P L D 2005 Supreme Court 443 (PLP)

6. Continuation sheets used without signatures also show that some of the supervisory staff was involved in providing them without signatures of the proper person and one of the candidates did not sign attendance sheets which is mandatory.

7. The use of the extra sheets without the signature come to light only when the examiners while making the papers pointed out that unfair means have‑been by the candidates."

6. It cannot be said that the decision of the Review Committee was in any way arbitrary or was not based on relevant material. The Review Committee formed an honest opinion that it was humanely impossible for the respondents to write ditto answers to the same questions using same sentences, contents and material word by word without there being slightest difference or variation of sentences, grammar and words. Even the spelling mistakes in Biology A‑B papers of the respondents were the same. Similar was the position of their papers of Chemistry and Urdu A and B. The extra sheets were used by the respondents which did not bear the signatures of the authorized officer nor the same were shown to have been duly issued to them by the officer concerned. The decision to disqualify the respondents was taken by the appellants after providing them reasonable and fair opportunity of hearing and by taking their written defence into consideration.

7. In the matter of maintenance of internal discipline of students, the examining bodies are not required to follow the rules of procedure and evidence, like that of a criminal Court. Even the examination of the witnesses in the presence of the students may not be feasible or practicable in certain eventualities. The bodies like the Boards of Intermediate and Secondary Education are required to act fairly, justly and reasonably in the cases of disciplinary action against the candidates who appear in the examinations. The strict application of rules of natural justice is not insisted upon in such cases. As long as the candidate is given fair and reasonable opportunity of defending his case then in the absence of any proof of malice or arbitrariness on the part of authorities concerned, the High Court is not expected to substitute the findings of fact recorded by the domestic tribunals based on the relevant material on record. The High Court was not correct in observing that if some unfair means were used the same were to be pointed out at the time of examination. Any negligence or collusion by the officials of the Board could not provide a valid justification for condoning the use of unfair means by the respondents.

8. In the case of Ahmed and 3 others (supra) it was held that neither a student who was charged for misconduct or indiscipline was to be treated as ordinary criminal nor the authorities concerned were to act in the robes of the police prosecuting agency. In the case of Imran Ahmed Khan v. Province of Punjab through Secretary, Health and others (Civil Petition No. 1175/1997 decided by this Court on 16‑7‑1998), the following observations were:-- "But the question is, are we going to condone fraud each time and encourage foulplay? Society has already degenerated to such a low level that we are not far from touching the bottom. If lenient view is taken by the Courts each time, it will only encourage rather than discourage the wrong‑doer. Although, it has been pointed out by the learned counsel for the petitioner that the petitioner has already completed major part of his curriculum and any break therein at this stage is bound to cause a major set‑back to the petitioner, as he would lose four years of his academic career, but we cannot help observing in this regard that the entire blame for this rests on no one else but the petitioner himself. In Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore (1977 SCMR 213), the Disciplinary Committee afforded proper opportunity of hearing to a candidate who was fully aware of the allegation of using unfair means. He was also informed about the allegations against him. The principles of natural justice were held to have been complied with. In Masood Pervaiz v. The Disciplinary Committee, University of the Punjab, Lahore (1982 SCMR 1084), some answer sheets were smuggled into the original answer book of the student by substituting genuine sheets. This Court took the view that it raised a strong presumption against the candidate. It was further observed that quantum of material for reaching finding of fact was, within the exclusive field of the authorities concerned which had afforded personal hearing to the candidate who had submitted written explanation. A somewhat similar view was taken in the cases of Nasir Saeed v. Federal Board of Intermediate and Secondary Education, Islamabad and 2 others (1998 SCMR 710), University of the Punjab v. Gulfam Akhtar (1987 SCMR 706), Board of Intermediate and Secondary Education and 2 others v. Umar Asif Malik (1999 SCMR 1583) and Shoukat Ali v. Controller of Examinations, University of the Punjab, Lahore and another (1981 SCMR 364). In our view, the impugned judgment of the High Court is not sustainable on factual plane or on legal grounds.

9. For the foregoing reasons, this appeal is allowed, the impugned judgment of the High Court of Balochistan is set aside. Consequently, the Constitution Petition No.27 of 2002 of the respondents shall stand dismissed. No order as to costs: MUHAMAD NAWAZ ABBASI, J.‑‑‑I have gone through the judgment rendered by my learned brother, Faqir Muhammad Khokhar, J. but with utmost respect, I am unable to agree to allow this appeal.

