1983 PLP 1485 (CLC)

(6) Whether the plaintiff was not given any adequate opportunity during the disciplinary proceedings ? If so, its effect ? O. P. P. (7) Whether there is any legal evidence connecting the plaintiff with the alteration of the result sheet ? If so, its effect? O. P. D. (8)Whether the plaintiff is not responsible for the loss of award list of viva voce examination ? If so, what is its effect ?

5. The trial Court held, about issues 5 and 6, that the charge‑sheet was not vague and due opportunity had been allowed to the petitioner to defend. As regards issues 7 and 8 the learned Civil Judge, held that though the petitioner was not directly responsible for the forgery, which was perpetrated by Khushi Muhammad, yet he would not interfere with the decision of the respondent which was a domestic tribunal. On the other hand, he observed that it would be hard for the plaintiff to appear in the entire examination, after a lapse of so many years. Further, the period of disqualification being already over, the Court observed that it would meet the ends of justice, if the petitioner is permitted to appear in the subject of medicine alone. As a result, the suit was decreed accord ingly, on 30th April, 1979. It is the case of the petitioner that she, in accordance with the decree, appeared in the said paper of medicine and is declared to have passed that examination.

6. The respondent University filed an appeal. It came up before the learned District Judge, on 22nd February, 1982 who accepted it to set aside the judgment and recall the decree. He held that it is well‑settled principle of law that if benefit of a wrong goes to any particular person then it must be presumed that the said wrong was committed by him: Reliance was placed on Rahat Siddiqui v. Board of Intermediate and Secondary Education (1977SCMR213). The learned District Judge also considered the report Exh. D. 13 of Dr. Zafar D.W. 3, made after conducting an inquiry against Khushi Muhammad Clerk and the opinion of the handwriting expert, to say that the Disciplinary Committee had sufficient material before it to pass the order of disqualification. He also relied on Ahmad v. Vice‑Chancellor (PLD1981SC464) and Shaukat Ali v. Controller of Examinations (1981 S C M R 364) to hold that personal hearing allowed to the petitioner was sufficient for the purpose of inquiry.

7. It is contended by the learned counsel for the petitioner that the Disciplinary Committee refused to allow the petitioner to examine Dr. Hayat Zafar, though a specific request for the purpose had. been made for the 'same. The reason given to examine him was that as Dr. Muhammad Saeed.uz‑Zafar had, in his report, Exh. D. 13, relied on an oral statement of Dr. Hayat Zafar to say that he distinctly remembered that the petitioner had failed in her oral examination of medicine. his statement was necessary. It may be clarified here that report of Dr. Zafar D. W. 3 had been made in the departmental inquiry conducted against Khushi Muhammad Clerk, was .alleged to have forged the register of marks and the later communications that the petitioner had passed the examination. He also contested the view of the learned Additional District Judge that "it is well‑settled that if the benefit of wrong goes to any particular person then it must be presumed that the said wrong was committed by him".

8. The learned counsel for the respondent submitted that the petitioner had been given a reasonable opportunity to defend herself and that the requirements of law laid down by the Supreme Court in the case of Zakir Ahmad (P L D 1965 S C 90) had been fully met. He also referred to Ahmad v. Vice‑Chancellor, Shaukat Ali v. Controller of Examinations and Akhtar Ali v. University of the Punjab (1979 S C M R 549) to say that the opportunity as provided therein had been granted to the petitioner. It will be useful to give briefly here the evidence brought on record, to appreciate the findings of the Disciplinary Committee and the lower Courts. Exh. D. 1 is a photo copy of the 'Result Statement of the Final Professional M. B., B. S. (Revised Latest Scheme) Annual Examination, 1973, held in May, 1974'. The serial No. 260 of it is of the petitioner. The charge against her is based on the entries in its columns 4, 5, T. According to the report of Mr. Bhan the handwriting expert, the entries therein had been erased with chemical erasures and re‑written in a hand, other than the one, which wrote the figures against other roll numbers. He probably could not find what were the initial figures. He also referred to the entry in column No. 19, which according to him, had been tampered with and changed from 70 to 76 by 'retouching and the blue pencil underline scored or attempted obliterated by short blue black with strokes'. Referring to column 27 be noticed that figure 930 was in a different ink and hand. The figure is the grand total of the marks obtained. Previously, according to the expert, there was only a pair of parallel lines standing for 'failures' as against Roll Nos. 261, 262 etc.

10. The petitioner was shown as 'fail' in column 28 of the said statement. It was scored in red in and replaced in red ink with word 'pass', in a hand different from those in . Roll Nos. 257, 258 etc. At the bottom of the same sheet D. 1 against 'Total Numbers of Passes', initial entry of '7' has been scored and re‑written in different hand as '8', encircled and subsequently overwritten as '7' and initiated in a different handwriting than those against Roll Nos. 253, 257 etc. Mr. Bhan further opined that the previous entry in red ink in column 30 against Roll No. 260 bad been bleached out, by chemical ink eradicator but that entry could be read, under ultra violet rays, as 'Reappear in Medicine etc. Eye, N. T_' The initials in column 30 were also found by him to be forged:.

