P L D 1967 Lahore 1204 (PLP)

K. E. CHAUHAN, J.‑Muhammad Bashir (hereinafter called the petitioner) was taking up his University F. E. L. Examination in the month of June‑July 1966. On the 1st of July 1966, he was appearing in paper VI pertaining to the subject of "Development of Law and Legal Institution." According to the averment as contained in Paragraph 2 of the writ petition one M. Iqbal, a teacher of the Islamia High School, Lahore, was acting as an invigilator in the centre where the petitioner was taking his examination. The invigilator asked the petitioner to produce all the papers which the petitioner had in his pocket. He obeyed this direction and consequently there came out from his pocket two question papers of Papers IV and V of "Torts" and "Criminal Law" respectively, the examination of which subjects had concluded on some earlier dates. The petitioner was asked to explain this matter and he made a statement which as repro duced in the written statement of Respondent No. 2 (Controller of Examinations) reads as follows: "I brought question Papers Nos. IV and V inadvertently in the Examination Hall. These papers were detected by the invigilators and brought to the notice of the Superintendent. There is nothing on these papers which can be of help to me in today's paper. I am awfully sorry that I did not take the precaution before the commencement of the examination. "I had no intention of copying and there are no notes which could assist me in the examination hall in today's paper." However, the petitioner was allowed to do his paper and he continued with the same. On that date, the Superintendent then sent a report, which, as reproduced in the aforesaid written statement reads as follows:‑‑ "At 10‑40 a.m., the invigilator of the row Muhammad Iqbal suspected Roll No. 496 to have a bulky pocket. He was searched in my presence and two question papers were recovered from him on which he had scribbled some notes which might have been of some assistance to him in the examination Paper VI in which he was appearing today. The recovered material is attached with the file and is initialled and signed both by me and the Deputy Superintendent (pages 11‑14). It is highly probable that he might have brought them inadvertently as he has deposed in his statement.

2. It appears that the case was then taken up by the Controller of Examinations, who on the 1st of September 1966, issued a charge‑sheet to the petitioner, copy of which has been filed in the form of Annex "A" and reads as follows:‑ "Form No. E‑22

5. UNIVERSITY OF THE PUNJAB REGISTERED A. D. No. 5971/E. U. Senate Hall, The 1‑9‑1966. From Mr. Siddiq Ahmad Khan, M. A., Controller of Examinations, University of the Punjab, Lahore. To Mr. Muhammad Bashir, 25, Umar Din Road, Wasanpura, Lahore. Memorandum You are charged as under:‑ (1) On 1‑7‑1966 at 10.40 a.m., while you were taking examination in Paper VI for the F. E. L. Examination, two question papers with hand‑written notes on them relevant to the question‑papers were recovered from your possession. You had brought these question papers to the Examination Hall with the intention of copying from them and you did so. (2) The punishment for this offence (sic) is prescribed in the Regulations reproduced on the reverse, and by virtue of that you are liable to punishment prescribed. (3) 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 a fortnight of the receipt of this letter why you should not be disqualified under the Regulations printed on reverse. (4) You will also have the opportunity to be heard in person, if you so desire. (Sd.)......... Controller (Examinations) for Controller." The petitioner sent his reply, copy of which has been filed in the form of Annex. "B" which reads as follows:‑ "Mr, Siddiq Abmad Khan, M. A., Controller of Examinations, University of the Punjab, Lahore. Subject: Recovery of two question papers with some note on them while taking the F. E. L. Examination, Paper VI, on 1‑7‑1966 at 10 a.m. Sir. "With due reverence I beg to refer to your Memorandum No. 5971/E. U., dated 1st September 1966, calling upon me to explain the reasons why I should not be punished on the subject charge levelled against me. In reply I would submit that the case of unfair means as registered against me is entirely unjustifiable and bears no truth at all. It is true that I had question papers in my pocket, but there were no notes written on them and they could not be of any use to me from the examination viewpoint. They were left inadvertently in my pocket. I did not make any use of them nor I had any intention to use them. To the best of my knowledge I had scribbled some notes of my departmental account on them and it may be observed there from. In fact the case of unfair means registered against me was engineered by one Mr. M. Iqbal (a teacher of Islamia High School, Sheranwala Gate, Lahore), who acted as invigilator in the Centre. He bore personal ill‑will against me because during the execution of my duties in the capacity of a Ticket Collector, I had happened to charge him more than once on account of excess luggage and for making travel without ticket. I should like to mention that I had also informed the Superintendent to the effect at the commencement of the examination who will bear out the integrity of my statement. Later on, I also came to know that he (Mr. Iqbal) was turned out from the Examina tion Hall by the Superintendent, for his high‑handedness. I may assure your honour that there is not the least truth in this case and I am being victimised for no fault of mine. In the light of the above stated facts, ft is, therefore, humbly praye that the subject charge be waived in the name of justice and fairness and my paper may kindly be sent for marking. If at all it is not possible that the narrative given by me could be taken as genuine then I do not have anything to say but to request your good self to fix any date which suits your convenience and grant me an opportunity to be heard in person in the presence of the Superintendent of the Centre whom I wish to cross‑examine. I fervently hope that my above prayers will be considered sympathetically at your just hands and that I will be exonerated from the above cited charge. Yours obediently, (MUHAMMAD BASHIR) 25, Umar Din Road, Wasanpura, Lahore." As is evident from this reply, here again the petitioner reiterated that the papers recovered from him did not contain any scribbling which could be useful to him in the examination. He also claimed an opportunity of being beard in person and to cross‑examine the Superintendent of the Centre. The petitioner does not know as to what happened after the issuance of a charge‑sheet to him or after the submission of his above reply. He also does not know as to who or which agency took up the matter and what enquiries it made and what material it collected. He was given no personal audience as well. However, on the 1st of November 1966, he was endorsed a copy of a letter from the Controller of Examina tions addressed to the Principal of the Law College intimating that the petitioner had been disqualified for a period of two years for using unfair means in the examination under Regulation XIII published at page 196 of the Calendar Volume I (1963‑64). A copy of this letter is Annexure "G". Aggrieved by the aforesaid order, the petitioner has come up in writ petition to this Court under Article 98 of the Constitution for a declaration that the aforesaid order of the Controller of Examinations be declared to be without lawful authority and of no legal consequence against him with a further prayer that directions be issued to the respondent to declare the result of the petitioner with a right to appear in the next examination.