2. The respondents were proceeded against by Board of Intermediate and Secondary Education, Quetta, appellant herein for disciplinary action for the charges (a) unauthorized change of centre (b) use of extra sheets, the number, of which were not entered in the register and (c) the use of unfair means in solving the papers in F. Sc. Annual Examination 2000. The Disciplinary Action Committee found them guilty of the charges and" in pursuance thereof, the appellant vide order dated 2‑3‑2001 cancelled their result but permitted them to appear in the Annual Examination 2001. The appeal and the review filed by the respondents before the appellate Committee and Review Committee, remained unsuccessful and they invoked the Constitutional jurisdiction of the High Court of Baluchistan, Quetta, in the matter. The High Court allowed their writ petition and remanded the case to the Review Committee with certain observation for decision of the matter afresh but the Review Committee maintained the earlier decision of cancellation of result, whereupon the respondents filed a fresh Constitution petition in the High Court and a learned Division Bench, vide impugned judgment, by setting aside the order dated 8‑1‑2001 passed by the Review Committee, allowed the writ petitions. The finding of the Review Committee was as under:‑‑ "English Paper A & B: Roll Nos. 20923,22618, 20921, 20920, Bi‑Annual Examination, 2000, As per findings of the subject expert the contents and the material used in the answer, books are word for word the same. Physics Paper A & B: As per opinion of the subject expert the material and contents word for word' are the same in all the answer books. Biology Paper A & B: As per opinion of the subject expert the material and contents word for word are the same in all the answer books. Spelling of word "Pyruvic acid" are written wrong by all the candidates as 'Pytuyic acid". Chemistry A & B: As per opinion, of the subject expert all the material and contents are the ditto copy of one and other. Moreover the source of material is the same. It is impossible that all the candidates may have ditto answers without use of malpractices. Urdu A & B: As per opinion, of the subject specialist the contents and material used by the candidates are mostly the same. Isl/Education: As per report of subject specialist the material and contents used are similar word for word. Candidates have to answer in their own words: Pakistan Std. As per opinion of the subject specialist the material and contents used is mostly similar. From the findings of the above it is crystal clear that it, is humanly impossible to write ditto answer by various candidates using the same sentences, contents and material word for word. Two answers word for word written by any two candidates separately cannot be the same. It is but natural that there will be some difference/variation in sentences, grammar and words. 1 . 2 . 3 . 4 . 5 .

6. Continuation sheets used without signatures also show that some of the supervisory staff was involved in providing them without signatures of the proper person and one of the candidates did not sign attendance sheets which is mandatory.

7. The use of the extra sheets without the signature come to light only when the examiners while making the papers pointed out that unfair means have been used by the candidates."

3. The perusal of report would show that the Review Committee on the basis of observation made by the subject specialist during checking of the papers, raised a presumption of use of unfair means by the respondents in solving the papers without determining the manner and method of using unfair means. There was no evidence to show whether unfair means were used in the Examination Hall or out of the examination and since the Review Committee on the basis of observation made by the subject specialist, formed an opinion, therefore, before requiring the respondents‑students to explain their position, the concerned authorities at the first instance were under obligation to suggest the possible method of using unfair means and provide them fair opportunity to explain their position in the light thereof. It being not a direct case of use of unfair means in the examination hall, modes operandi of the student in solving the papers by use of unfair means was tot known and only on the basis of presumption, the respondents were punished.

4. The allegations of the use of extra sheets and solving the papers by use of unfair means and the change of centre for such purpose, were based on the observation of the subject specialist that the answers to they certain questions in the answer sheets of the respondents were found same word by word. The learned counsel for the appellant has not been able to point out any law under which the change of center was restricted. There was also nothing on record to show that the respondents, were responsible for not making the entries of extra sheets hearing the signatures of examiner which were supplied to them in the examination hall or that the extra sheets were subsequently added with the answer books. In absence of any positive proof of use unfair means, the respondents could not be penalized for the negligence of the staff of appellants and consequently, it would not be fair to award the punishment of cancellation of the result of respondents with considerable delay at the cost of irreparable loss of their educational; career.

