P L D 1973 Lahore 600 (PLP)

(ii) from passing that particular examination and from appearing in the immediately following examination (annual or supplementary) if the offence is intentional. (8) A candidate shall be disqualified from passing the particular examination and from appearing in the immediately following three examinations (annual and supplementary) if he is found guilty of: (iv) copying from any paper, book or note;

7. At the hearing in the writ petition before the learned Judge in Chambers it was conceded on behalf of the appellants that the respondent was never found having in his actual possession or accessible to him in the examination hall any objectionable material and that as such he could not be held guilty under rule 5(ii). It was argued on behalf of the respondent herein that rule 8(iv) was in reality an aggravated form of the misconduct in rule 5(il) and solely dependent on it. As such according to the learned counsel, the conviction of the respondent under rule 8(iv) too had no basis and could not be sustained per se. But the learned Judge in Chambers repelled this conten tion in this behalf. He agreed with the appellants in holding that rule 8(iv) was a distinct and an independent provision from rule 5(ii) and not dependent on it. He held that although rule 5(ii) visualises that the candidate should have been found in possession of the objectionable material "in the examination hall" but rule 8(iv) was an independent provision and is not hedged in by any such stipulation. He, therefore, refused to accept the contention that rule 8(iv) could come into play only after a candidate was found guilty of misconduct under rule 5(ii). In his opinion instances can be found where it could be con clusively proved that the candidate had copied from some paper, note or book but this escaped the notice of the supervisory staff while the candidate was doing it in the examination hall. But that did not mean that he could not be convicted under rule 8(iv) if he was otherwise, held to be guilty of having copied from any paper, note or book. At the same time the learned Judge in Chambers found some weight in the next contention of the learned counsel for the respondent to the effect that in this case the "ultimate punishment imposed upon the petitioner was not in conformity with the allegations levelled against him in the charge-sheet" In this connection he observed that according to the charge‑sheet the case of the prosecution was that the respondent possessed objectionable material and had copied therefrom "in the examination hall", and, therefore, he was guilty under rule 5(ii) and rule 8(iv). But admittedly no such objectionable material was actually found in his possession in the examination hall and rule 5(ii) was not at all attracted. Consequently, in the opinion of the learned Judge in Chambers, the farther allegation that he had copied from the said objectionable material which was in his possession in the examination hall, was really conjectural. He observed that the Disciplinary Committee found that the respondent was guilty of misconduct and disqualified him under both the rules 5(ii) and 8(iv) for four examinations. In this connection, in his opinion, it was not possible to bifurcate the order passed by the Disciplinary Committee and exclude the part of its order that was bad and retain the part of the order which was good. In these circumstances the learned Judge in Chambers held that since a part of the impugned order was admittedly bad the whole order should be treated as bad in law and of no legal effect. In consequence the Court quashed and declared the whole order disqualifying the respondent for four examinations as without lawful authority and of no legal effect. Hence this appeal before us by the aggrieved appellants.