3. To start with, it may be mentioned that it has been conceded by the learned counsel appearing for the parties that in cases of disciplinary matters against candidates, the principles of natural justice will apply. Proceeding on that common ground, the learned counsel for the petitioner argued that the action which has been taken against his client is without lawful authority for the following reasons:‑ (a) that the petitioner had been promised an opportunity of oral audience in Annexure "A", the charge‑sheet itself. He submits that the petitioner had demanded the said hearing in his reply to the aforesaid charge‑sheet. In spite of this, the authorities concerned failed to give a personal hearing to his client. He argues that the action of the authorities in taking a decision against the petitioner without giving him a personal hearing, was against the principles of natural justice which would render the impugned order as without lawful authority. The right of personal audience apart from the promise contained in the charge‑sheet itself was invoked by the learned counsel for the petitioner on the principles of natural justice as well. (b) That the petitioner had expressed a desire to cross -examine the Superintendent of the Centre but this opportunity was also not provided to him and the petitioner was condemned on the report of the said Superintendent without giving him an opportunity to contest the statement of the said Superintendent. (c) That according to the rules of natural justice before a person is to be condemned; he must be given an opportunity to show cause against the action proposed to betaken against him. The opportunity to show cause, the learned counsel argues, carries with it the right to lead defence. In this case, he argues, that no opportunity to lead defence was given, even though the respondents, according to the written‑statement filed by them in this Court, had taken into consideration after ex post facto investigations, various facts and reports which were not shown to the petitioner. The said facts and materials, inter alia were: (i) the report of the Invigilator; (ii) the report of the Deputy Superintendent; (iii) the report of the Superintendent; and (iv) the report of the Examiner. The learned counsel submits that his client was never con fronted with any of the aforesaid material which was never shown or disclosed to him and to rebut or explain away the same, he was given no opportunity in the form of leading defence.

