2016 PLP 158 (MLD)

The respondent was personally served, but he has opted not to appear in this case; therefore, he was ordered to be proceeded against ex-parte vide order dated 20.01.2015, and thereafter, intentionally a considerable gap was provided for hearing of ex-parte arguments of the petitioner, but when today, the case was called, none entered appearance for the respondent to join the proceedings.

2. According to the facts of the case, the respondent appeared in matriculation examination for Spring 1989, under Roll No.6700 in Science Group; however, when the result of the examination was notified on 22.07.1989, the respondent's result was not declared, and the reason was shown that photo on the admission form has, perhaps, been changed and the admission form of the respondent did not carry photograph of the respondent. As a result of facts finding inquiry, the Inquiry Officer vide his report dated 14.12.2005 found it a case of impersonation and also that the respondent himself did not take the papers of exam, rather some person, whose photograph was affixed on the admission form, appeared impersonating the respondent.

3. On receipt of such preliminary inquiry report, a proper charge-sheet was issued to the respondent and he was provided opportunity to defend himself. Instead of surrender before the Board of Intermediate and Secondary Education, Gujranwala, in pursuance of charge-sheet, the respondent filed a suit before the learned Civil Judge at Gujranwala, calling in question the issuance of charge-sheet.

4. On appearance, the Board of Intermediate & Secondary Education, by filing a written statement, has taken a specific objection as to the jurisdiction of the Civil Court in view of Section 29 of The Punjab Boards of Intermediate and Secondary Education Act, 1976 (Pb Act XIII of 1976).

5. Issue No.2 was specifically framed relating to the jurisdiction of Civil Court. The learned trial court, however, vide judgment dated 30.07.2009, has answered Issue No.2 against the petitioner-Board by holding that, the Civil Court being a court of plenary jurisdiction can take all the matters into cognizance even in the presence of an ouster clause. In similar manner, the learned first appellate court in judgment dated 07.10.2009, was also of the view that jurisdiction of Civil Court, in such cases, was not barred.

6. Section 29 of The Punjab Boards of Intermediate and Secondary Education Act, 1976 (Pb Act XIII of 1976), reads as under:- "No act done, order made or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any court." and while such provision of law has been interpreted in cases of Board of Intermediate and Secondary Education through Chairman and 3 others v. Javed Iqbal Bajwa (2005 YLR 2114), Board of Intermediate and Secondary Education Lahore through Chairman v. Ishrat Sultana (2001 YLR 66), Board of Intermediate and Secondary Education Lahore through Secretary v. Mst. Sobia Chand (1999 CLC 116), Education, Lahore through Secretary v. Mst. Ghazala Roohi (2002 MLD 1966), and Board of Intermediate and Secondary Education through Chairman v. Atif Riaz (2006 MLD 1378), it has consistently been held that, Civil Courts have no jurisdiction to entertain the suits relating to any order made or proceeding taken by a Board in pursuance of the provisions of Act XIII of 1976.

7. At the most, persons aggrieved of any order made or proceeding taken by the Board, can take protection of Section 31 of the Act, in order to institute a suit or to initiate any legal proceedings against the Board, but to take resort under Section 31 of the Act, it would be a condition precedent that the act done or proceeding taken by the Board or any official or employee of the Board was not in good faith.

8. In the present case, the plaintiff/respondent has not extended any allegation in the plaint as to any mala fide or lack of good faith on the part of the Board in issuance of charge-sheet. Only charge-sheet was issued and had the plaintiff joined the proceedings in pursuance of such charge-sheet, there was every possibility that he would have been exonerated from the charges levelled against him, if he succeeded in producing any plausible defence, but such statutory proceedings were avoided and a suit, which was barred under the law, was filed. The courts below have erred in law, while giving findings on Issue No.2 completely ignoring the effect of Section 29 of the Act.

9. In view of the clear wording of Section 29 of the Act and the interpretation, which so far has been made as to such provision of law, the Civil Court has no jurisdiction to entertain a suit filed against the proceedings taken and order made by the Board in pursuance of the provisions of the Punjab Act XIII of 1976. The findings on Issue No.2 arrived at by the courts below are, therefore, reversed and it is held that the Civil Court had no jurisdiction to entertain and adjudicate upon the suit, filed by the respondent.

10. Since it has been held that the Civil Court had no jurisdiction to entertain and adjudicate upon the suit; therefore, there is no need to dilate upon the merits of the case.

11. As a result of above discussion, this petition is allowed; the impugned judgments dated 30.07.2009 and 07.10.2009, passed by the courts below respectively are set-aside, and consequently the suit of the respondent/plaintiff stands dismissed. ZC/B-11/L Revision allowed.