8. We have heard the learned counsel for the parties in this case at some length. The learned Judge in Chambers proceeded on the assumption, and indeed it was conceded on behalf of the Board, that rule 5(ii) visualises that the candidate should have been in possession of the objectionable material in the examina tion hall and that the respondent could not be held guilty of this offence as he was not found in actual possession in the examination hall of any such material. Rule 5(ii) lays down that if a candidate is found having in his possession or accessible to him in the examination hall, papers, books or notes, which might possibly be of assistance to him in solving the question paper, he shall be disqualified for two examinations. In this connection before us the learned counsel for the appellant rightly contended that the gravamen of the offence under rule 5(ii) lies in the possession by the candidate or accessible to him, in the: examination hall, of the objectionable material. Therefore, it does not stand to reason that the commission of this offence by the candidate under the rule was in any way contingent upon its actual recovery and detection in the examination hall by the supervisory staff and only if the candidate was caught red‑handed in actual possession of or physically accessible to him in the examination hall of the objectionable material. Any such interpretation is bound to promote the mischief which must be suppressed. In case the interpretation placed by the respondents is accepted it shall be helpful to dishonest and will mean that a willy candidate can go scot free if he was able to successfully deceive and evade his invigilators who were either negligent or who omitted and failed to intercept him on the spot in the examination hall. In his judgment under appeal the learned Judge in Chambers in interpreting rule 8(iv) illustrated his answers with reference to an instance reproduced below. He observed that:‑ "Instances can be visualised where it can be conclusively proved that a candidate has copied from some paper, note or book but this act escaped the notice of the supervisory staff while the candidate was doing it in the examination hall, for example a candidate may have taken a written note with him in the examination hall from which he has copied verbatim but by inadvertence left the same in the answer bock which is: noticed by the Sub‑Examiner while checking the answer book. In these circumstances the Sub‑Examiner would be justified in bringing this case of unfair means to the notice of the authorities specified and the candidate could be found guilty of misconduct specified in rule 8(iv)." But here I may respectfully ask then how is it that he cannot be found guilty of the offence under rule 5(ii) as well if the irresistible conclusion and the finding from all this material is that he was having in his possession or accessible to him in the examination hall the objectionable material. Any such absurdities in the interpretation of rule 5(ii) must be avoided. This will not only promote the mischief, but it shall also defeat the very purpose for which these rules are made to prevent the use of unfair means by the candidates in their examinations. Therefore, notwith standing the admission by the counsel for the appellants herein before the learned Single Judge, I am not persuaded to place such a rigid and narrow interpretation on rule 5(ii). In my opinion the expressions "if a candidate is found having in his possession or accessible to him in the examination hall," in the context of this rule, does not necessarily mean that he was physically found, in the examination hall, to be in possession of or accessible to him the objectionable material. The rule is not merely confined to the cases of such recoveries actually made from the candidates 1n the examination hall. On a rational and beneficial interpretation the word "found" in the context means and has reference to the ultimate finding recorded by the Disciplinary Committee based on the evidence as a result of the enquiry made by it. In other words this rule is fully attracted fin case on the material placed before it the Disciplinary Com mittee was satisfied that the candidate was in possession of or had accessible to him in the examination hall any such objection able material of the kind. It penalizes and is a deterrent against the candidates from bringing any such objectionable material with them in the examination hall. In my respectful opinion, therefore, the findings by the learned Single Judge on this part of the case in the judgment-under appeal is liable to be reversed. In this connection the Board was not estopped and is not bound by the erroneous admission of its counsel on a pure question of law on the interpretation of this rule.

9. I fully agree with the learned Single Judge in his inter pretation to the effect that rule 8(iv) of these Rules constitutes a distinct and separate offence and is not at all dependent on rule 5(ii). In this connection he was rightly of the opinion that the finding by the Disciplinary Committee against the respondent under rule 8(iv) to the effect that he was guilty of the misconduct, was unexceptionable.

10. In conclusion the learned Judge in Chambers in his judgment under appeal observed as under:‑‑ "I find that the Disciplinary Committee has held him guilty and disqualified him both under rules 5(ii) and 8(iv) for four examinations. Learned counsel for the respondent has submitted that in so far as disqualification under rule 8(iv) was concerned, the same was justified and the mere fact that the petitioner had also been held guilty under rule 5(ii) would not make any difference. But it is not possible to bifurcate the order passed by the Disciplinary Committee in these pro ceedings and exclude the part of its order that is bad and retain the part of the order which is good. I am inclined to hold that since a part of the order is admittedly bad, the whole order should be declared to be bad in law and of no legal effect." In this connection according to the order dated the 10th of October 1970 passed by the Disciplinary Committee (copy Annexure R‑3) the respondent was found guilty of both the charges and he was disqualified under rules 5(ii) and 8(iv) for four examinations. However, the learned counsel for the appellants relied on a Memo. No. 1977‑Sd/‑1 dated the 23rd of October 1970 (Annexure B to the Writ Petition) from the Assistant Controller of Examination, Board of Intermediate and Secondary Education, Lahore, addressed to the Headmaster, Government Pilot Secondary School, Wahdat Colony, Lahore copy forwarded to the respondent, to show that in fact he was separately disqualified for two Examinations i.e. Annual and Supplementary of 1970 under rule 5(d) and for four Examinations Le. Annual and Supplementary of 1970 and 1971 under rule 8(iv). But there is nothing on this record before us to show that this bifurcation in the conviction of the respondent under the two rules was made by the Assistant Controller of Examination under any lawful authority and he could not substitute his own judgment for that of the Disciplinary Committee.