4. As regards the point at (a), the learned counsel for the respondents could not vehemently oppose it due to the position taken up by the Controller of Examinations in his written statement in Paragraph 7, where it was inter alia averred‑(that in case, as the learned counsel translated it, if this Court so holds "nevertheless the University will gladly provide to the petitioner an opportunity to be heard in person." Learned counsel for the contesting respondents however, relying upon the observations of the Supreme Court in The University of Dacca through its Vice‑Chancellor and another v. Zakir Ahmad (P L D 1965 S C 99) submitted that a personal hearing was not a requirement of the principles of natural justice. This authority instead of favouring the petitioner goes against him because it states that when a Tribunal takes decisions after ex post facto investigations into facts which would result in consequences affecting the person, property or other right of another person, then there is a duty to act in accordance with the principles of natural justice which imply the grant of a fair opportunity to make any relevant state ment putting forward his own case and to correct or controvert any relevant statement brought forward to his prejudice. It was held in the said case that since such an opportunity had not been provided by the University to the student involved therein, the order of the University was clearly without lawful authority. The actual passages in the judgment of the Supreme Court are contained at pages 103 and 104 and read as follows:‑ "In the present case, as we have already pointed out, there is no dispute that action was proposed to be taken ex post facto, The confidential circular issued by the University on the 25th of March 1964, calling for reports itself stated that it was necessary `to find out who were actually responsible'. There is, also no dispute that not only was no hearing given to the respondent in the present case but that he was also not given any show‑cause notice or any other kind of opportunity to submit any explanation, written or oral. Indeed, the University in its counter‑affidavit maintains that `there was no necessity of serving any show‑cause notice to him, as he had no cause to show having himself committed the breach of discipline which was well‑known to him in the presence of all.' This statement is; of course, not supported by the circular issued on the 25th of March, for there the position taken up is that information is required to find out who were responsible. Again, so far as the present respondent is concerned, he has been identified by only one of the 40 teachers as having participated in the distur bances. It is difficult, therefore, to appreciate how it can be said that the respondent concerned bad committed the disturbances in the presence of all of them. In these circum stances, two questions arise as to (1) whether the University acted properly in taking disciplinary action against the said respondent and (2) whether in going so they were required to act with that degree of minimum fairness which is embodied in the principles of natural justice. From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decision after ex post facto investigation into facts. which would result in consequence affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the applica tion of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of given case. What these principles of natural justice are, it is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was pointed out by the Judicial Committee in the case of the University of Ceylon v. Fernando. Tuker, E. J., said in Russal v. Duke of Norfolk (1949) 1 All. L. R. 109), `the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject‑matter that is being dealt with and so forth. Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the `elementary and essential principles of fairness' as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations made against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and `to correct or controvert any relevant state ment brought forward to his prejudice.' Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross -examining the witnesses against him or even to serve a formal charge‑sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him. In other words, 'in order to act justly and to reach just ends by just means' the Court insists the person or authority should have adopted the above `elementary and essential principles' unless the same had been expressly excluded by the enactment empowering him to so act." "In saying this we are not unmindful of the necessity of maintaining discipline in educational institutions or other institutions or departments where the maintenance of discipline is essential for the orderly conduct of the institution or depart ment concerned, nor are we unmindful of the fact that persons in charge particularly of educational institutions must be given the fullest authority to correct those placed in their charge in the same manner as a parent or guardian would be able to do. But even so, we find it difficult to accept the contention that they must also be freed from the necessity of acting in a manner, which excludes every reasonable possibility of unfair action being taken. This can only be achieved by observing certain formalities which have been designed to assure the minimum essential principles of justice and fairness, by at least telling the person sought to be punished or condemned what are the allegations against him and by giving him a fair opportunity to correct or contradict any relevant statement to his prejudice. In the present case, it is patently clear that this was not done. The respondent was afforded no opportunity of any kind whatsoever to submit any explanation or put forward his version." In Murlidhar v. University of Karachi through its Vice Chancellor and another and Muhammad Yousaf v. University of Karachi through its Vice‑Chancellor and another (PLD1966SC841), it was held as reported in head note at page 843, that, "as action was proposed to be taken ex post facto, the Committee was bound to give a hearing to the appellants," Applying the above principles to the facts and the circumstances of the present case, we are of the opinion that since the authorities concerned in this case took into consideration various material not known to him it was essential to provide a fair opportunity to the petitioner to make any relevant statement putting forward his own case and to correct or controvert relevant statement brought forward to his 4 prejudice. In these circumstances, the personal hearing was essential and the failure of the University authorities to provide such a hearing to the petitioner will render their order as without lawful authority. It may be pointed out that as laid down by the Supreme Court an answer to the question as to what are the minimum requirements of the rules of natural justice in any given case will depend upon the facts and circumstances of that case. In the instant case, since in the initial explanation, given by the petitioner in the Examination Hall, he bad stated that the papers recovered from him did not contain any such scribbling which might be of any help to him, it was essential to confront him with such scribbling which was later on allegedly found to exist on the recovered papers by the Disciplinary Cemmittee. The petitioner in his reply to the charge‑sheet also had stated. "It is true that I had question papers in my pocket, but there were no notes written on them and they could not be of any use to me from the examination view point. They were left inadvertently in my pocket. 1 did not make any use of them nor I had any intention to use them. To the best of my knowledge I had scribbled some notes of my departmental account on them and it may be observed there from. This plea of the petitioner also showed that he was denying the recovery of any such paper which may have contained any such scribbling which could be of any use to him in the examination. On the other hand, he bad taken up the stand that the scribbling, if any, was with regard to his own departmental account. In these circumstances also it was essential to show the necessary scribbling to the petitioner and to give him an opportunity to substantiate his position.

