1988 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑In this appeal the prayer of the appellant, Farman Ali, is that the order dated 10th September, 1985 passed by the Secretary, Education Department, Government of Sind whereby he was compulsorily retired from service may be set aside. The appellant was working as a Lecturer in English Government College, Hyderabad when the above impugned order was made. To begin with he was served with show‑cause notice, dated 26th March, 1985 containing allegations relating to his having acted as Examiner for assessing the answer books of English, of the HSC. Examination Part I (Class XI) Annual Examination of 1981 of BISE. Hyderabad. By the same notice he was further called upon to explain as to why all or any of the penalties prescribed by rule 4 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, (hereinafter referred to as the said rules) should not be imposed on him. The appellant submitted a detailed reply in which he categorically denied all the allegations made against him adding further that he had been victimised due to ill‑will and displeasure of the Board Authorities. The Authorised Officer who was somehow not impressed by his explanation submitted his recommendation to the Authority, namely the Secretary, Education who passed the impugned order referred to above.

3. We heard the detailed arguments of the learned counsel for the parties and with their assistance glanced through all the documents relevant for disposal of the appeal. It may be convenient to reproduce the charges contained in the show‑cause notice served on the appellant as under: "The details of your misconduct /indiscipline are that:‑ You were appointed as examiner to assess the answer books of English subject of HSC. Part I (Class‑XI) Annual Examination 1981 of BISE Hyderabad in which capacity you committed following illegal acts. (1) You did not maintain the secrecy of the job assigned to you with the result that every candidate knew the series of the answer books which were given to you for assessment. (2) The answer books which were already marked drop/cancelled and signed by the candidates and invigilators were assessed and awarded and higher marks. (3) You awarded maximum marks to the un‑deserving candidates on their demands. (4) You allowed the candidates to re‑write on the blank pages. The questions already attempted have been re‑written and marks have been awarded afterwards."

4. We have to see if there is enough material on record in proof of the above charges. It is an admitted position that no detailed enquiry was held in this case. Instead the Authorised Officer chose to follow the short cut procedure laid down in rule 5(3) of the said rules. Accordingly apart from the show‑cause notice served on the appellant as many as seven documents were also supplied to him. The details of the documents furnished to the appellant are as under:‑ "The following relevant documents photo copies comprising of 10 (ten) pages are sent herewith. (1) The decision of the DAS. Committee held on 22‑11‑1981. (2) Observations of the Head Examiner. (3) Face Sheet of answer bearing Code No.3399 of English‑I. (4) Page No.8 of Code No.3399 answer book. (5) Face sheet of the answer book of Code No.10957 English‑I, (6) Face sheet of the answer book of Code No.3382. (7) Pages of the answer book Code No.3382 i.e. page Nos. 3, 5, 7, 8."

5. We would now like to discuss each charge separately. As for the first charge that the appellant did not keep the secrecy of the job assigned to him with the result that every candidate knew the series of the answer books which were given to him for assessment, it was admitted at the bar that before answer books are entrusted to Examiners, the seat numbers given on the answer books are substituted by secret series of numbers. Therefore, the question arose if the appellant leaked out the secret numbers which were substituted in place of original seat numbers. The appellant's reply to the above allegations was that the answer books sent to the examiners only indicate the secret numbers with the other details about the names and original numbers of the candidates. He further stated that the original numbers are maintained with Chairman or Controller of the Board, which cannot be disclosed excepting by way of leakage done at the Level of the Board. Keeping the appellant's above reply in view, we find absolutely no evidence to prove how the appellant managed to obtain the original numbers corresponding to secret numbers shown on the answer books. There is no material on record to show that necessary information with regard to original numbers was supplied to the appellant nor is there any evidence to prove that he, in his turn, conveyed such information to other persons so that they came to know about secret numbers. Even the documents reproduced above do not throw any light on the above charge.

6. Coming to the second charge that the answer books which were already marked, dropped /cancelled and signed by the candidates and invigilators were assessed and awarded higher marks, we find that though there is no oral evidence to prove this charge, reliance has been placed on the documents at S.Nos. 3 to 7 herein above. We have minutely examined the said documents, from which only the documents bearing Code numbers 3399 (Question 2) and Code No.3382 (question 4) are relevant. It appears from the above answer books that the said questions were first dropped but subsequently the words drop/cancel were scored off and as such they were assessed. In this connection we may refer to the appellant's own admission contained in his appeal dated 16‑1‑1982 preferred to the Chairman of the Board, which he has appended with the memo of present appeal. The relevant portion of his admissions reads as under: "Sir, I have assessed the doubtful and intricated answer copies and gave them marks in confusion it was only benefit of doubt even head examiner agreed. I admit that this is my error and definitely I should not have assessed such doubtful copies and should have sent back to the Board's authorities with the examiner's note. My dear sir, you know the errors and mistakes are always appended with the human being, after all I am human being and mistakes are always incidents and accidents but are not done deliberately. Sir, I am very much repentant about this error‑particularly I invective and reprehend my own entity. Sir due to this mistake I have not only lost my mental peace but I am harassed and worried about my life and prestige and my future."