11. But in spite of this I am unable to endorse the view formed by the learned Judge in Chambers. In this connection it may be mentioned here that rule 5(ii) itself specifies the punishment for those found guilty under it. If a candidate is found having in his possession or accessible to him in the examination hall the objectionable material, he, shall be disqualified from passing "that particular examination and from appearing in the immediately following examination (annual or supplementary) if the offence is intentional." In this connection there is no discretion left with the authority to alter the penalty fixed in the rule. Similarly according to rule 8(iv) the candidate found guilty of the offence shall be disqualified from passing the particular examination and from appearing in the immediately following three examinations (annual and supplementary). This penalty is fixed in the rule and the competent authority has no discretion in the matter. Therefore, there was no real difficulty felt by the learned Single Judge in allocation and bifurcation of the penalty separately imposed and prescribed under these two rules. Even otherwise In the light of my above finding to the effect that the Disciplinary Committee was justified in holding the respondent guilty under both the rules 5(ii) and 8(iv), this difficulty with which the learned Judge in Chambers was confronted, does not arise.

12. At the hearing the learned counsel for the appellants vehemently submitted before us that, even on the basis of the finding recorded by the learned Judge in Chambers, this Court had no lawful authority under Article 98 of the Constitution to substitute his own Judgment and issue the directions to the appellants in this behalf. I find that the learned Single Judge after having quashed the impugned order against the respondent proceeded to hold as under:‑ "The petitioner has, in fact, already practically suffered the punishment imposed upon him and has not been able to sit in any examination up to the Supplementary Examination 1971. In these circumstances, to re‑start the proceedings against him under rule 8(lv) would be most unjust. Moreover, the only allegation is that he copied one question in a paper carrying 75 marks, in which he has got only 39 marks. Another candidate who was suspected of having done so, by the Sub, Examiner, was exonerated as be was able to reproduce the answer given by him by heart, before the Disciplinary Committee. In these circumstances, I would direct that the petitioner's result should be declared, on basis that he has obtained 39 marks out of 75 in the Elective Chemistry paper held on 11‑4‑1970. The petition is disposed of in the above terms. No order as to costs. In this respect the learned counsel for the appellants his forcefully argued before us that this Court has no lawful authority under Article 98 of the Constitution to sit on appeal on the impugned order passed by the authority and to substitute its own judgment ''by holding the respondent as having successfully passed in the examination in question.

