P L D 1976 Lahore 478 (PLP)

The petitioner appeared in the LL. B. Examination held in July/August '4 under roll No.

530. He was charge‑sheeted for having .committed certain. galities or irregularities in the Examination Hall on 18th July 1974 while ing examination in Paper III pertaining to mercantile law at Lahore Are No.

2. The actual charge‑sheet which was issued to the petitioner the 30th August 1974‑(photo stat copy Annex. 'A')‑reads as follows ~‑ "Form No. E. 225 UNIVERSITY OF THE PUNJAB REGISTERED No. 2567/A/U Senate Hall, The 30‑8‑1974. Controller of Examinations, University of the Punjab, Lahore. Mr. Shahid Mahmood Khan S/o Khan Bashir Pervez, 17/95, Krishan Nagar, Lahore. MEMORANDUM You are charged as under: (1) You appeared in the LL. B. Examination of 1973 held in July/' August, 1974 under Roll No.

530. On 18‑7‑1974 at 10‑15 a. m. while you were taking examination in Paper III, at Lahore Centre No. 2, one printed leaf, containing notes relevant in the question‑paper, was recovered from your custody in the presence of the Centre Inspector from which you might have copied. You misbehaved with the member.% of the Supervisory Staff and Centre Inspector and also created dis turbance in the examination hall. You refused to give your explanation to the Centre Superintendent. .(2) You are hereby called upon to submit your explanation to the above charge to the undersigned by name under a registered cover/through the Principal and also show cause within ten days of the receipt of this letter why you should not be disqualified under the Regulations (12, 13 and 18) printed on reverse. (3) You also have the opportunity to be heard in person, by the Disciplinary Committee, if you so desire. (Sd.) (A. A. NISAR), Deputy Controller (Examinations) and Secretary, Disciplinary Committee." The petitioner submitted a reply‑(copy Annex. 'B')‑which reads as follows :‑ "The Deputy Controller (Examinations) and Secrerary, Disciplinary Committee, University of the Punjab, Lahore. Sir, OFFICE MEMO No. 2567/A/U dated 30‑8‑1974. It is confirmed that I appeared in the LL. B. Annual Examination of 1973 held in July‑August, 1974, under Roll No.

530. But the allegations levelled against me vide your above‑noted memorandum are not correct. In this connection it is stated that Mr. Tahir Naseem son of Mr. Akhtar Naseem and two other invigilators who were posted in the Ceatre in which I was appearing, reside in Krishan Nagar and are my neighbors. After the first paper when they came to know that I was appearing from their Centre one of them approached me and told that they can be of great help to me if I oblige them by giving some gratification. Sir, being a good citizen I point blankly refused to accept their offer and indulge myself in malicious matters. They threatened me of dire consequences. Here it is added for your information that I know them very well for quite long and heir reputation in the Mohallah is not good. I wonder how such type of men have been able to get the honourable and responsible job of invigilation in such an important examination of LL. B. Later on they again offered me that I can copy out anything in the Examination Hall and they will be helping me in the matter without any consideration. This time too I refused ‑to accept their offer. I am of the view that due to my cold behaviour in becoming a party in their malpractice they appear to have made a concocted story against me and reported the same to you with a view to get me debarred from the examination as I failed to come to their expectation and did not accompany them in the evil deeds. It is submitted that I did my all papers quite honestly and did not use any unfair means. It is prayed that the above memorandum may very kindly be withdrawn and if your goad self considers it advisable I can also appear before you‑ personally. Thanking you. (Sd.)Yours obediently, (Shahid Mahmood Khan) 17/95, Krishan Nagar, ,Dated the 12 September, 1974 Lahore. A meeting of the Disciplinary Committee was convened and the peti tioner in connection with the aforesaid charge‑sheet was required to appear before it on 9th October 1974. The petitioner duly appeared but unfortu nately the Committee found the petitioner guilty of the violation hereinbefore mentioned and disqualified him for using unfair means for a period of two years under Regulations 13 and 18(3) at pages 196 and 191 of the University Calendar, Volume I (1963‑64). He was further disqualified as not being eligible to reappear in any University Examination earlier than Annual Examination of 1975. A Photo stat copy of the relevant order is Annex. `C' which reads as follows :‑ UNIVERSITY OF THE PUNJAB REGISTERED No. 2987/DC‑74, dated 15‑10‑74 From The Controller of Examinations, University of the Punjab, Lahore. To Mr. Shahid Mahmood Khan, 17/95 Krishan Nagar, Lahore. Unfair Means Case of Roll No. 530 For the LL. B. Annual 1973 Examination Held in July/August, 1974. This is to inform you that you have been disqualified for using unfair means in the above‑mentioned examination for a period of Two years under Regulations 13 and 18(3) at pages 196 and 197 of the University Calendar, Volume I (1963‑64). You will not be eligible to reappear in any University Examination earlier than Annual Examination of 1975. (Sd.) Deputy Controller (Examinations) for Controller. The petitioner filed a representation/appeal to the Vice‑Chancellor but without any success, as the same was rejected by the Vice‑Chancellor and intimation thereof was conveyed to the petitioner on 18‑12‑

