T L D 1993 Lahore 783 (PLP)

Through this Constitutional petition, the petitioner has assailed the legality of the decision of the Discipline Committee whereby she was disqualified for using unfair means in the B.A. (First Annual) Examination, 1991, for a period of 2 years under Regulation No.13 of the University Calendar (Vol. I). It was ordered that she would not be eligible to. re-appear in any University Examination earlier than First Annual Examination of 1993.

2. The facts stated in the writ petition are that the petitioner passed her Secondary School Examination in the high First Division, securing 537 out of 850 marks. She also passed her Intermediate Examination in the Second Division, securing 639 out of 1100 marks. Thereafter, she appeared in her BA (First Annual) Examination, 1991,as a regular student of Queen Mary College, Lahore under Roll No. 44828. On 8-&1991 she was taking her English W Paper, when one of the invigilators demanded a sum of Rs.1,000 for allowing the petitioner to use unfair means for solving the paper but she refused to yield to the same as she was fully prepared for the examination. Almost at the end of examination a checking team reached the centre. The invigilator complained to the team that the petitioner was copying from a printed paper. The petitioner denied the allegation but the member of the checking team made a report on the petitioner's script and signed it.

3. The petitioner received charge-sheet, dated 22-1-1992 from the respondent University containing the following allegations: "You appeared in the EA./BSc. 1st Annual Examination of 1991 under Roll No. 44828. On 8-6-1991, while you were taking examination in English Paper A, one photo copy of printed leaf bearing notes relevant to the syllabus/question paper was recovered from your possession." The petitioner sent her reply, in which she stated that on the demand of Rs.1,000 by the invigilator, she made a complaint to Miss Nusrat Ara, Centre Superintendent, who snubbed the invigilator. After the dispatch of the reply to the charge-sheet the petitioner did not receive any other intimation from the Discipline Committee. In the meanwhile, the petitioner received her result card from the University which showed that she had passed the examination, securing 422 out of 800 marks. However, subsequently she received the impugned order whereby she was disqualified for two years. She forwarded her appeal against the impugned order to the Vice-Chancellor of the Punjab University but the same was not decided. It may be mentioned that the petitioner's reply to the charge-sheet or the appeal made to the Vice Chancellor are not contained in the record produced by the respondents' learned counsel.

4. The petitionees learned counsel vehemently contends that the action taken against the petitioner was mala fide and illegal. She was condemned unheard because after the submission of her reply the Discipline Committee never sent any intimation to her about further proceedings which were conducted in her absence. He also submits that the solitary charge against the petitioner was that of "possession" of objectionable printed material but the action taken against her was on a different ground of actually "copying for solving question No.5 of the paper. The allegation contained in the charge sheet could at the most result in cancellation of the paper and not disqualification for two years. He further submits that even the allegation of possession of objectionable material by the petitioner was based on no evidence. On. the other hand, the learned counsel for the respondents submits that the petitioner did not avail of the alternate remedy' of filing an appeal before the Vice-Chancellor. Hence, this petition was incompetent. He submits that, as per report of the Centre Superintendent, the petitioner was found in possession of photo copy of one printed leaf from which she had copied. He adds that intimation about proceedings before the Discipline Committee was sent to the petitioner but she did not appear. Hence, the Committee had rightly disqualified her. -

5. The argument of the respondents' learned counsel that the petitioner cannot avail of the Constitutional remedy without first filing an appeal before the Vice-Chancellor, has no force. The remedy provided under Regulation 21 of Chapter 7 relating to Conduct of Examination does not appear to be an adequate alternate remedy. Regulation No.21 is reproduced for ready reference:

"