13. The writ jurisdiction of the High Court is circumscribed by Article 98 of the late Constitution of Islamic Republic of Pakistan. 1962. In this connection Article 98(2)(a)(ii) lays down that a High Court of Province, if it is satisfied that no other adequate remedy is provided by law, on an application of any aggrieved party make an order declaring that any act done or proceedings taken in the Province by a person performing fun dons in connection with the affairs of the Centre, the Province or a local authority has been done or taken "without lawful authority, and is of no legal effect". Under the law the most P that the High Court can do is to simply pronounce upon the invalidity of the order and declare that it was "without lawful authority and is of no legal effect". Beyond it, strictly speaking, this Court has no jurisdiction to issue any other direction and substitute its own judgment in the matter. After the order has been quashed in this manner it then rests entirely with the competent authority or the tribunal concerned to pass any further order that may be necessary in the exercise of its jurisdiction in the light of the law thus declared. In this connection the Supreme Court of Pakistan in Begum B. H. Syed v. Mst. Afzal Jahan Begum and another (P L D 1970 S C 29), observed that: "It is not disputed that the High Court had no jurisdiction to go into the merits of the case and substitute its own finding on the merits." Similarly in another case in Nawaza v. The Additional Settlement and Rehabilitation Commissioner (P L D 1970 S C 39), the Supreme Court held that the High Court, in the exercise of its writ jurisdiction, in a case like this, did not act as a Court of facts and ought not to enter into and decide disputed questions of fact. In Syed Azamat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others (P L D 1964 S C 260), the Court held that the superior Court, exercising writ jurisdiction, had full power to do justice but not to substitute its own decision for the decision of the inferior authority and it was more appropriate to return the case to the authority or tribunal concerned for a decision in accordance with the law after quashing the order complained against. In Umar Daraz Khan v. Muhammad Yousaf (1968 S C M R 880), the Court held that the High Court in the exercise of its extraordinary jurisdiction would not substitute its own decision for the decision or the inferior tribunal or authority. In such cases it was proper to remand the case to the authority or the tribunal for its decision in accordance with the law. Indeed this proposition is well settled and does not admit of any doubt. In this connection it is not necessary to discuss some of the other authorities cited before us in Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property. West Pakistan, Karachi (P L D 1964 S C 865). Province of East Pakistan v. Daulatpur Jute Mills Ltd. and another (P L D 1968 S C 398), Muzafar Ali Shah and others v. Registrar, Co‑operative Societies, Karachi and another (P L D 1968 Kar. 422) and Muhammad Tufail v. Chief Settlement and Rehabilitation Commissioner and another (P L D 1971 Lah. 257).

14. The Board of Intermediate and Secondary Education, Lahore is in the nature of a mere domestic tribunal constituted under the law and a dispute of this kind between the Board and the candidate admitted to the examination arranged by it, is primarily domestic. Such a dispute can be more properly resolved in the homely and domestic atmosphere of the Board, and should not be ordinarily allowed to be dragged to the law Court. In this connection in Thomson v. Lodon University ((1964) 33 L J Ch. 625), at page 634, Kindersly, V. C. observed that: "The holding of examinations and the conferring of degrees being one, if not the main or only object of this University, all the regulations, that is the construction of all the regulations and the carrying into effect of all those regulations as among persons who are either actually members of the University or who come fn and subject themselves to be at least pro hac vice members of the University . . . . I mean with respect to the degree which they seek to have conferred upon them . . . . all those are regulations of the domus: they are regulations clearly in my mind coming within the jurisdiction and the exclusive jurisdiction, of the Visitor." Similarly in R. v. Dunsheath Ex Parte Meredith ((1950) 2 A E R 741), the Court was of the opinion that actions of this kind relating to domestic disputes between members of the London University (as is the case with other universities) are matters which are to be dealt with by the Visitor and the Court has no jurisdiction to deal with them. In that case mandamus was refused on the ground that the question whether an officer of the university had refused to perform a duty placed on him by the Statutes of the University was a domestic matter and, therefore, essentially for the Visitor to see. In relying on these observations the Court of Appeal 1n Thorne v. University of London ((1966) 2 All E R 338), held that the High Court did not act as a Court of appeals from university examiners. The salutary reason behind this rule is enshrined in the following observations by Kindersley, V. C. in the above mentioned case of Thomson v. The University of Loncton: "Whatever relates to the internal arrangements and dealings with regard to the government and management of the house of the domus of the institution, is properly within the jurisdic tion of the Visitor, and this only under the jurisdiction of the Visitor, and this Court will not interfere in those matters; but when it comes to a question of right of property, or rights as, between the University and a third person dehors the University, or with regard, it may be, to any breach of trust committed by the corporation, that is, the University, and so on, or any, contracts by the corporation, not being matters relating to the mere management and arrangement and details of their domus, then, indeed, this Court will interfere."

