1986 PLP 1848 (CLC)

Muhammad Hanif Mangi for Appellant. Kadir Bux Memon for Respondent. Date of hearing: 24th February, 1986. SYED ABDUR REHMAN J.‑‑Petitioner Amar Lal has by this constitution petition challenged the orders passed by the Board of Intermediate and Secondary Education, Sukkur debarring him from appearing in the examination for three years, then reducing the punishment to two years and again enhancing it to three years on the allegation of using unfair means at the S.S.C. Annual Examination Part‑II.

2. Briefly stated the petitioner's case is that he had appeared in the Annual Examination of 10th Class in the year 1985 at Government High School, Jacobabad centre from the Board of Intermediate and Secondary Education, Sukkur his seat number was 30220. He appeared and successfully completed all the papers of examination of 10th Class without any adverse report of copying or using unfair mean's‑and without any other complaint whatsoever from the Superintendent or any other officer responsible for the conduct of the examination. He was not even expelled by these officers at any time during the examination. After the completion of the examination the petitioner received a notice, dated 16‑5‑1985 from the Controller of Examinations of the said Board alleging that it was reported by the Superintendent of that Centre that he had been caught while using , unfair means in the Examination Hall in respect of English paper, thereafter he received another notice, dated 17‑5‑1985 making similar allegation in respect of Chemistry paper. He was called upon to appear before the Disciplidary Action Sub Committee on 8‑6‑1985 and 9‑6‑1985 respectively. The petitioner gave written reply to the said notices when he appeared before the Disciplinary Action Sub‑Committee. The Disciplinary Action Sub‑Committee after hearing the petitioner announced that he was innocent and absolved him of all the charges. In spite of that on 3‑8‑1985 a Gazette Notification was published declaring that the petitioner was debarred for a period of three years for using unfair means at the examination. He preferred a mercy petition against the said order on 20‑8‑1985. It was decided without affording any personal hearing to the petitioner. However in that decision the punishment of three years was reduced to two years. Again on 3‑10‑1985 the respondents issued a fresh notification enhancing the punishment to three years. Hence the petition.

3. The petition has been contested by the respondents who have filed parawise comments to the same. It was admitted that the petitioner had appeared at the Annual Examination of 10th‑Class in the year 1985 but it was denied that he had successfully completed all the papers or that the a complaint of using unfair means at the Examination Hall. It is alleged that Superintendent External/ Internal reported that the petitioner has used unfair means at the Examination Hall. The allegation of petitioner that he was afforded no opportunity of hearing was denied and it was alleged that he was given full opportunity of being heard. It has been claimed that the petitioner had smuggled the answer book outside the Examination Hall from where it was seized after 11 hours. Regarding the punishment it is conceded that it was reduced on appeal to two years and that it was not enhanced thereafter. It is admitted that petitioner was not expelled from the Hall. The expulsion it is contended, was not obligatory.

4. We have heard Mr. Muhammad Hanif Mangi Advocate for the petitioner and Mr. Qadir Bux Memon, Advocate for the respondents.

5. The, main contention of Mr. Muhammad Hanif Mangi, Advocate is that he is a victim of enmity and he was punished in spite of the fact that there was no report of using unfair means against, him. Besides he was not afforded any opportunity of being heard by the respondents. In this connection, it may be pointed out that the respondents have denied in their parawise comments, the above allegations. They have alleged that there were two reports against the petitioner and he was heard in person and was given full opportunity to meet the allegations levelled against him. The learned counsel for the respondents has produced the photostat copy of the report of Mr. Hakim Ali Lohar J . S. T. , Government High School, Jacobabad made to the Superintendent Internal at the Examination Centre. He has also produced a copy of report made by both the external as well as Internal Superintendents to the Controller of Examination on the basis of statement of Mr. Hakim Ali. It may be pointed out that the Committee before whom the petitioner appeared had asked questions from the petitioner and had also taken down his statements is writing and had obtained his signatures on the same. It would, therefore, appear that the denial of the Board is also substantiated by strong documentary evidence. Hence the allegation of the petitioner that he was not against or was not given an opportunity of being heard is incorrect founded and has been proved to be false.

6. Mr. Muhammad Hanif Mangi, Advocate had cited the case of Miss Tayyaba v. The Contoller of Examinations, Board of Intermediate and Secondary Education, Hyderabad, Sind and 2 others reported in PLD 1976 Kar. 481 where allegation of adopting unfair means by substituting answer books was made against the petitioner‑Full opportunity was not afforded to accused candidates to defend themselves‑‑Conclusion reached by Disciplinary Action Sub‑Committee, resulting in infliction of punishment, were found to be erroneous, resting on suspicion and without any legal proof. It was held that punishment was inflicted without lawful authority and that the maxim audi alteram partem was violated. This ruling would not apply to the facts of this case because in the case under the ruling, first a statement containing certain accusation was served upon the accused candidates which was substituted by another accusation which contained marked variation from the earlier. The conclusion of the Committee was based on the fact that there was a strong similarity in the answer books of both of them, who were brother and sister inter se which led to the conclusion that both of them had re‑written it in the answer books and managed to substitute them with the help of Superintendent whereas in the present case it is not so. The petitioner was actually caught in the examination room and it was noted that his answer book was not in his possession. On search the answer book was found in the Verandah outside the room after 11 hours. This was a clear cut case of using unfair means by getting the replies of the questions written on the answer book from outside the Examination Hall.

