P L D 1975 Lahore 1385 (PLP)

The petitioner appeared in the M. Sc. Chemistry I Annual Examination of 1973 held in May‑July 1974, under Roll No. 3187. While he was taking the examination in the Organic Chemistry, Special Paper at the Government College, Lahore on 3‑9‑1973, the respondent, the Controller of the Examina tions, visited the Centre and took into possession some 54 handwritten leaves, seven cyclostyled leaves and two typed leaves, according to the petitioner from a folding chair lying far away from his seat. The respondent issued a memo. to the petitioner on 28‑7‑1974 to the following effect :‑ "You are charged as under (i) You appeared in the M. Sc. Chemistry I Annual Examination of 1973 held in May‑July 1974 under Roll No. 3187. On 3‑7‑74 while you were taking examination in Inorganic Chemistry Special Paper, at Government College, Lahore Centre No. 6, the Controller of Examina tions visited the Centre and recovered 54 handwritten leaves, seven cyclostyled leaves and two typed leaves containing notes relevant to the question paper, from which you might have copied."

2. The petitioner submitted a reply and stated that he had no concern whatsoever with the handwritten or cyclostyled or typed leaves, nor, the same had been recovered from his possession. He was not even aware of the existence of the alleged material which was found in a folded chair far away from his reach in any manner. It was added that since he had no concern or connection with the material, there was no question of his copying from that. Lastly, it was stated that paras. 12 and 13 of the Regulation with which the petitioner had been charged, do not have any application to the facts of the case. On 11‑1‑1975, the petitioner was informed that he could appear before the Disciplinary Committee if he liked on 15th of January 1975. The petitioner appeared before the said Committee and stated that be had no concern whatsoever with the material. However, on 6-3‑1975 he was informed that "you have been disqualified for using unfair means in the above mentioned examination for a period of one year under regulation 13 at page 186 of the University Calendar, Volume I (196364). You will not be able to re-appear in any University Examination earlier than I Annual Examination of 1974". The petitioner challenged this order by means of Writ Petition No. 619/74 in this Court. But in order to file an appeal before the Appellate Committee, chaired by the Vice‑Chancellor, he with drew the same on 31st of March 1975. He, accordingly, filed an appeal before the Vice‑Chanceller as the Chairman of the Appellate Committee' on 2‑4‑1975. On 3‑6‑75, on behalf of the Controller of the Examination, the petitioner received a letter to the following effect :‑ "Please refer to your appeal addressed to the Vice‑Chancellor against the orders of your disqualification for a period of one year under Regulation 13 at page 196 of the University Calendar, Volume I (1963‑64) in the M. Sc. Chemistry I Annual Examination of 1973 in which you appeared under Roll No. 3187. This is to inform you that your case was referred to the Disciplinary Committee for re‑consideration. The Committee after hearing you in person and considering all the facts on record found no new fact and, therefore, rejected the appeal."

3. The petitioner has challenged the aforesaid actions and orders of, the respondent authority by means of this petition under Article 199 of the Constitution.

