P L D 1988 Lahore 412 (PLP)

This writ petition has been filed against the order of Disciplinary Committee of the Board of Intermediate and Secondary Education, Lahore, whereby the petitioner has been disqualified from appearing in the F.Sc. Examination and the following two examinations.

2. The brief facts of the case are that the petitioner was charge for adopting unfair means during the course of Intermediate Examination (Autumn), 1985. A charge‑sheet was issued to him on 30‑1‑1986. H filed a reply. He was required to appear before the Discipline Committee which comprised of Mr. Muhammad Ashraf, Headmaster Central Model High School, and Professor M.A. Hamed of Dyal Sing College, who after hearing the explanation of the petitioner, he him guilty of the charges.

3. The learned counsel for the Board has made available the original record which shows that the Disciplinary Committee gave the following reasons, for arriving at their conclusion: "The candidate was heard in person. It is quite evident from the answer book and the extra sheets that the candidate attached the sheets after the paper or he managed to get it solve with the cooperation of the persons on duty. He is getting only one mark out of 16 pages and getting 44 marks in extra sheets. Rules 6.8(iv ,vi) and 6.9 are established. So, the candidate is debarred from this examination and the following two examinations. The statement of the Sub‑Examiner also supports that the candidate got help."

4. The learned Legal Adviser for the Board, on the strength of the original record, submits that it is not true that a statement of the Sub Examiner was recorded by the Committee as is referred to the Disciplinary Committee's proceedings. The factual position according to him is that a report was made by the Sub Examiner on 16‑12‑198 whereby he had noticed certain unusual features, prima facie, tending to show that unfair means had been adopted and asking for a probe in the matter.

5. Apart from the above wrong assumption which, weighed wit the Disciplinary Committee, I have asked the learned counsel for the Board to show to the Court any piece of evidence that the candidate attached the sheets after the paper or he managed to get it solve with the cooperation of the persons duty. His reply is that the first part of the observation flows from on examination of the answer book but in so far as the second part, is concerned he is in possession of no evidence to justify the conclusion.

6. The petitioner then appealed before the Committee of Appeal which comprised Mr. Akhtar ud Din, Principal, Islamia College, Lahore and Professor Bhatti, Principal, Science College, Wahdat Road, Lahore The appeal was accepted by order dated 30‑3‑1986. The Committee o Appeal recorded the following findings‑ "Heard in person. As verified from the relevant record, sheet bearing numbers 668519 and 668522 were issued to the candidate by the Centre Superintendent. The answers on these sheet are in candidate's own handwriting. The difference in quality of answers in the main script and the additional sheets appear to be a matter of mere chance. In view of the above the guilt of the candidate is not proved. His appeal is therefore accepted and he is let off."

7. Not satisfied with the decision of the Committee of Appeal the Board of Secondary Education filed what they called a review for consideration by a Review Committee to be constituted ‑by the Chairman of the Board. The departmental file further reveals that a recommendation was put up to the Chairman of the Board that already in connection with another case a Review Committee comprising Dr. Abdul Majid Awan and Mrs. Mamoona Ansari had been constituted and if approved the petitioner's case may also be put up before the same Committee. This proposal was blessed by the Chairman on 8‑4‑1986. Consequently, the petitioner was required to appear before the Review Committee. The petitioner on 14‑4‑1986 made a representation to the Chairman of the Board of Intermediate and Secondary Education asking for the decision of the Committee of Appeal and for declaration of the result of Autumn Examination, 1985 and in case he had failed in any of the subjects a special examination be held for him to appear in that subject because he had missed the Spring Examination because of dilatory tactics of the Board employees and lastly that a copy of the decision of the Disciplinary Committee and that of the Committee of Appeal alongwith the constitution and set up of the Review Committee may be supplied at the earliest to him.

