1988 PLP 700 (MLD)

"From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisions after or post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the presence of any express words in the enactment giving such power excluding the application 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 a given case. "What these principles of natural justice arc it is not possible to lay down with any exactness, for, they have been variously defined in various case, as was pointed out by the Judicial Committee in the case of the University of Ceylon v. Fernando. Tuker, L.J., said in Russel v. Duke of Norfolk "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 against him, he should he given a fair opportunity to make any relevant statement putting toward 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 I, 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 tile 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 has 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 in institutions or other institutions or departments where the maintenance of discipline is essential for the orderly conduct of the institution or department 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 its 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. "We are not suggesting that either the authorities of the University or the Provost who reported against the respondent did so with any ulterior motive nor is their good faith in question here but we are not satisfied that the University in so acting upon the solitary report of only one of the teachers concerned without giving the respondent any opportunity to put forward his own point of view or to submit any explanation acted in a manner which can be said to have reasonably excluded all possibilities of any honest mistake having been made. We are therefore in agreement with the High Court that the order of the University must be set aside and the University should be directed to act in the manner indicated above if it is still of the view that action should be taken against the respondent. "We are not impressed by the argument that such interference by Courts of law with orders passed by educational institutions in the interests of maintenance of discipline would defeat the very purpose for which these institutions exist or that it would stultify the powers of the authorities in charge of educational institutions or prevent them from taking any action against students' misconduct. The Universities and educational institutions generally are armed with abundant powers of disciplinary action against the recalcitrant students and the Courts are, in no way, minded to deprive them of their powers but all that they are entitled to insist upon in the interest of fairness is that the minimum requirements of fairness must be observed by them before such action is taken, for, it is equally important to remember that unfair action may cause greater harm to the prestige of the heads of educational institutions who are expected to be in loco parentis to the students and may seriously undermine the authority which they claim to possess over the students placed in their charge".

8. Samar Pervaiz secured admission to the King Edward Medical College, Lahore, in the M.B.B.S., course on the basis of having obtained 643 marks in the Intermediate examination held by the Board of Intermediate and Secondary Education, Lahore, in 1967. On verification from the Board, the College authorities came to know that the detailed marks certificate and the result card submitted by Samar Pervaiz were not genuine. They learnt from the Board that in reality he had secured 530 marks which had been inflated to 643 marks by tampering with his result sheet. The College as well as the Board authorities started disciplinary action against him. He was asked to show cause why his name should not be struck off from the college rolls because with 530 marks he would have had no chance of admission to the college. He received a communication from the Board directing him to surrender his result card and detailed marks certificate. He wrote to the Board and to the College authorities denying the allegations against him but the Board did not agree with him. On the 8th January, 1970, he was served with a notice by the Board to show cause why action should not be taken against him under rule 15(6), (11) and (12) of the Board Calendar as he had by approaching and influencing the employees of the Board managed to get his marks m the examination illegally and fraudulently increased. In his reply to the Board submitted on the 19th January, 1970, he controverted all the allegations levelled against him. He solicited personal hearing and permission to engage a counsel to defend his case. He was informed that there was no provision in the rules for engagement of a counsel. He appeared before the Committee of the Board and stated m writing that he did not want to add to what he had said in his written reply. No witnesses were produced or examined in support of the charge. In the result he was disqualified from appearing at seven examinations of the Board from September, 1966, to 1969. In appeal against the order of dismissal of his writ petition impugning the legality of the order of the Board the Supreme Court found that there was no evidence to connect him with the tampering of the University records resulting in inflation of his marks and that the Board's decision rested on mere suspicion. Referring to the basic requirements of acting in good faith in conformity with the principles of natural justice laid down in Zakir Ahmed's case quoted in extenso above the Supreme Court observed as follows:‑‑ "It is true that domestic Tribunals like a University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial, and while these can, consistently with the demands of justice, be ignored, it does not, by any means, follow that such domestic forums, while dealing with valuable rights and privileges of an individual, can snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicions cannot take the place of proof. A Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence. In the present case, apart from the fact that the appellant's marks were increased by tampering with the records, and he is the beneficiary thereof, there is no evidence at all to connect him with bringing about that result. The mere fact that the marks had been inflated and the appellant stands to benefit from that circumstance may convincingly lead one to a conjectural hypothesis that this was done at his instance or with his connivance, but it is no more than a mere conjecture. On the plane of mere conjectures, one is left with the feeling that the appellant may be guilty or he may be innocent, and it is dangerous to convict a man and rob him of his rights when the probabilities are equally balanced either way. It is also possibly true that no positive evidence could have been adduced to prove the appellant's guilt in manipulating his result by forging the records and the matter remains in the realm of inferences. If the facts were to yield the only irresistible inference that the appellant alone and none else on his side was responsible for this tampering and that it was done with his knowledge and connivance, it would not have been difficult to agree with the learned Judges of the High Court, but here, as already pointed out above, other inferences are legitimately deducible, which leave the appellant's guilt in the matter clouded in doubt".

