P L D 1984 Lahore 17 (PLP)

This writ petition calls in question the order, dated 3‑7‑1983 of the Discipline Committee of the Board of Intermediate and Secondary Education, Lahore, and the order, dated 15‑9‑1983 of the Committee of Appeals, whereby the petitioner was disqualified from passing the Secondary School Certificate Spring Examination, 1983, as well as the Autumn Examination; for having found in his possession objectionable material while taking examination of Physics.

2. A number of contentions have been raised in this petition. It is, however, not necessary to deal with the respective contentions of the learned counsel for the parties, as the writ petition can be conveniently disposed of on a short legal plain.

3. The controversy raised in this petition turns on the interpretation of rule 6'6 of the Board of Intermediate and Secondary Education, Lahore, Rules (hereinafter called the Rules), which reads thus :‑ "6'

6. If a candidate is found having in his possession or accessible to him in the examination centre, papers, books or notes, which might possibly be of assistance to him in solving any part of the question- paper, he shall be disqualified from‑ (i) passing that particular examination if the offence is inadvertent, and (ii) passing that particular examination and appearing in one immediate following examination (annual or supplementary). If the offence is intentional."

4. A bare perusal of rule 6'6 would show that it specifies two types of penalties. If the "offence" is inadvertent, rule 6.6 (i) applies. If it is intentional, rule 6'6 (ii) is attracted. The Board has no power to alter these penalties. The word "offence" denotes a thing punishable under the Pakistan Penal Code or any special or local law. Taking the phraseology used in this Rule, the expression "offence" is not in the nature of a criminal offence in the commission of which the element of mens rea is implied. Here the word "offence" is used in the sense of misconduct by committing a breach of rule 6'6 by a candidate in the examination centre. The rationable behind this Rule, being deterrent in nature, appears to be that if on the basis of the material placed before the Discipline Committee, it is satisfied that a candidate intentionally committed a breach of the Rule, a severe penalty as contemplated by rule 6'6 (ii) is attracted. If mens rea is lacking and the thin be only done incidentally or inadvertently a lesser penalty as visualized by rule 6'6 (i) is attracted. This rule being penal in. nature, keeping in view the well‑settled principle of interpretation has to be construed strictly.

5. In the instant case the penalty has been imposed under rule 6'6 (ii), notwithstanding the fact that the petitioner was not served with any show -cause notice that he committed the "offence" intentionally". This was no the allegation against him and no positive finding has been recorded by the Discipline Committee or the Committee of Appeals as to whether All "offence" committed by the petitioner was "intentional" or "inadvertent". A penalty can be imposed upon a candidate only in accordance with a prescribed procedure on fulfillment of the conditions precedent laid down in the Rules by following the norms of natural justice. The petitioner, therefore, cannot be condemned unheard for "intentionally" committing the "offence" for which he was never charged. The impugned penalty being violative of the principle of natural justice is not sustainable.

6. Learned counsel for the respondents submitted that the impugned penalty has since been acted upon no useful purpose would be achieved by issuing the writ. The submission has no force. The petitioner can be deprived of his valuable right to demand declaration of his result on the basis of examination taken if the impugned penalty is declared unlawful It is out of question to uphold the impugned penalty on the ground that it ha already been undergone and part of it, namely, disqualification for passing the Secondary School Certificate Spring Examination, 1983, is covered b rule 6'6 (i). In the exercise of constitutional jurisdiction, the Court does not sit in appeal over the actions of a domestic tribunal like the respondent Board and it cannot substitute the penalty for that of the Board. The impugned penalty is, therefore, liable to be struck down.

7. Let me now examine whether it is a fit case for remand to the Board for disposal afresh in accordance with law. It is not alleged that the peti tioner received any assistance in solving any part of the question‑paper, or attempted to do so on the basis of an objectionable piece of printed paper allegedly recovered from him. The petitioner has already undergone a punish ment of disqualification for appearing in the Autumn Examination conducted in 1983. I am, therefore, not inclined to remand. In view of the above, the impugned orders of the Board are hereby declared as without lawful authority and of no legal effect. The respondent Board is directed to declare the result of the petitioner forthwith. The writ petition is accepted but there shall be no order as to costs. M. Y. H. Petition accepted.