11. Dr. Zafar D. W. 3 in his report of departmental inquiry against Khushi Muhammad came to same conclusion as Mr. Bhan. He also stated that the marks of Roll No. 260 to the subject B‑Medicine oral had been changed, The original marks list was missing and there was no copy of it anywhere else, meaning thereby that there could be no con clusive check ,of it. He noted that the marks in the result statement (Now D/3) were written in an ink different from the usual. The marks in D‑Eye and ENT clinical and practical have. too been tampered with. (He, however, on comparison with other record, .found no discrepancy). He also opined, about the initials in columns 30 and 28, similar to what Mr: Bhan bad said. In order to find out more about it Dr. Zafar inter viewed the petitioner's class‑mates, whb bad been surprised to learn that the petitioner had. passed. He also met Dr, Hayat Zafar, an internal examiner of 'Medicine'. He personally knew the petitioner and recalled that she had failed in clinical and oral examination. Dr. Hayat War, however, declined to give that statement in writing. The petitioner, in her statement before the trial Court, admitted that changes bad been made in the result sheet but she categorically denied her joining hands with Khushi Muhammad, in forging it: She had also taken exception to the word `manipulation' used in the charge‑sheet and had been asking for its true import to answer the charge. She also expressed ignorance as to why they were changed.

12. The Disciplinary Committee considered the result sheet and show ed it to the petitioner also. The relevant file and the notifications of the result were also seen. The register maintained by the Tabulation Branch for recording various results notifications was also looked at. The Committee then directed to seek the opinion of handwriting expert on the result sheet. The information asked for by the petitioner was also directed to be supplied. The petitioner was beard again on 27tb Decem ber, 1976 and shown all the documents. The Committee then recorded a very elaborate order disqualifying her for three years. It is to be noted that the petitioner denied the charge and insisted that she be shown the original award list pertaining to the oral, clinical and practical examinations, in the subject of medicine, to verify the correctness of the allegations. Earlier, she expressed her desire to cross‑examine the person, on the basis of whose statement, she was given the. charge‑sheet. The Committee also informed her that the award, list was not available in the office.

13. The reports of the handwriting expert and Dr. War, do go to show that originally the petitioner failed in the examination and was to appear again in some subjects. The result sheet Exh. D 1 showed that initially. seven candidates had passed but it was changed to eight latter. The total was represented previously by two parallel lines but later 930 was shown in that column. The initials of the persons who made the alterations were also said to have been forged. as the same were different in respect of other candidates. 1n fact, the forgery is clear to the naked eye. In this view of the matter, the objection of the petitioner that she should have been shown the original award list, which probably had been purposely removed from the office, is not at all effective. The result sheet ‑and the opinions on the tampered with entries, make it absolutely clear that the petitioner failed in the oral, clinical and practical of medicine. The alterations made later were not authorised. The petitioner was also given opportunity to defend herself. The objection of the petitioner about lack of reasonable opportunity to defend, therefore, requires only to be considered in the light of the law laid down by the superior Courts.

14. In Ahmad etc. v. Vice‑Chancellor the Supreme Court held that the principles of natural justice do, not require any formal notice to be served. on the petitioners and their becoming aware of the proceedings conducted by the Disciplinary Committee is quite enough. They further held that an omission to frame a formal charge‑sheet or formal examina tion of witnesses, in petitioner's presence and affording them an opportu nity of cross‑examination is not necessary. The learned Judges added that an educational institution is neither required to act as a criminal Court nor is it bound to follow the legal or procedural formalities of such a Court.. According to them a student being dealt with, for miscon duct or indiscipline, is rather not to be treated as $n ordinary, criminal. Nor are the authorities required to get into the robes of police prosecuting agency, Rather, the method of questioning, discussion and or confronta tion should create a healthy atmosphere and attitude of all concerned in such inquiries is not necessarily of adversaries or antagonists.

15. The same view, with a slight modification, was taken in the case of Shaukar Ali. It was held that persons incharge of educational institutions be given fullest authority, vis‑a‑vis their students, in the same manner as parents, or guardians. The presumption it was held would be that, any action taken against a student is valid, unless it is shown that it was done mala fide. The burden in that situation would shift to authorities to establish the charge against the student, on the basis of evidence, which must be recorded in the presence of the student and he be given an` opportunity to cross‑examine and produce his evidence in rebuttal. In Aichtar Ali v. University of the Punjab the facts of the case were somewhat similar to the one in hand, The learned ‑Judges also referred to the case of Samar Parvez (P L D 1971 S C 838) though they did not discuss it further. They however, found that there was material before the Disciplinary Committee to come to the conclusion that the appellant was involved in the issuance of the forged notification, by which he was declared passed, They further found that the Disciplinary Committee not only afforded hint more than adequate opportunity but he was heard on two occasions to clear his position.