9. Malik Abdul Majid was alleged to have been caught while copying answer to certain question from a piece of paper which is said to be in his possession while appearing in the BA., supplementary examination of the University of the Punjab held in 1967. He was alleged to have confessed before the Superintendent of examination center and to have given in writing that he had in his possession the piece of paper from which he had been copying. The Superintendent after taking the statements of the invigilator and the Deputy Superintendent sent his report to the University authorities for taking action against Malik Abdul Majid. He denied the charge of copying levelled by the University against him and requested for production of the Superintendent and his staff for cross‑examining them so as to elicit truth. However; his request in this behalf was not acceded to by the Disciplinary Committee which disqualified him for three years from taking examination. His appeal to the Vice‑Chancellor having borne no fruit he invoked the writ jurisdiction of this Court. He complained that he had been condemned unheard in so far as the statements of the Superintendent and other supervisory staff, who had been seriously against him, were recorded in his absence and he had been given no opportunity to test their correctness by subjecting them to cross‑examination. He contended that political pressure of his father's opponents had resulted in setting up a false charge against him. To prove the falsity of the charge he filed attested affidavits of three of the invigilators at the examination center stating that his confession had been obtained by the Superintendent under duress and that they had never seen him copying. This Court formed the view that by not informing him of the evidence that was being used against him for the purpose of finding him guilty and by not affording him any opportunity to cross‑examine such witnesses the Committee had transgressed the basic and essential requirements of natural justice. As regards the appellate order the remarks of the Court were that the petitioner had not even been heard by the Vice‑Chancellor. The petition was accepted and the impugned order of the University authorities was declared to be without lawful authority and of no legal effect.

10. The learned counsel for the respondents has drawn attention to the penultimate paragraph of the judgment of the Supreme Court Disciplinary Committee of the University of the Punjab, Lahore v. Malik Abdul Majid 197 Law Notes 265 in appeal preferred by the University authorities against the decision of the High Court wherein the Supreme Court dismissing the appeal on the ground that it had become infructuous observed that the question raised in the case, namely, whether on the facts and circumstances of the case the Disciplinary Committee or the Vice‑Chancellor was under any obligation to summon the supervisory staff for cross‑examination and whether by not affording an opportunity to the respondent to cross‑examine the said witnesses the principles of natural justice had been violated, could be decided in any other appropriate case when brought before it as a live issue but it needed to be pointed out that the dismissal of the appeal did not mean that the Court was approving of the principle laid down by the High Court in the impugned judgment which seemed to run counter to the principle already laid down by the Court in the case of University of Dacca v. Zakir Ahmad.

11. Rahat Siddiqui, the appellant in the case Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore (1977 S C M R 213), appeared at the Secondary School Certificate (annual examination) held in March‑April, 1972, by the Board of Intermediate and Secondary Education, Lahore. The result of examination was published in the Board Gazette in July, 1972, showing that he had secured 565 marks. He was a bit surprised to find in the detailed marks certificate that he had obtained 55 out of 100 marks in Social Studies and 54 out . of 100 marks in Physics as these marks were below his expectation. He applied to the Board in August, 1972, for rechecking of his answer books of those papers. The Board found that marks on the answer book of Social Studies paper had been inflated from 45 to 70 and although the original award list sent on the 25th May, 1972, as well as its counterfoil mentioning 45 marks had not been cancelled, the revised award list sent on the 11th June 1972, and its counterfoil duly signed by the sub‑examiner and head‑examiner mentioned 70 marks. The, sub‑examiner and head‑examiner were required to explain the discrepancies and it was then disclosed that the head examiner had sent for the sub‑examiner and asked the latter to revise the answer of the appellant to give marks on answer to question No. 9 of the said paper. It was further found that the original answer to question No. 9 contained in a continuation sheet upon which the sub‑examiner had given only two marks had been removed and replaced by another answer to question No. 9 written in the hand of the appellant and upon which the sub‑examiner had given 13 marks. All these were found to have been done in collusion with the appellant and the two examiners. The appellant was accordingly charged on the 20th October, 1972, for getting his marks in Social Studies paper enhanced from 45 to 70 thereby committing violation of rule 8 (iv) of the Board Rules, 1965. He was duly informed about the allegations against him and adequate opportunity was given to him to meet them. lie was personally present before the Disciplinary Committee and later before; the Jury of Appeal. The statements of the two examiners were produced before both the bodies and, therefore, it was not considered believable that he was ignorant of these statements. In these circumstances, keeping in view the observations made in Zakir Ahmad's case, the Supreme Court reached the conclusion that no prejudice had been caused to him and the penalty of disqualification from passing the annual examination held in March and April, 1972, and debarring him from sitting in three following successive examinations was upheld.