5. The main point involved in this appeal would relate to the providing of fair opportunity to the respondents to explain about the similarity in their papers as pointed out by the Review Committee. In principle, there is no distinction between the, cases involving unfair means in the examination hall or after the examination. In case of use of unfair means in the examination hall, it would be permissible for the competent authority to punish the concerned student by making him aware of the wrong committed by him, without giving separate show cause notice but in cases in which action was to be taken ex‑post facto after inquiry on the basis of evidence collected from other sources, it would be essential to provide a reasonable opportunity to the concerned student to explain the matter in the light of rule of fairness. The minimum requirement of which would be that the student was aware of the nature of allegation and was given reasonable opportunity to explain his position to make relevant statement in his defence enabling him to correct or controvert any material brought against him on the record. Ordinarily, in the matters relating to educational institutions fair treatment of concerned authority in their pecuniary jurisdiction is presumed sufficient and the procedure of regular inquiry or trial in which witnesses are examined and the accused is allowed cross‑examination and fulfillment of such other legal formalities, is not needed. However, the authorities in .the educational institutions, in disciplinary matters must obtain information in formal manner and may call the information from any source but the exercise of this power, must be subject to the condition that the person against whom action is required to be taken must have been given a fair opportunity to correct or controvert any material to be used against him. It is true that domestic Tribunals like University or a Secondary Board of Education, are not bound. to observe the formalities of judicial Tribunals but it does not mean that these domestic forums while dealing with the valuable rights of students can take away their rights on conjectural grounds even if such grounds ostensibly appear to be permissible unless there is valid proof of their tangibility and one may feel to the truth of a particular fact but in absence of a legal proof of existence of such fact, it cannot on the basis of suspicion, be presumed to be proved. This is a settled law that a decision of domestic Tribunal would not rest on mere suspicion and speculation but must be based on the legal grounds established by the legal evidence. The observation of the subject specialist that certain answers in the paper of the students were found, word by word, same is not ipso facto an evidence of the fact that the students solved the papers in a manner which may apparently and conveniently lead to a person to draw an influence that unfair mean was used but would not be more than a conjecture and without finding out the truth as legal and moral duty, it would not be fair to raise presumption of guilt. In such circumstances, the possibility and probability of innocence is equally blamed with the guilt of the students, therefore, it would not be fair to rob them of their right without producing positive evidence to establish that it was a case of use of unfair means in the examination hall or manipulation outside the hall and what could be the possible method of use of unfair means. In the present case, it was not known that at what stage and in what manner, the students used the unfair means and there was also nothing on record to ascertain whether students‑copied from some book or from some other material or exchanged the notes with each other and since there was nothing beyond an inference in the matter, therefore, in such circumstance, it would be unjust to quash the result of successful candidates.

6. Be that as it may, the High Court has not expressed on the report of Review Committee on the basis of which result was cancelled and it would not be proper for this Court to dilate upon the report of committee and enter into factual controversy involved in the matter. There is no cavil to the proposition that in writ jurisdiction, the High Court is not supposed to annul the action taken by an educational institution on the ground that the action was improper but at the same time, the High Court is not debarred from judicial review of the action taken by an authority in the educational institution to see whether it was taken in strict observation of the rules of fairness and natural justice and was in accordance with law. In view the rule of compassionate and sympathetic attitude of the guardians to towards their wards, subject to the discipline of the educational institution, the concerned authorities should not deal with the affairs of the students in a manner in consequence to which a student is made to suffer permanent loss in life.

7. Mr. Yasar Arafat, respondent, appearing in person on his behalf and on behalf of his co‑respondents, has informed us that he has already passed his BA examination and so is the case of other two respondents. The disciplinary action in the present case was initiated against the students in 2000 but the action taken by the appellant was set aside by the High Court and respondents in the meanwhile, having continued their studies did their graduation, therefore, the restoration of the order of cancellation of the result of respondent at this stage, would amount to also cancel their BA/B.Sc. result.

8. In the facts and circumstances of the present case and for the reasons stated above, I do not find it legal to uphold the decision of Board of quashing the result of the students and consequently, I dismiss this appeal and uphold the judgment of the High Court. M.H/B‑25/S Appeal dismissed.