21. In the 'case of the alleged use of unfair means in connection with examination if, in the opinion of the Vice-Chancellor, facts have been brought to fight within 30 days of the receipt of the decision by the candidate which, had they been before the Committee, might have induced them to come to a decision other than the one arrived at, then the Vice-Chancellor may order that such facts be reduced to writing and placed before, the Committee. The. Committee shall then reconsider the case. A unanimous decision of the Committee (if confirmed by the Vice- Chancellor ), shall be final. But in the event of a difference of opinion the case shall be referred to the Vice- Chancellor, who may either finally decide the case himself or refer it to the Syndicate for final decision as he thinks fit. The abovequoted Regulation merely leaves room for filing of a representation and not an appeal before the Vice-Chancellor because even on finding that there were certain facts which, if placed before the Discipline Committee, have induced it to arrive at a different decision, the Vice-Chancellor cannot himself finally decide the matter. He has to refer the case back to the Discipline Committee. If the Committee makes a unanimous decision and the same is confirmed by the Vice-Chancellor, then it becomes final. If the Committee is divided in its opinion, then the case has to be referred to the Vice-Chancellor who may either decide it himself or refer it to the Syndicate for final decision. Obviously, Regulation No.21 provides a lengthy procedure which need not necessarily be resorted to in all cases particularly the case like the present one in which the impugned order is clearly a nullity in the eye of law (as would reveal from the discussion which follows) and has already caused an irreparable loss to the petitioner by wasting two valuable years of her life. Therefore, the preliminary objection raised by the petitioner's learned counsel is rejected.

6. There is considerable force in the arguments raised by the petitioner's learned counsel. The Discipline Committee has taken action against the petitioner on the ground of 'copying' whereas the solitary charge against her was that of possession of one photo copy of printed leaf bearing notes relevant to the Syllabus/question paper. There is also serious doubt about. the fact whether the petitioner was at 'all found in possession of the photo copy of the leaf contained in the record of the respondents. The first report noted on the. answer book of the petitioner made by the Inspector or the Checking Team is to the following effect: "The printed leaves were recovered from under her A.B. (Miswer book)." Printed leaves would obviously mean the original printed leaves taken out from some book. However, what was actually forwarded to the Discipline Committee was one photo copy of-printed leaf. This glaring contradiction was neither explained by the Superintendent nor adverted to by the Discipline Committee. I also find two contradictory reports presumably made by the Centre Superintendent which are contained in the record produced by the learned counsel for the respondents. The first report reads as under:

Just below the said report there is the following report in the same hand writing:

These reports are also irreconcilable. In view of the above-noted contradictions, it was the bounden duty of the Discipline Committee to have sought the explanation of the Centre Superintendent and the Inspector who had made the above referred reports. Having failed to record the statements of the concerned officials in this respect, the Discipline Committee failed to perform its legal duty. Moreover, the fact that th-6 petitioner was not allowed to complete the answer to question No.5 and that the Inspector noted on the front page of the answer book that two printed leaves were recovered from under the answer book apparently gives an impression as if the petitioner was caught while copying. To the same strain is the finding of the Discipline Committee. It was observed in the order, "the Committee also noted that the candidate was detected by the Inspector Had it been so, then the statement of the petitioner/candidate ought to have been obtained immediately by the concerned Superintendent on the prescribed form pertaining to 'Unfair Means File". The said form is available on the record produced by the learned counsel for the respondents. Most of its columns are blank. The space meant for recording the statements of the informant and the candidate are also blank. The absence of the reports of the informant/Inspector or the petitioner lends support to the inference that the petitioner was not detected to be in possession of the objectionable material or copying therefrom. Moreover, the two printed papers said to have been recovered from the petitioner's possession, were not placed on the record. The photo copy of the printed leaf actually placed on the record right have been found under the seat of the petitioner and was held to have been recovered from her on mere conjectures. The charge-sheet does not contain the allegation that the photo copy of the printed leaf was lying under the petitioner's seat and that she had thrown it. Therefore, I conclude that there was no reliable material to hold that the photo copy of the printed leaf was recovered from the petitioner.

7. As mentioned above the Discipline Committee had approached the case with an entirely wrong angle. The allegation in the charge-sheet was that of "Possession" of objectionable photo copy of printed leaf but the Committee in its proceedings noted the nature of the charge as ",copying". Even in respect of the charge of "copying" the Committee appears to have arbitrarily hold that the petitioner had copied her answer to question No.5 from incriminating material verbatim. A careful scrutiny "of the petitioner's written answer in comparison with the photo copy of the leaf shows that there are a number of omissions and other differences which belie the conclusion of verbatim copying. No doubt, a number of sentences are the same as contained in the photo copy of the leaf but after reading the entire answer it appears more probable that, the petitioner had memorised the answer from some book and had attempted to reproduce the same. The following different between the contents of the photo copy of the printed leaf and the answer written by the petitioner to question No.5 are hote worthy-- (i) In the second line of the leaf the word 'the' occurs but the petitioner has written the word 'its'. (H) The second line ends with the word 'character' but after it, the petitioner has written, 'or hero'. (iii) In the 4th line after the word 'tragedy' the petitioner has written 'play' which is not contained in the photo copy of the leaf. (iv) Again in the 4th line, the leaf contains the words, 'it does end' but the petitioner has written, 'also ends'. (v) In the 7th line, after the word 'however the word, 'tragedy' is printed which is missing in the petitionees answer. (vi) Again in 7th line the words, 'An English critic' are printed in the leaf but the same are missing from the petitioner's answer. (vii) A part of line 7 and lines Nos. 8 to 10 of the leaf read as under: a tragedy is characterized by three main qualities, (i) a profound moral sense, (ii) the ability to fill the pathos in human suffering, and (iii) craftsmanship." The petitioner has instead written as under:- "there are three ingredients of tragedy (1) A profound "morel" sense. (2) Pathos. (3) Craftsmanship."