12. Akthar Ali, the appellant in the case titled Akhtar Ali v. University of the Punjab (1979 S C M R 549), appeared in the M.B.,B.S., final examination of 1974 held in July, 1975, in the subject of Medicine. The declaration of his result was withheld by the University of the Punjab as he had not paid examination dues. However, in the notification allegedly issued by the University in the month of December, 1975, he and two of his colleagues were shown to have passed in the subject of Medicine. The Principal of the King Edward Medical College, Lahore, of which he was the student, inquired about the authenticity of the notification from the Controller of Examinations of the University as the signatures of the Controller appearing on the notification were not legible. The Controller informed the Principal that the notification was forged and that the result of Akhtar Ali had been withheld due to non‑payment of fees: When the Principal called him he showed his ignorance regarding forgery of the notification. The Principal felt satisfied with his explanation and asked the Controller of Examinations to declare his result. However, the University, authorities took a serious view of the matter and served him with a notice to show cause why action should not be taken against him for having state‑managed the issuance of the notification in which he was shown to have passed the examination. In reply to the show‑cause notice he submitted two written explanations, one in English dated the 4th January, 1977, and the other in Urdu dated the 1st February, 1977. The Disciplinary Committee of the University heard him in person on two occasions on the 24th and 29th January, 1977, and adjourned the case to the 1st February, 1977, for final consideration. On the last mentioned date the Committee after consideration of his case held him guilty under Regulation 13 of the Regulations relating to the conduct of examinations and imposed upon him the penalty of disqualification to appear in examination for three years.

13. He challenged the legality of the order of the Committee in writ petition which was dismissed by this Court on the 19th October, 1977. In appeal before the Supreme Court it was noticed that he had taken different stands in his defence in the two explanations that he had submitted to the Committee. In the first explanation he tried to establish his innocence by saying that he had come to know of issuance of forged notification in the month of March, 1976 when he had received a letter from the Principal and that he had been altogether stranger to Mr. Shabbir Ahmad Khan who had also been declared successful in the examination and who according to him had already been involved in a forgery case and who was the owner of a cinema and had the means to get involved in undesirable activities. In the second explanation he committed a complete volte face in regard to his previous assertion to the effect that he had come to know of the issuance of the forged notification in the month of March, 1976, saying that when he had visited the college on the 30111 January, 1976, he had come to know of the said notification and consequently tic had contacted the head clerk of the College and had told him that he had nothing to do with that notification and in that behalf had claimed to face an inquiry in order to satisfy the authorities of his innocence, that subsequently lie had met the Controller of Examinations of the University who had informed him that a letter had already been written to the Principal of the college indicating therein that inquiry be made into the matter and when the said letter had been received in the college he had again contacted the office and had been told that when the Principal would express his desire to see him he would be informed in writing in that behalf and thereafter he had deposited the balance fees with the University. By keeping the two explanations in juxtaposition with each other the Supreme Court noted the significant and material contradictions therein, namely, whereas in the first explanation the appellant had asserted to have come to know of the issuance of forged notification in the month of March, 1976, and that loo after he had received letter from the Principal, in the subsequent explanation what he had alleged was that he had come to know of the said notification on the 13th January, 1976, when he had visited the college and had graphically pinpointed all the steps taken by him in his efforts to establish his innocence of which he had given no indication in his first explanation. Further it was on the record that when he appeared before the Committee on the 24th January, 1977, he had informed the Committee that he could not properly defend himself due to nervousness and consequently sought permission to read out a note which he had jotted down on various pieces of paper. The Committee not only allowed him to do so but asked him if he would file the said note on the record of the case in his defence and he replied that he would do so. The Committee adjourned the case to the 29th January, 1977, but he failed to place the note on the record with the result that the Committee settled down to consider his case and found him guilty. In these circumstances, as observed by the Supreme Court, the decision of the Committee could not be said to be based on no evidence. The Committee had before it his two explanations to which he had contradicted himself in material terms as also his conduct re depositing of fees on the 8th March, 1976, which fees he ought not to have deposited after having come to know of the forged notification and again not honouring his undertaking to file on record his typed note in his defence. Applying the law laid down in ‑the University of Dacca v. Zakir Ahmad to the given situation the Supreme Court was of the view that the Disciplinary Committee had afforded adequate opportunity to him to defend himself. The Committee's decision of holding him guilty for his complicity in the issuance of iorged notification in the circumstances was not displaced.