74. It reads as follows "UNIVERSITY OF THE PUNJAB From Mr. Abdul Qadir Qureshi To Controller of Examinations, Mr. Shahid Mahmood Khan, University of the Punjab. 17/95 Krishan Nagar, Lahore. Lahore. Telephone : Office 52143 No. 3510/DC 74 Senate Hall, Lahore The 18‑12‑1974. Please refer to your appeal addressed to the Vice‑Chancellor against the orders of your disqualification for a period of two years under Regulations 13 and 18(3) at pages 196 and 197 respectively of the University Calendar, Volume I (1963‑64) in the LL. B. Annual Examination of 1973 in which you appeared under Roll No.

530. This is to inform you that your appeal hag been rejected by the Vice Chancellor. (Sd.) Deputy Controller (Examinations), for Controller." The petitioner has come up in writ petition against the aforesaid pro ceedings and orders to this Court.

2. Taking up the punishment under Regulation 18, it is necessary to reproduce the same in extenso. It reads as follows :‑ "

18. Any candidate who refuses to obey the Superintendent of an Examination in the Examination Hall, or changes his seat with another candidate, or changes his roll‑number card or creates disturbances of any kind during the examination, stages a walkout, resorts to a pen down strike, or instigates others to do so or otherwise misbehaves in or around any Examination Hall shall be liable to expulsion by the Superintendent or the Controller of Examinations or Inspector of a Centre or any officer duly authorised by the Controller of Examina tions as well as to any of the following punishments according to the seriousness of the offence: (1) Cancellation of the particular answer‑book concerned. (2) Disqualification for one year only. (3) Disqualification up to three years. The Superintendent of the Examination Hall shall report without delay each case in detail with evidence and explanation of the candidate concerned for final orders of the University." Learned counsel for the petitioner submitted that on the facts and in the circumstances of the case as brought on record no offence under the a foresaid Regulation can be said to have been committed by his client. The contention seems to have force. At this juncture reverting to the charge levelled against the petitioner with reference to Regulation 18 it states :‑ (a) that you refused to give your explanation to the Centre Superin tendent, and (b) that you misbehaved with the members of the Supervisory Staff and Centre Inspector and also created disturbance in the Examination Hall. So far as the accusation in (a) above is concerned, it has been held in Malik Hablbur Rehman v. Siddique Ahmad Khan and 2 others(P L D 1972 Lah. 8) to which I was a party, that failure or refusal to make a statement or give explanation in~ the Examination Hall does not fall within the penal scope of Regulation

18. As detailed reasoning in that case has already been given on the subject, I need not repeat the same here over again. On that basis it can, therefore, safely be held that the penalty imposed on the petitioner on that charge is clearly without lawful authority. As regards the accusation contained in (b) above, it is to be noticed that the charge is vague and indefinite. It does not contain any particulars or details as to what was the misbehaviour or form of misbehaviour and what was said by whom to whom when and B where. The charge gives an impression as if the misbehaviour is of the one and the $ame date when the petitioner was allegedly hauled up for having been found. in possession of some leaf of paper in the Examination Hall but in the comments submitted to this Court there has been quoted a report of the Centre Superintendent which reads as follows The authorities concerned have, it means (if they have accepted the above report of the Centre Superintendent)‑taken into consideration some past alleged misconduct of the petitioner for which he was. however, not charge sheeted. Due to this difference between the charge and the report punishment on accusation (b) also cannot be maintained.