4. Learned counsel appearing for the petitioner has submitted that the actions and the orders of the respondent authority are totally devoid of any lawful authority and are patently illegal. It is submitted that the charge: against the petitioner was that the Controller of Examinations visited the Centre and recovered 54 handwritten leaves, seven cyclostyled leave and two, typed leaves, containing notes relevant to the question paper, from which `'you might have copied". The learned counsel submits that neither it was the case of the authority that the aforesaid papers were recovered from the petitioner, or, those were in his possession, nor, that from those papers, the petitioner had copied out anything. The allegation that the petitioner "might have copied" is bald and wild and it can be said against anybody that he might have done anything. It is, therefore, submitted that the order dated 6‑3‑1975 of disqualifying the petitioner on the ground of "using unfair means" is totally without any basis and is arbitrary. Learned counsel, further, contended that the petitioner filed an appeal against the aforesaid order before the Chairman, Appellate Committee, the Vice‑Chancellor He was not given opportunity to support his appeal, nor, heard by the appellate authority. It appears that in routine his appeal was sent to the same authority against whose action and order the petitioner had filed the appeal as is clear from the letter dated 3‑6‑1975 which states "that your case was referred to the Disciplinary Committee for reconsidera tion. The Committee after hearing you to person and considering all the facts on record found no new fact, therefore, rejected the appeal": The learned counsel submits that the appeal could not be re‑heard by the same authority which had passed the order in the first instance and whose order had been appealed against. According to the learned counsel, this is against the elementary rules of natural justice that a person who punishes another should decide the appeal. There is no denying the necessity of leaving the educational institutions to function according to their own rules, regulations, or modes of behaviour, so as to enable them to impart education and inculcate truth and discipline in the minds of the students who come in their portals. However, it is of equal importance that the persons who come to seek knowledge and truth must also learn that everybody, including" themselves, should be dealt with fairly, reasonably, and, on basis of facts, and not arbitrarily, or, fancifully. The elementary rules of natural justice are applicable to the educational institutions as well. It is so laid down by their Lordships of the Supreme Court of Pakistan in the cases of University of Dacca through its Vile‑Chancellor and the Registrar‑University of Dacca v. Zakir Ahmad (PLD 1965 SC 90) and Abdul Sabur Khan v. Karachi University and Controller of Examinations (PLD 1966 SC 536). These cases lay down that before a person can be made to suffer, he must have an adequate opportunity to defend himself. If a student is charged that he "might have copied", how can he defend, when it is not even said that he had, in fact, copied.' The allegation is too general and imaginative. If he asserts that he had not in fact, copied as was done in this case, then, too, the respondent authority did not say that, no, you have copied. In these circumstances, it is impossible to hold that the student had used "unfair means" to incur the disqualification. It is not even the case of the respondent authority that the leaves of papers were either taken from the possession of the petitioner, or, were lying on hi seat, or, were in his handwriting, or, were being, or had been used by tae petitioner. It was specifically stated in the reply that the papers were not recovered from the petitioner, nor, those were anywhere near him. There were collected from a far off place. In spite, therefore, when the respondent authority came to render an adverse decision, then too, the respondent remained illusive about the findings on these facts. It only said that the petitioner had been disqualified for "using unfair means". It was not, again, stated, what, or how the petitioner had used unfair means"? In fact, "use of unfair means" was not even the charge. The petitioner challenged the order of his disqualification before the Appellate Committee, chaired by the Vice Chancellor. The petitioner was never called, nor heard by the Appellate Committee, nor by the Chairman. It is so stated by the learned counsel for the petitioner from the Bar. It is submitted that he was so instructed by the petitioner and would also appear clear and correct from a perusal of the letter sent to the petitioner wherein it had been stated that his case was referred to the Disciplinary Committee for reconsideration, implying thereby, that the consideration to the appeal was to be given by the Disciplinary Committee. No body has appeared to oppose the petition, or controvert the facts. These appear to be correct on the record as well. The learned counsel is right in submitting that the authority who had found the petitioner guilty could not hear the appeal against its own order. It would be ex facie. against principles of law and a force that an authority, who punishes. also decides the appeal against its own order. A person who is a party to decision, if ho associates in the hearing of the appeal, or, the decision. the appellate order is rendered invalid. It was so held by a learned Division Bench of the High Court presided over by the late Chief Justice, Mr. Justice M. R. Kayani in which the leading judgment was written by Mr. Justice Muhammad Iqbal, as his Lordship was then, and at present. Chief Justice of the High Court, in the case of Mubarak Ali v. Fiaz Ali Khan, District Manager, Provincial Transport Service, Gyallpur (P L D 1963 Lah. 8). It was held that "even if there had been no such rule, the hearing of an appeal by an authority who has himself participated in that original proceedings is contrary to the rules of natural Justice". It is an age old adage that justice should not only be done but should appear to be done. How can it so appear, when an authority decides adversely against another person and, when the latter challenges its order, the original authority sits to decide the appeal. ? In the present case, it is not possible to hold that justice appears to have been done when the allegation, to start with, is too imaginative that he "might have copied", and when the latter denied, it is not even then said, that, no, you have copied. No. doubt, it is said at both occasions that the petitioner had been "heard". It is also true that an authority, like the respondent, is not required to write out a judgment after the hearing, if it passes an adverse order. But what the authority is required injustice and fairness to do is to say, what did it "hear" and, why did it reject it. The right of "nearing" does not mean that, as said in common parlance, that hear from the one ear and let that pass from the other, as if there was nothing in between to hold or ponder about. When the law or general principles of law require that a person shall be heard before he is condemned, it postulates that what he says shall be considered, and, if not accepted, the reasons thereof shall be given. To hold otherwise would amount to saying that only formality of' "hearing" might be gone through, even without actually hearing, or,, considering what is said. In such circumstances, nobody else than the authority concerned would be in a position to know or adjudge as t whether the petitioner had been dealt with on facts and reasons and o arbitrarily or fancifully. In the case of Harring v. Templeman and others the Court of Appeal rejected the contention that an academic body is obliged to give a hearing as in a law Court, or, before legal arbitrators but it perused toe "full and careful minutes of their proceedings". Then, it observed, "The Governing body is master of its own procedure. Its members are not judges in a law Court, nor, are they legal arbitrators They are entitled to such flexibility in their procedure as they think the particular case under consideration requires. We have a full and careful minute of their pr3ceedings". No such minutes are available in this case to the Court, as the respondent had not chosen to file either a ‑written statement, or he represented. Therefore, there is no basis to hold that the `hearing' afforded to the petitioner was such that, what he said, was considered and on the basis of some facts, or, reasons rejected. Same is the state of affairs when his appeal was rejected. In fact, he had filed the appeal against the order of the Disciplinary Committee, and the latter itself set to decide and reject it. It is axiomatic that an authority can not hear and decide an appeal against its own acts or orders. From what has been stated above, the entire proceedings and orders of the respondent authority are, therefore, palpably against the elementary principles of justice and, in spite of reluctance to interfere in the affairs of educational institutions, these cannot be sustained because to do so would amount to making mockery of fairness, reasonableness and justice.

5. For the foregoing reasons, there is no escape from the conclusion that the actions and orders of the respondent authority are without lawful authority and of no legal effect. These are so declared. There :hall be, however, no order as to costs. S. A. H. Petition accepted.