14. Shaukat Ali in Shaukat Ali v. Controller of Examinations, University of the Punjab, Lahore (1981 S C M R 364), while appearing in the Political Science paper A of the B.A., first annual examination of the University of the Punjab, held on the 11th May, 1976, from Sheikhupura centre, was found by the invigilator on duty copying from certain objectionable material. When the invigilator tried to recover the material from him he was said to have torn it out into pieces and thrown it away. Fie tried to have a scuffle with the invigilator and created disturbance in the examination hall by misbehaving with the members of the supervisory staff. The Superintendent of the examination centre reported the matter to the University. For his misconduct lie was served with a charge‑sheet by the Disciplinary Committee of the University and was called upon to explain his position. In his reply to the charge lie not only denied the various allegations made against him but took the stand that the entire case had been engineered against him by the Deputy Superintendent, Muhammad Tufail, due to enmity and stated that in that behalf he had twice met the Controller of Examinations on the 8th and 15th May, 1976, during the course of which meeting he had not only informed him that the Deputy Superintendent had been inimical to him but also filed written application that he might be shifted to another centre for taking the examination. When called he appeared before the Disciplinary Committee on the 19th August, 1976, and was heard in defence. However, the Committee was not satisfied with his explanation and consequently by its order of the 16th September, 1976, informed him that he had been disqualified for using unfair means for a period of three years under Regulations 13, 18 (3) of the University Calendar, Volume

1. Feeling aggrieved lie challenged the action of the Committee through writ petition before this Court. Denying that any objectionable material had been recovered from his possession in the examination centre and asserting that the case had been manipulated against him by Muhammad Tufail, Deputy Superintendent, who bore animosity towards him, he contended that the impugned action against him had been taken by the University on the basis of no evidence and that he had not been afforded a reasonable opportunity to defend himself. The writ petition was dismissed. He took the matter in appeal to the Supreme Court where it was argued on his behalf that reasonable opportunity of showing cause appearing in rule 20(a) of the Rules relating to the conduct of the examinations of the University would mean that the evidence against him had to be recorded in his presence and lie was entitled to cross‑examine the witnesses who would give evidence against him and in any event he was entitled to cross‑examine Muhammad Tufail for whose production he had made request in writing to the Controller of Examinations. When the Supreme Court found that except for his own ipse dixit there was nothing on the record to support his allegations against Muhammad Tufail nor there was any material to show that he had made any request before tile Disciplinary Committee that Muhammad Tufail should be made available to him for cross‑examination and that the request had been, turned down, his counsel had to concede that as regards Muhammad Tufail he was unable to press his objection. The Supreme Court did not accept his contention that it was a case of no evidence against him because the report of the Superintendent giving the description of the incident was before the Committee to formulate its decision. In these circumstances the Court thought that as the law enunciated in Zakir Ahmad's case stood he had been given fair opportunity of defending himself.

