 SC 1857

AIR 1963 SC 540

Romesh Thappar v State of Madras

AIR 1950 SC 124

Shreya Singhal v Union of India

W.P. (Crl.) No. 167 of 2012

Sindhi Education Society v Chief Secretary,

Government of NCT of Delhi