7. However, as against his above admissions, the plea taken by the appellant in his reply to the show‑cause notice was that he assessed the answers which there were dropped or cancelled because there were no specific instructions from the Board or the Head Examiner against the assessment of such answers. This plea being inconsistent with his earlier stand taken before the Board was obviously after thought. Therefore, we are not impressed by his such explanation. After taking into consideration the entire material as discussed above, we are of the view that the second charge is proved against the appellant. The third charge against the appellant, as given in the show‑cause notice is that he awarded maximum marks to the undeserving candidates on their demands. In support of this allegation the department has referred us to the documents known as face‑sheets of the answer books bearing Code numbers 3399, 10957 and 3382. From these face‑sheets it is clear that the Head Examiner on random assessment of the answer books and reduced the number of marks allocated by the appellant. Therefore, the argument was that. the appellant assigned the marks which the candidates did not deserve. It would appear from the answer book carrying Code No.3399 that though the appellant gave 69 marks, the Head Examiner reduced that number to 64 marks. Similarly the answer book carrying Code No.1957 shows that as against 66 marks assigned by appellant the Head Examiner gave 51 marks. Again from the answer book bearing Code No.8382 it is clear that the Head Examiner gave 52 marks whereas the appellant allocated 69 marks.

8. In our opinion the above difference of marks given by the appellant and Head Examiner does not necessarily prove the favouritism) displayed by the appellant. The assessment of answer books depends upon the calibre and wisdom of the individual Examiner. A number of elements such as level of intelligence, extent of study and length of experience combine to constitute the examiner's wisdom. Since these elements vary from individual to individual, their sum‑total namely the wisdom cannot be equal in all individuals. Therefore, the assessment of answer books made by one Examiner which, as pointed out above, depends on how he appreciates the answers in view of his wisdom, will not fetch the same number of marks if the said answer books are assessed by another examiner. There was bound to be difference in marks. Accordingly we are not prepared to accept such difference in marks as a criterian for proving the charge of favouritism. Since there is no other evidence excepting what has been stated above, we are constrained to hold that the charge No.3 is also not proved.

9. The last charge that has been brought out against the appellant is that he allowed the candidates to re‑write on the blank pages and been the questions already attempted had been rewritten and marks had awarded afterwards. The appellant's explanation in this regard is that in view of strict secrecy maintained about the numbers and names of the candidates it was not possible for the examiners to contact them and, therefore, the question of allowing them to re‑write the answers already attempted by them did not arise. According to him the statements of the candidates were recorded at two forums; one in the course of the enquiry held by the Board and another by the Anti‑corruption Department, where it was clearly stated by them that they did not know the appellant at all nor had he met them at any time. The appellant further explains that it was not unusual for the candidates to have re‑written some of the answers already attempted by them, in a better way and cancelled their earlier answers with a view to secure more marks. In support of his explanation he has also referred to the instruction No.11 of the instructions issued to the Examiner by the Board Authorities. Thus, the appellant has made categorical refutation of his charge. It appears to us that the above explanation furnished by the appellant is not far from convincing. It appeals to a reasonable mind. Merely because some of the candidates have re‑written the answers already attempted by them does not prove that the appellant had allowed them the facility of rewriting the answers. It was submitted by the learned Government Counsel that if two answers were compared it would be seen that the answer which was rewritten was far superior not only with regard to spellings but also the language wise. Despite such difference between the two answers, it would not automatically prove that the appellant had allowed the candidates to re‑write the subsequent answer. May be the candidates had re‑attempted the same answers on their own. Also the possibility cannot be ruled out that they might have resorted to cheating or other deceitful means. Even if doubt is entertained as to the involvement of the appellant in this exercise, yet the appellant cannot be punished on the basis of doubt nor any such suspicion can be substituted for the solid proof of the charge. It is not disputed that sometimes candidates do re‑write the same answer in a better language. Therefore, unless there is positive evidence to indicate that the appellant had allowed the candidates to rewrite the answers already attempted by them, he cannot be held liable for such charge. We are of the view that the Department has also failed to prove this charge against the appellant. In view of above discussion, the only charge which has been proved against the appellant is charge No.2. Even as regards this charge the explanation given by the appellant cannot be dismissed as implausible. Either he had assessed the cancelled answers deliberately and with bad intention to favour the candidates or as he has explained, he had done it in total confusion. In this connection we also cannot ignore the fact that the cancelled answers assessed by the appellant were admittedly re‑assessed by the Head Examiner who had even given less number of marks. Moreover, when the learned Government counsel was called upon to show any rule which prohibits the assessment of the cancelled answers particularly when the words drop/cancel was scored off he was unable to do so. However, in the middle of arguments the said learned Government counsel tried to seek adjournment in order to search for any such rule. We did not think fit to accede to his request to adjournment on such ground, when the learned Government counsel himself was not sure if any such rule ever existed. Assuming that such did exist, still the appellant's explanation, as pointed out above, that he had assessed the cancelled answers in total confusion had to be considered with a pinch of salt. In any case we have already held that his charge (charge No.2) stand proved against the appellant.

10. The only question that has been agitating our minds is whether the extreme penalty of compulsory retirement is commensurate with the said proved charge. We have given our due consideration to this aspect of the case. The appellant is a young officer and has still a long way to go in his life. He has admitted his mistake which, as he has explained, he has committed as an erring human being and not' deliberately. As held earlier such possibility cannot be altogether I ruled out. Taking all the circumstances of the case into consideration we are of the view that the punishment awarded to the appellant was for all the four charges made against him. Now that only one charge: charge No.2 is held to have been proved against him the penalty of compulsory retirement would be too severe when compared to the gravity of that solitary charge. Accordingly we reduce the penalty from compulsory retirement to that of withholding of promotion for three years when it would become due to the appellant. For above reasons, subject to the modification in the penalty as stated above, the appeal is dismissed, with no order as to costs. Given under order hands and the Seal of this Tribunal, on this 28th day of July, 1987 at Karachi. A.A/138/Sr.S?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.