7. Mr. Muhammad Hanif Mangi, Advocate has then cited the case of Nadeem Tahir Bhatti v. Board of Intermediate and Scondary Education, Lahore through its Chairman and 2 others reported in P L D 1984 Lah. 17, where there was no allegation available against the petitioner and no positive finding recorded by Disciplinary Committee or Committee of Appeals as to whether, offence committed was intentional or inadvertent. Penalty imposed, was held not sustainable being violative of principles of natural justice. It was further held that the candidate cannot be condemned unheard for intentionally committing an offence for which he was never charged. Penalty can only be imposed in accordance with prescribed procedure on fulfilment of condition precedent laid down in Rules by following norms of natural justice. This case is also distinguishable with the present case. In this case the candidate was found having in his possession objectionable material while taking examination of Physics. Rule 6.6 of Board of Intermediate and Secondary Education, Lahore Rules provides two different penalties one for the offence if it was committed inadvertently and the other if it was committed intentionally. It was, therefore, held that notice should have clearly mentioned that the offence was committed by him intentionally before imposing a penalty prescribed for an intentional offence. Moreover the case was decided on this legal point and was not remanded to the Committee for reconsideration because the period of punishment was already over. Hence this ruling cannot be of any use to the petitioner.

8. Mr. Muhammad Hanif Mangi, Advocate has cited the case of Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another reported in P L D 1971 S C 838, where it was held that Tribunals like University or Secondary Board of Education albeit free (in domestic inquiry) from fetters and‑ formalities of judicial trial, nevertheless, not entitled to deprive individual of his valuable rights and privileges on mere conjectural grounds. Conjectures and suspicions cannot take place of proof. This ruling is also not applicable to the facts of the present case. The facts of this ruling are that the Student (Samar Pervaiz) actually obtained 533 marks and was placed in Second Division but in the Gazette he was shown to have secured 543 marks and placed in First Division. The Board presumed that inflation of marks must have been at instance of candidate himself, disqualified him from appearing at 7 examinations. It was held that the Board's decision was illegal. To say the least this ruling also does not, apply to the facts of the present case. In the present case there is no such conjectures or suspicions. I have already pointed out that the petitioner was caught while he had parted with the answer book and had smuggled it out of the Examination Hall. The same answer book was seized after 11 hours from outside the room duly filled in.

9. Finally Mr. Muhammad Hanif Mangi has cited the case of the University of Dacca through its Vice‑Chancellor and the University of Dacca v. 2akir Ahmed; where it was held that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". This' rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings.

10. This ruling also does not apply to the facts of the present case. There can be no denying to the maxim audi alteram partem but the case before us is net covered by the above maxim: audi alteram partem at all. In the case under ruling the respondent was expelled from the University for the alleged acts of indiscipline, misconduct and rowdyism. The finding against the respondent was based on the written reports of the teachers after a fight had taken' place during the convocation. No opportunity was given to the respondent to show cause against the said reports. This is not the case with the petitioner in the present writ petition. He was given full opportunity to show cause against the report and, therefore, it cannot be said that he was condemned without being heard.

11. The petitioner has not been able to show any malice or enmity with any one of the Officer connected with the above decisions or with invigilators of the Centre. He has also not exhausted all the remedies which were available to him before filing this writ petition.

12. It is well‑settled that in a writ petition the Court will not generally enter into disputed questions of facts. Some Courts have gone so far as to say that where facts are disputed the Court should not exercise this extraordinary jurisdiction. It is incumbent upon a party applying for a writ to show that he has a clear legal right and that the right is so clear as not to admit of a reasonable doubt or controversy.

13. Reference is in this connection may be to the case of Haji Feroze Din Raja and others v . Member Board of Revenue and others P L D 1961 Lah. 304 (D. B.) and Haji and others v. Member Board of Revenue and another P L D 1967 Lah.

329. This view has also been approved by the case reported in Tanvir Ahmed Siddiqui v. Province of East Pakistan Supreme Court in P L D 1968 S C 185 where it is held that disputed questions of facts requiring investigation are not a suitable subject for investigation under the writ jurisdiction. This Court has also held in Pir Bux v. Member Board of Revenue W.P. and 2 others PLD 1962 Kar. 712 (D. B.) that the High Court was not in writ jurisdiction to sit as a Court of appeal on the findings of fact.

14. Hence we are of the clear view that generally an administrative body is a sole Judge of these facts on which it taken a decision within its competence. This Court while exercising the powers of judicial review over such an administrative body will exceptionally interfere with its findings of. We are, therefore, satisfied that the petitioner has no case whatsoever and, therefore, he is not entitled to any relief from this Court. We, therefore, dismiss the writ petition. A. A. Petition dismissed.