8. The proceedings of the Review Committee dated 19‑4‑1986 show that the petitioner appeared before them and was heard. The order of that day further shows that the points raised by the Sub Examiner and the. Disciplinary Committee were told to the candidate and he could not give satisfactory explanation. However, it was observed that to probe thoroughly and to do justice, his other copy (answer sheets) be seen to get an idea of style and presentation of matter in writing. The Board Authorities were therefore requested to present the answer sheets of the candidate in the next meeting. The file of the Board further shows that the proceedings were then held on 21‑6‑1986. The minutes of the proceedings recorded do not show that the petitioner was present or was heard or was confronted with the new material asked for. The proceedings of 19‑4‑1986 also do not show that the petitioner was required to appear on any specified date. All that was observed on the said date was that the answer sheets of the candidate be produced in the next meeting. There is nothing on the record to show that the petitioner was informed of the next date of hearing i.e. 21‑6‑1986. It is rather surprising to find that notices of the next meeting to be held on 21‑6‑1986 at 9 a.m. were sent by the Deputy Controller (Secrecy) of the Board of Secondary Education, vide No.4108. SD.11 dated 19‑6‑1986 to Dr. Abdul Majid Awan and Mrs. Mamoona Ansari, the two learned members of the Review Committee. No notice as per record was sent to the candidate whose fate was being decided by the said Review Committee.

9. The question here arises whether a hearing which was granted to the petitioner on 19‑4‑1986 could be called to be a proper hearing within the purview of the requirements of natural justice because on the said date he was merely asked certain questions and material to be used against him was obtained from the Board on 21‑6‑1986 for which no notice was given to the petitioner . In such a situation, there can be little manner of doubt that the Review Committee fell into a serious legal error in taking the proceedings in the absence of the petitioner and using matter and material for drawing inferences A against him and holding him guilty without giving him an opportunity to explain his position or to rebut the material which was being used against him. This rule of natural justice is so well‑settled that it is hardly needs any elaboration on my part. Reference may be made to the University of Dacca v. Zakir Ahmad (P I, D 1965 S C 90) and Vice Chancellor, University of the Punjab v. Muhammad Zahur Nasir (1985 S C M R 802).~

10. In view of the conclusion arrived at by me from the record of the proceedings that the rules of natural justice had not been followed and no fair opportunity had been granted to the petitioner before condemning him, the other question raised by the learned counsel for the petitioner whether the Review Committee could legally be constituted or not does not require to be answered in the facts and circumstances of the present case.

11. To sum up, it may further be observed that the order of the Disciplinary Committee in so far as it held that the statement of the Sub‑Examiner also supports that the candidate got help is based on no evidence. This aspect has not been disputed at the hearing. Similarly, the finding of the Committee of Appeal that the answers on the additional sheets are in the candidate's own handwriting were not differed with by the Review Committee which, on the contrary, inter alia, observed that style of writing also showed that the candidate had written very hurriedly but then added "he has been helped illegally by some other person". The second part of the observation that 'he has been helped illegally by some other person' is based on no evidence, whatsoever. It may have been an observation based on a strong suspicion on the overall examination of the entire case of the petitioner but as is well‑settled mere suspicion howsoever strong it may be is no substitute for proof. Reference may advantageously B be made to the following observations of the Supreme Court in Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore (P L D 1971 S C 838):‑ "It is true that domestic Tribunals like a University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial, and while these can, consistently with the demands of justice, be ignored, it does not, by any means, follow that such domestic forums, while dealing with valuable rights and privileges of an individual, can snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof. A Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence." The second finding of the Review Committee that it was a clear case of cheating and unfair means used by the candidate is also, in the facts and circumstances of the case, based on conjectures and not on any piece of evidence collected or made available to the Review Committee in the course of the proceedings. 12. 1 must observe before parting that judicial scrutiny of this case has left me with the impression‑ that our learned educationists are not well‑versed with the legal proceedings and the Board should itself consider the desirability of associating their Legal Adviser with such like proceedings so that serious legal flaws do not creep into the proceedings.

13. The upshot of the above discussion is that the impugned , proceedings taken against the petitioner by the Review Committee are declared to be without lawful authority and of no legal effect. The writ petition is accepted. There will be however, in the circumstances of the case, no order as to costs. M. B. A. /M-692/L Revision accepted.