15. The facts of the case reported as Alimau and others v. Vice‑Chancellor, University of Engineering and Technology (P L D 1981 S C 464), are that on the 9th December, 1980, a clash took place between Ahmad and his colleagues, who were students of the University of Engineering and Technology, Lahore, and constituted one group, and the members of another group of students and both the parties suffered injuries. A case for alleged commission of offences punishable under sections 14S and 307 of the Pakistan Penal Code was registered against Ahmad and others and they were arrested by the police but were later allowed bail by a Magistrate. The Vice‑Chancellor of the University was informed by the police about the case and arrest of the students on the 11th December, 1980. The Discipline Committee of the. University suspended the students involved in the undesirable incident from the rolls, expelled them from the hostel and directed them to appear before the Committee for explaining their conduct on the 28th December, 1980, at 10‑30 a.m. This order/notice was put up on all the notice boards of the University. Ahmad and his party follows became aware of the notice requiring them to appear before the Discipline Committee on the 28th December, 1980, and contacted its Secretary, a Professor of the University, who acted as Director of Students Affairs, but did not appear before the Discipline Committee in response to the notice. The Committee, by its order dated the 24th January, 1981, found them to be guilty of gross act of indiscipline and on account of involvement in the aforementioned criminal case expelled them from the University. On appeal their punishment was reduced to rustication for one year and fine of Rs. 500 each. The students of the rival group were also penalised. Having failed to assail successfully the legality of the action of the Discipline Committee before this Court in writ jurisdiction they approached in appeal, the Supreme Court where they urged that they had not been afforded fair opportunity of showing cause as no formal notice for appearance had been served upon them nor any charge had been framed against them and further that no evidence had been recorded in their presence. It was noticed that the petitioner had become aware of the allegations against them alter the final notice had been put up on the notice board of the University and if thereafter they had, for reasons best known to them, intentionally failed to appear before the Discipline Committee and thus deprived themselves of availing of opportunity to defend themselves they could not be permitted to say that they had not been given fair opportunity of showing cause. The Supreme Court observed that the law as declared in Zakir Ahmad's case did not require any formal notice to be served on the petitioners; it was enough if they had become aware of the proceedings which were conducted by the Discipline Committee. The Supreme Court laid down the following minimum requirements which it considered to have been met with in the case‑ (!) the person concerned must be made aware of the nature of the allegations against him; (ii) he should be given reasonable opportunity to make any relevant statement putting forward his own case; and (iii) he should be able through such a statement to correct or controvert any relevant statement brought forward to his prejudice. (iv) the statement can be oral or written and it can also be made during discussion or confrontation and/or questioning by the appropriate authority.

16. In the case of Masood Pervaiz v. Disciplinary Committee, University of the Punjab, Lahore (1982 S C M R l084), as stated at the Bar by the learned counsel for the respondents, the incriminating material against Masood Pervaiz and others found by the Disciplinary Committee was that the number of lines on the sheets of the substituted answer books differed from the number of lines on the sheets of the original answer books and this fact led the Committee to lay the blame at the door of the delinquent students and accordingly punish them.

17. The above analysis of the facts and the rule laid down by the Supreme Court in the cases cited by the learned counsel for the respondents would lead to the inevitable inference that the criteria set down by the Supreme Court in Zakir Ahmad's case for judging the fairness of the opportunity given to a person before condemning him remain unchanged and have been consistently accepted as norms for determining whether a person has been given fair opportunity of defence and whether there has been compliance of the principles of natural justice in his case. The authorities responsible for taking disciplinary action are supposed to act on some material spelling out guilt of the person before proceeding to condemn and punish him and as minimum requirements of fairness he should be given reasonable opportunity to make any relevant statement putting forward his case and should be able through such statement to correct or controvert any relevant statement brought forward to his prejudice. It is regrettable to note that in the instant case despite the fact that the petitioner had all along insisted that the Disciplinary Committee should specify or name the person with whom he was alleged to be in league the Committee did not provide him with the desired information although inquiry had already been initiated against the University staff (which inquiry has ended in holding Malik Tahfeef to be guilty of the commission of mischief) and the Committee would certainly be aware of the members of the staff involved in the inquiry and thus reduced him to a position from where he was not able to controvert the presumption that the Committee had raised against him. In these circumstances the petitioner could not be said to have been given fair opportunity to defend himself. The principles of natural justice could not be said to have been fully met in his case before condemning him. Again as the perusal of the impugned order of the Committee discloses it considered the mere fact of enhancing of marks in the result sheet to be sufficient to draw inference against the petitioner that he was responsible for getting the inflated marks entered in the result sheet. Such an inference just on the basis of the entry in the result sheet was hardly justifiable. In these circumstances the impugned action of the Disciplinary Committee cannot stand the test of scrutiny by this Court and is accordingly declared to be without lawful authority and of no legal effect. The petition is accepted with costs. Petition accepted.