16. In view of the above legal position, the claim of the petitioner that she should have been allowed to cross‑examine the complainant or Dr. Hayat Zafar or that the' missing award list should have been pro duced, has no force. The next objection taken by the learned Additional District Judge was that if a candidate benefits from a wrong, there will be an irresistable presumption that he was responsible for it. Reliance was placed on the case of Rahat Siddiqui. This view, however, ap pears to be incorrect. In the case of Samar Parvez the candidate's marks as precisely in this case, were increased by tampering with the record and he was obviously the beneficiary. The learned Judges, how ever, observed that the said fact alone would not prove that the efforts, in that regard, had been made by the candidate himself and not his parents or other relations, in league with the concerned officials of the Board, as they would be more worried and interested about the welfara and future of the candidate, at that stage of his life. They further remarked that if there is no evidence to. connect the candidate with the result brought about, the mere inflation of the marks said their benefit to the candidate, may only lead to mere conjectural‑ hypothesis. but cannot be a proof of the fact that he prevailed upon the examiner to achieve that effect. Accord ing to the learned Judges it is dangerous to convict a man and rob him of his rights when probabilities were. equally balanced either way.

17. The rule laid down by the Supreme Court in the above case was that though the domestic tribunals like University or Secondary Board.of Education; are free from fetters and the formalities of a judicial trial, it does not mean that they while dealing with valuable rights and' privileges of an individual can snatch them awa3, on conjectural grounds, without any valid proof of their tangibility. The learned Judges further observed that howsoever morally convinced a judge may feel, as to the truth of a particular fact, he cannot take it as proved, unless there is a legal proof of its existence. Conjectures and suspicions, it was ruled, cannot take the place of proof and the decision must rest on legal grounds, established x 10 by legal evidence.

18. The learned counsel for the respondent had relied on the view of the Supreme Court in Rahat Siddigui v. Board of Intermediate and Secondary Education to argue that the rule laid down in the case of Samar Parvez is no longer a good law. In that case a Bench of three Judges of the Supreme Court found that it was legitimate, from the circumstances of the case, to infer that the inflation was made on the inducement of the appellant. So it is not. correct to say that a departure was made from the rule laid down in Samar Parvez's case. It was rather an application of the rule to the circumstances of the case, to say that the candidate and not his relations etc. were responsible for the offence. The facts of the case were that the appellate Committee ordered fresh examination of the social studies paper of the appellant by another examiner. The result of that re‑examination confirmed the fact that the inflation of the marks was due to collusion between the appel lant and the two examiners. The inflation of the marks was also mani festly for the benefit of the appellant. It was in that dual situation that the learned Judges agreed with the High Court and upheld its finding that sufficient opportunity bad been given to the appellant to defend him self and there was no contravention of any principle of natural justice.

19. The above discussion makes it quite clear that the law laid down in Samar Parvez has neither, expressly, nor impliedly, bee overruled or differed with. Therefore, it still holds the field and has to be followed. In the situation there can be no straight presumption against the wrong‑doer, for may be, it was not she but her parents or relation who might have colluded with Khushi Muhammad Clerk to bring about the objectionable result. Again, if what is being canvassed is taken as the law, it may open flood‑gates of corruption and black‑mail, for people like `Khushi Muhammad clerk'. As any alteration in the result, to the benefit of a candidate, may ruin his career, it may prove to be a formid able weapon of extortion in the hand of an unscrupulous official. It is probably for that reason that the learned Judges specified, very clearly, the limits of the rule in Samar Parvez. Therefore, to punish the petitioner in this case, the Disciplinary Committee must have also come to‑the conclusion that it was the petitioner who colluded with or persuaded an official of the respondent to alter the result sheet to her benefit. This, as said in para. 12 above, was not the finding. No presumption thus could be drawn against her and she could not be punished for it. 20. 1n view of the above, there is no doubt that the petitioner had failed in the oral, clinical and practical examination of medicine and her result was unauthorisedly, changed to show her as `pass'. She was, there fore, liable to re‑appear in that paper. There was, however, nothing in the finding of the domestic tribunal that it was she who did or arrange that alteration. Consequently, she could not be awarded the punishment. Resultantly, this revision petition succeeds, the order of the lower appel late Court is set aside and the judgment and the decree of the trial Court are restored, not for the reasons stated therein but for the rule laid down by the Supreme Court, in the case of Samar Parvez. The parties shall, however, bear their own costs throughout.; M. A. H. Petition accepted.