5. As regards the contention at (b), we are of the opinion that in the circumstances of the present case, an opportunity to cross‑examine the Superintendent was also essential. The peti tioner had taken up the position in the Examination Hall that the question papers recovered from him contained no such things which could be of any help to him in that day's paper. He had also stated that he had no intention of copying and that there were no such notes, which could assist him in the Examination Hall. On the other hand, in the report of the Superintendent, it was recited that two question papers were recovered from him on, which he had scribbled some notes, which might be of some assistance to him in the examination of Paper No. IV in which be was appearing on that date. There was thus a big difference between the stand taken by the petitioner and the Superintendent. Though the report of the Superintendent mentioned about scribbling on both the papers, but as the case has been argued before us, the scribbling is contained only on one paper and with regard to the other it has been conceded by the learned counsel for the respondents that there are no scribblings and notes thereon. In these circumstances, the demand for cross-examination was not unjustified and was a genuine demand on the principle of natural justice. Its refusal will, in the instant case, tentamount to violate this principle and will render the impugned order as without lawful authority. It was laid down by their Lordships of the Supreme Court in The Federation of Pakistan and another v. Sardar Ali and others (P L D 1959 S ,C (Pak.) 25 at p. 30), that where the material had been collected at the back of an accused person and statements had been recorded in his absence and he was not given an opportunity to cross‑examine, then the entire proceedings were vitiated. As laid down by their Lordships of the Supreme Court in the case quoted in the earlier pages of this judgment that it depends upon the facts and the circumstances of each case to find out as to what should have been the minimum requirements of natural justice and, as such, each case has to be examined on its own facts. In some cases, the failure to provide an opportunity for cross‑examination may not be serious, but in other cases it may be so. In Syam Sundar Misra v. The State of Orissa (AIR 1957 Orissa), and Allah Dad v. Colony Textile Mills Limited, Bhakkar (1961 P L C 940), it was held that when opportunity to cross‑examine is not given, the entire enquiry proceedings are vitiated. The facts of the instant case, in our view, did attract the said principles.

6. As regards the point at (c), it may be mentioned that in this case it is again a common ground that the Disciplinary Com mittee investigated and held enquiry into the matter. The said Committee, according to the written‑statement filed in this Court called for the report of the Examiner and also took into considera tion various other reports which were not, shown to the petitioner. Another important principle of natural justice is that a delinquent must be given an opportunity to produce evidence in his defence and refute the evidence produced against him and in the words of the Supreme Court in The University of Dacca through its Vice Chancellor and another v. Zakir Ahmad, he should be given an opportunity to correct or controvert any relevant statement brought forward to his prejudice. The Statements contained in the reports were never shown to the petitioner and they were brought forward to his prejudice at his back. As for example, it was told to us by the learned counsel for the respondents that the Examiner had reported that the answer to question No. 1 lead been copied from the alleged scribbling on the recovered paper. As a matter of fact, from the record produced before us, it appears that first the Examiner recorded that both the answer and the scribbling seemed to be identical. This may be so. But later, on the enquiry of the authorities concerned, he reported that the answer was copied from the scribbling. This shows that like the case of the University of Dacca through its Vice‑Chancellor and another v. Zakir Ahmad, the authorities in this case were also neither satisfied nor sure from the mere identical nature of the scribbling and the answer, as to whether the answer had been copied from the scribbling and this is why that they required further information from the Examiner. In these circumstances, to suggest, as was suggested in the Dacca Case aforesaid that here also the student knew as to what was the material against him is not correct. Anyhow, we are not told as to how could such a report be made by the Examiner. If two writings are identical then to say which has been copied from which cannot ordinarily be said by anybody and we have not been shown as to what were the special features of this case from which such an expert opinion was given by the Examiner. However, we are not expressing any opinion on this point and all we intend to say is that the non‑disclosure of such a report to the petitioner was in violation of the principles of natural justice. As regards the point at (d), suffice it to say that as held in Muhammad lhsan Khan v. The Province of West Pakistan (P L D 1963 Lah. 295), an opportunity to show cause includes a right to lead defence. In the present case, this opportunity was claimed in reply to the charge‑sheet and it was submitted that the Superintendent may be allowed to be cross‑examined. No explanation has been given as to why this opportunity was not provided to the petitioner. The failure of the respondents to provide an opportunity to lead defence in view of the peculiar circumstances of this case would render their order as without lawful authority.

8. The upshot of the above discussion is that the order impugned in this case is without lawful authority and is hereby declared to be so and of no legal consequence against the peti tioner. The respondents are directed to declare the result of the petitioner in accordance with law. The petitioner will get his costs. K. B. A. Petition accepted.