15. However, in this connection the learned counsel for the appellant, in all fairness, conceded before us that in resolving disputes of this nature the domestic tribunal or the authority must always abide by and follow the fundamental principles of natural justice. In general those requirements must depend on the facts and circumstances in each case. It is absolutely necessary that it must arrive at its decisions fairly by just means. This principle was very well explained in the well‑known case of the Board of Education v. Rice and others (1911 A C 179). The Court observed as under:‑ "In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the Board. The Board is in the mature of the arbitral tribunal and a. Court of law has no jurisdiction to hear appeals from the determina tion either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari." In this connection in the University of Ceylon v. Fernandez ((1960) 1 All E R 631), their Lordships of the Privy Council deprecated the tendency on the part of the Supreme Court of Ceylon to regard the case such as if it Involved an appeal or re‑hearing of, a trial held by the commission rather than an invocation of the limited jurisdiction of the Court to restrain the abuse of quasi judicial pro ceedings, where the sole issue is whether the result, be it right or wrong, was arrived at with due regard to the principles of natural justice. The Privy Council further observed that "The plaintiff might have fared better if the charge against him had been tried in accordance with the more meticulous procedure of a Court of law, which would have included as of course the tendering of Miss Balasinghan for cross‑examination. But that is not the question. The question is whether, on the facts and in the circumstances of this particular case, the mode of procedure adopted by the Vice‑Chancellor, in bona fide exercise of the wide discretion as to procedure reposed in him under clause 8, sufficiently complied with the requirements of natural justice. In their Lordships' opinion, it has not been shown to have fallen short of those requirements." In this connection in T. A. Miller Ltd. v. Minister of Housing & Local Government and another ((1968) 2 A E R 633), Lord Denning M. R. observed that a tribunal, of this kind was master of its own procedure, provided that the rules of natural justice were applied and was entitled to act on any material which was logically probative, even though that was not evidence In a Court of law.

16. In this country in the University of Dacca and another v. Zakir Ahmad (P L D 1965 S C 90), the Supreme Court of Pakistan held that in all proceedings by whomsoever held, whether judicial or adminis trative, the principles of natural justice had to be observed if the proceedings might result in consequences affecting the person or property or other rights of the parties concerned. In this connec tion the Court observed: "The requirements of natural justice must depend on the circumstances of the case, the nature of 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, a person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given fair opportunity to make any relevant statement putting forward his own case and 'to correct or controvert any relevant statement 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 given 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 Courts insist that 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."

17. In this case in reply to the charge‑sheet the respondent denied that be had copied the answer in question and asserted that he prepared his paper well, crammed and learnt the answer by rote and bad reproduced it from his memory in the examina tion. In this connection the Disciplinary Committee of the Board, during the course of enquiry gave a chance to the respondent to reproduce the answer in dispute from his memory. But. according to the impugned order passed by the Committee, he failed miserably and replied that he had forgotten the answer. He even failed to answer the question in his own words. From this, the Disciplinary Committee was convinced that respondent must have copied the answer from the textbook in the examination during the course of his examination. In this connection the respondent falsely alleged in his writ petition that before the Disciplinary Committee he had narrated the whole answer word‑by‑word as he had learnt it by heart. But it is difficult to rely on the statement of the respondent in preference to the impugned order passed by the Committee consisting of responsible persons. Actually before us at the hearing the learned counsel for the respondent did not even rely on this contention. The enquiry against the respondent was made in accordance with the principles of natural justice. He also appeared before the Disciplinary Committee and was heard. In this connection he averred in the writ petition that the Disciplinary Committee failed to examine the Sub‑Examiner who reported against him in his presence and he was not afforded any opportunity to cross‑examine him. But according to the law discussed above it was not at all necessary to do so in such cases. The Disciplinary Committee was not bound to treat the pro ceedings before it as a regular trial. There is no doubt that the Committee acted fairly towards the respondent and this Court cannot sit in appeal on its order. In these circumstances, I am constrained to find that the learned Judge in Chambers was not justified in quashing the impugned order by accepting the writ petition before him. His judgment is, therefore, liable to be reversed.

18. For the foregoing reasons, I would accept this appeal, reverse the judgment by the learned Judge in Chambers and dismiss the writ petition filed by the respondent against the appellant. But there is no order as to costs in the circum stances. K.B.A. Appeal accepted.