3. Coming to Regulation 13, it reads as follows :‑ "(13) Any candidate detected in giving or receiving assistance or found guilty copying from any paper, book or note, or allowing any other candidate to copy his answer‑book, or using or attempting to use these or any other unfair means, shall be disqualified from passing any examination for a period not exceeding three years." In the instant case the charge regarding violation of Regulation 13 was to the following effect :‑ "You appeared in the LL. B. Examination of 1973 held in July/August 1974 under Roll No.

530. On 18‑7‑1974 at 10‑15 a.m. while you were taking examination in Paper lII, at Lahore Centre, No. 2, one printed leaf containing notes relevant to the question‑paper, was recovered from your custody in the presence of the Centre Inspector from which you might have copied." Here again the charge shows that the offence was only for being in possession of an objectionable material "from which you might have copied" and not that you in fact copied or were found copying. The parawise comments filed in this Court by the respondents, however, shows that the punishment was for actual copying and this was based on some post facto evidence collected by the authorities in the form of the report of the Examiner which the petitioner pleads was never shown to him. In the appeal filed before the Vice‑Chancellor the Deputy Controller of Examinations‑(who was also Secretary of the Committee)‑made the following comment "However, as the candidate is not satisfied with his previous hearing before the Committte, it is suggested that the case may kindly be referred to the concerned Committee and the candidate be permitted to appear before it." Nevertheless the learned Vice‑Chancellor rejected the petitioner's appeal revision. Be that as it may‑ the fact remains that the charge‑sheet is different from the finding ultimately recorded. Learned counsel for the respondents wanted to rely upon the writing which was obtained from the petitioner at the time of hearing before the Committee. It reads as follows "I appeared before the Disciplinary Committee and explain them all that happens in the centre. I had seen the file." Learned counsel for the respondents submitted that after having seen the file even if there was any difference between the charge and the finding that was immaterial, because, all the material, according to the learned counsel, had been brought to the notice of the petitioner who in the circum stances cannot be said to have suffered any prejudice either in comprehending the accusation or in the matter of leading defence if he really was minded to do so. The plea cannot be accepted. Firstly, because, even if the whole of the file was shown that does not mean that by doing that a charge different from the one which the competent authority had levelled got substituted for another or other charges which from the file could be built up. Secondly. even the fact that the whole file was shown has been seriously challenged in the amended writ petition where in para. 2 it has been averred as follows :‑ "that the case file of the respondents shows clearly that the petitioner was not confronted with the reports of the Examiner in resp.‑ct of the alleged copying of three lines of the objectionable material. No question was put to the petitioner in this aspect of the matter. The petitioner was merely asked to write on the back of a page of the file :‑ "I appeared before the Explainary Committee and explained them all that happens in the Centre. I had seen the file." The file does not show that any evidence was led or that the reports of invigilators, Deputy Superintendent and Cen,ral Superintendent accusing the petitioner of copying were put to the petitioner with a view to giving him a chance to specifically explain the allegations contained therein. The Dis ciplinary Committee recorded no statement of any person to explain the word "objectionable" as stated by the Examiner. The m re showing of file to the petition did not fulfill even the requirements of natural justice." No written statement to the a foresaid averment was filed with the result that I have to accept the above uncoutroverted pleas which 1 hereby do. If the recommendation of the Deputy Controller of Examinations, which he made to the Vice‑Chancellor and which has been reproduced above, is kept in view, I have no option but to accept the aforesaid grievance of the petitioner and to hold that the hearing before the Committee did not fulfil even the bare requirement of natural justice and the whole process seems to have been gone through in a hasty and haphazard manner. The penalty under Rule 13, in these circumstances, cannot also be maintained.

4. The upshot of the above discussion is that the present writ peti tion is accepted, the impugned orders are declared to be without lawful authority and of no legal consequence against the petitioner and are hereby quashed with the result that the case is remanded to the Disciplinary Com mittee for fresh decision in accordance with law after giving to the petitioner a proper hearing and reasonable opportunity to defend himself. Order accordingly. There shall be no order as to costs. S. A. H. Petition accepted. Case remanded.