1969 PLP 239 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 25th April 1968, in Petition No. 71 of 1968). Educational Institutions --‑Student debarred from appearing for examination for using unfair means‑Action taken after he had submitted his explanation to Controller of Examinations‑Natural justice principle, in circumstances, cannot be said to have not been complied with merely because explanation was not called for directly by Unfair Means Committee taking action against student. Murlidhar v. University of Karachi and others P L D 1966 S C 841 distinguished. JUDGMENT QADEERUDDIN AHMAD, J.‑The petitioner seeks leave to appeal against the order of a Division Bench of the High Court of West Pakistan dated the 25th of April, 1968 by which the learned Judges dismissed a constitutional petition bearing No. 7: of 1968 filed by the petitioner under Article 98 of the Constitution

2. According to the constitutional petition, the petition is a student of the Karachi University and is reading in the Final Year of M. Sc. (Physics). He was once declared to have failed in all the subjects, therefore, he applied that the numbers secure by him be re‑totalled, but no action was taken on it. He, there fort, complained to the Vice‑Chancellor, where after he was it formed on the 6th of November, 1965 that his result was revises and that he had earned exemption in papers 1, 2, 4 and 5, but had failed in paper 3, and the practicals. The delay in the communication of this information, according to the petitioner, resulted in the loss of an academic year to him. He appeared in the Final Examination in 1967, but before the result was out, he received a memorandum from the controller of examinations dated the 22nd of August ‑ 1967 directing him to appear before him. The petitioner complied with the direction, and was allegedly. informed that he had indulged in malpractices, and should disclose the truth, otherewise he would be handed over to the police. The petitioner is said to have asked for particu lars of the malpractices but was ordered to give a declaration that he had done so, otherwise his result would be withheld; therefore, he gave a declaration that he was student of Rohri, that he had completed his answer‑books in due time in the examination hall, but happened to use two different pens, though the same ink, and that the allegation of malpractice was base‑less. The result was, however, not declared; therefore, he wrote to the Vice‑Chancellor, and to the Commissioner. Thereafter he sent a registered notice to the Vice‑Chanceller, who replied infor ming him that the result was withheld on account of a report which was received from an examiner against the petitioner about the use of unfair means. On the 20th of December 1967, the result of the petitioner was cancelled for using unfair means, and he was debarred from appearing in his M. Sc. Final Examination for three Academic years ending with the academic year of 1969‑

70. The Division Bench of the High Court before which the constitutional petition came up for hearing, called for the comments of respondent No. 2 who submitted para‑wise comments on the constitutional petition, and reproduced the report of the examiner, which is as follows "The answer script bearing seat No. 210, a new question No. 3 was added after erasing the pencil marks which was made by me during assessement that the pages were blank and the question added were given 16 marks, and one question (Q. No. 4) marked as zero by me was cancelled and necessary changes were made on the cover of the script. Moreover, the red pencil used is different from that of mine, also the question added is written in different ink used in rest of the script. This indicates that the question had been added after the script has been assessed and the answer book had been tampered." In paragraph 13 of the report, he has stated as follows :‑‑ "As stated earlier, the petitioner was informed of the allega tion against him. He submitted his explanation thereof and he was also required to explain his conduct vis‑a‑vis the charges verbally to the Controller of Examination. After considering all the evidence on record, the authorities came to the conclu sion that the petitioner adopted unfair means as far as his examination was concern. The punishment having been awarded after giving full opportunity to the petitioner to explain and defend himself, the petitioner is not entitled to challenge the decision of the University Authorities."

3. Counsel for the petitioner has argued against the above background that the petitioner 'was not given a reasonable opportunity of explaining his conduct, and that such an oppor tunity should have been given to him by the Unfair Means Committee which awarded the punishment. In support of this contention, he relied on the following observation which appears in Murlidhar v. University of Karachi and others (1) which states as follows :‑ "As already stated, the report did not give full facts and hence it was the duty of the Committee to give to the appellants an opportunity to explain their conduct." The report to which reference is made in the above quotation was made by the Head Invigilator, and was as follows :‑ "Mr. Sabir Ali, an Invigilator, had noticed these students talking to each other three or four times and ignored it proba bly after warning. Then he found them again talking and took their scripts and brought them to me. I asked the students to explain the case. Then I asked Mr. Sabir Ali and he told me that he has ignored them for talking three or four times and then reported tire matter of the students Seats Nos. 226 and 227. (Sd.) 22-7-1965 Head Invigilator." A glance at the above report would justify the observation made in the preceding quotation. The same cannot be said about the report which was made by the examiner in this case, and which has been first reproduced.

4. The point that is involved in this aspect of the two cases becomes clearer if a reference is made to the observations of this Court in the reported Judgment while explaining the question which was examined in that case. The observations do not leave any doubt that the principles of justice were applied and stress was not laid on the submission of explanation to one authority or another. It was found as a fact that the first explanation of the appellant which was offered to the Head Invigilator was accepted, therefore, it was observed that punish ment could not be awarded by the Committee, without providing a fresh opportunity of submitting an explanation to it. The relevant observations appear at page 846 :‑ "The question therefore, is : Whether in the facts and circumstances of this case it could be said that there was sufficient compliance with the principles of natural justice. No doubt when breach of discipline by a candidate is detected by an invigilator in the Examination Hall the Head Invigilator in exercise of his power under Regulation No. 14 (ii) can expel him from the Examination Hall after such enquiry as he considers necessary. The Regulation makes him the final authority with regard to the question of misconduct of such a candidate. It may also be conceded that while taking action under the Regulation he is not required to hold a full‑fledged enquiry. All that is required is that the candidate sought to be affected by his order must be made aware of the allegation against him and given a chance to explain his conduct. If after questioning the appellants he had expelled them from the Hall one could have said that as their explanation was unsatisfactory, he had rightly exercised his power under Regulation 14 (ii). (P L D 1966 S C 841) He, however, after questioning the students returned their scripts to them and then they resumed their examination. From this the only legitimate and reasonable inference could be that he was satisfied with their explanation and as such did not with to take any action against them under Regulation din No. 14 (ii)."

5. In view of the foregoing . discussion, we think that Mr. Chisti's submission is not correct that adequate opportunity to submit explanation was not given in this case and that the A principles of natural justice were not complied with merely because explanation was not called by the Unfair Means Committee and was not submitted directly to it.

6. The petition is dismissed. Leave refused.