8. It is noteworthy that at two places the petitioner has written wrong spellings of the word "moral" by writing it as "morel". The above differences, if duly considered, lead an independent and unbiased mind to the irresistible conclusion that the petitioner had crammed the answer from some book and attempted to reproduce the same from her memory. At least, no reasonable mind can at all conclude that the petitioner had copied verbatim. The petitioner has a good academic record and her answer book fairly demonstrates that she had attempted the other questions as well through her own independent effort without the aid of the notorious 'Booti Mafia". In her reply (Annexure 'D') the petitioner had mentioned that one invigilator was receiving Rs.1,000 from the candidates for rendering help to them in the paper and that he also approached her for the said purpose but she declined to accept the offer. The possibility that on refusal of the petitioner to pay the invigilator for the purpose of copying, she was victimised with mala fide intentions, cannot be ruled out. Unfortunately, the malady of copying in the examination halls with the help of the invigilation staff has spread like a Cancer. Resultantly, the honest students having merit are suffering and being pushed back and dishonest students aided by the "Booti Mafia" are securing high positiof& and easily obtaining admissions in professional and other colleges. Therefore, generally the Courts are loath in interfering in the lawful actions taken by the University Authorities against the students found guilty of using unfair means in the examination halls. But in the facts and circumstances of the present case, the action taken against the petitioner cannot be sustained, being illegal, arbitrary and mala fide in law.

9. There is also weight in the argument of the petitioner's learned counsel that the petitioner was condemned unheard. After adjourning the case on 25-2-1992 due to the petitioner's illness, there is nothing to show that she was actually intimated about the next date of hearing. The record does contain a copy of the notice, dated 8-3-1992 sent to Shabanad Sherazi (instead of Shabana Sherazi) through registered post on 9-3-1992. Moreover, instead of Lajpat Road the address contains the words Lajpat Nagar. The possibility that due to the said errors, the notice never reached the petitioner cannot be ruled out. Thus the petitioner's claim that after dispatch of her reply to the charge sheet she never heard anything in the matter from the Discipline Committee, appears to be correct. Moreover, as discussed above, the charge-sheet contained the allegation of possession of objectionable material but the action taken against the petitioner was on the alleged ground of "copying". Hence, the action on the ground of "copying" was taken without affording any opportunity of being heard to the petitioner. Even if the allegation of possession of objectionable material as contained in the charge-sheet was proved, the petitioner's answer book in the concerned paper could have been canceled or she could have been disqualified from passing any examination that year as provided under Regulation 12(a) & (b) of the University Calendar which is reproduced below for ready reference:-

12. If it is found that a candidate has access to, or is in possession of papers, books or notes, which might possibly be of assistance to him: (a) But that his access to, or possession of such books, notes or papers was inadvertent, and was not mala fide, his answer books shall be cancelled, as a disciplinary measure without any implication of moral turpitude. (b) In other cases of possession be disqualified from passing any examination that year." It is unfortunate that the Discipline Committee disqualified the petitioner for two years under Regulation No.13 without issuing any charge-sheet to her on the ground of "copying". Thus apart from putting the petitioner to humiliation E and causing mental torture to her, the Committee is responsible for wasting two valuable years of her life as she could neither appear in the subsequent examinations nor continue her higher studies.

10. For the foregoing discussion, I accept this petition with cost, declare the impugned order to be arbitrary, mala fide in law, without lawful authority and of no legal effect. It is further declared that the petitioner has passed her B.A. Examination as per the Pass Result Intimation (Annexure'F) sent to her by the University Authorities. AA./S-344/L Petition accepted.