P L D 1966 Supreme Court 841 (PLP)

FAZLE‑AKBAR, J.‑This judgment relates to Civil Appeal No. K‑19 of 1966 and Civil Appeal No. 51 of 1966. In the last mentioned case, viz. No. 51 of 1966, leave to appeal was granted in the course of the hearing. These two appeals were heard together as the question for decision was common in A both of them. The appellants Murlidhar and Muhammad Yousaf Ghouri were students of N. E, D. Government Engineering College, Karachi. They appeared in the S. E. (Mechanical) exami nation held by the Karachi University in July 1965. The seat number of appellant Muhammad Yousaf Ghouri in the exami nation hall was 226 and that of Murlidhar

227. The examination which commenced in July 1965 continued till September 1965. On 22nd July 1965 the invigilator noticed these appellants talking to each other in the examination half 3 or 4 times. He warned them but as he found them again talking, he took away their scripts and brought them to the Head Invigilator. The Head Invigilator, after questioning the appellants gave back their scripts and allowed them to resume the examination which they completed by appearing in all the papers. The University declared the result of the examination on the 11th November, 1965, but the results of these appellants were withheld without assigning any reason. In the first week of December 1965, they received a circular from the University showing that their results of the annual examination, 1965 had been cancelled for using `unfair means'. The appellant Murlidhar made a represen tation to the Vice‑Chancellor but he was informed by the Controller of Examinations on 13th December 1965, that the Vice‑Chancellor after re‑examination of his case did not consider it to be a fit one for being placed before the authorities concerned for re‑consideration. On 4th January 1966, Murlidhar moved a petition under bar, Article 98 of the Constitution before the High Court of West Pakistan, Karachi Bench challenging the action of the University. On 13th January 1966, Muhammad Yousaf Ghouri also moved a similar petition in the High Court. In both the cases reports were called for from the University. After examining the said reports the High Court dismissed in limine the petition of Murlidhar on 11th February 1966 and that of Muhammad Yousuf Ghouri on 16th February 1966. Murlidhar then filed a petition for special leave to appeal from the order of the High Court. As important questions of law as to the interpretation of regulation 14 of the University Regulations relating to the conduct of the examinations were raised, special leave to appeal was granted. Subsequently Muhammad Yousaf Ghouri also filed a petition for special leave to appeal and his petition during hearing was converted into appeal. In order to appreciate the arguments raised by the learned Counsel it is necessary to set out the provisions of Regu lation 14 (ii) of the University of Karachi with regard to conduct of examination: "Any candidate, detected in giving or receiving assistance or found guilty of copying from any paper, book or note, or using or attempting to use these or any other unfair means, shall be expelled by the Head Invigilator from the examination of that day and subsequent days, if any, and his case shall be reported to the Controller of Examinations for such further action as may be deemed necessary. Such candidate shall be liable to be debarred from appearing at any examination of the University and from admission to any class in the University or in any of its affiliated Institutions for a period not exceeding three years." Mr. Nusrat, the learned counsel for the appellants has contended that after questioning the appellants the Head Invigilator was satisfied with their explanation and hence he returned the scripts and allowed them to resume the examination and as such the authorities concerned were not justified in cancelling their results without giving them a hearing. Mr. Ali Ahmad Fazeel, the learned counsel on behalf of the University has contended that the Head Invigilator before submitting his report had questioned the appellants with regard to the allegations made against them and as such the principles of natural justice bad been duly complied with. In the reports called for by the High Court from the University it was stated that the appellants had been given sufficient opportunity for explaining their "objectionable behaviour" in the examination hall by the Head Invigilator when they were produced before him and that the Head Invigilator though he could himself have inflicted punishment upon the candidates, considered it more appropriate to report the matter to the authorities of the University which had ultimately taken action. Hence there was no necessity of any fresh show cause notice because they bad been dealt with fairly and had been given opportunity of explaining their conduct. It was further stated that the deferring of the punishment by the Head Invigilator or his allowing the petitioners to continue with their examination on the subsequent dates could not in this view of the matter, be deemed to have absolved the appellants of their liability for appropriate punishment. Now the report of the Head Invigilator on which Mr. Fazeel relied, was as follows:‑ "Mr. Sabir Ali, an invigilator, had noticed these students talking to each other three or four times and ignored it probably after warning. Then he found them again talking and took their scripts and brought them to me. I asked the students to explain the case. Then I asked Mr. Sabir Ali and he told me that he has ignored them for talking three or four times and then reported the matter of the students Seats Nos. 226 and 227. (Sd.) Head Invigilator 22‑7‑65. " On this report the Unfair‑means Committee of the University passed the following resolution on 9th October 1965: "Resolution No. 3: The result of the following candidates be cancelled: Serial No. Seat No. Examination -- -- -- -- -- -- 78 226 S. E. (Mech.) 79 227 S. E. (Mech.) It was pre‑faced by the following statements: The Committee after carefully examining the report of the Head Invigilator, Invigilators, the statements of the candidates concerned and the representations and the incriminating docu ments with all the connected papers relating to each case, made the following recommendations: . . . . . . . . . . . . . . . . . . . . . . . . It may, however, be mentioned here that so far as these two appellants were concerned, the Unfair‑Means Committee had taken action solely on the report of the Head Invigilator. The following statement was then prepared by the University giving they particulars of candidates found using unfair means at the annual examination of 1965 Serial No: Name of the candidate with parentage and address Report by Invigilator and Head Invigilator Confession by the candidate 1 2 8 9

78. Muhammad Yousaf Ghauri son of Muhammad Umar, 14 Adamjee IIsmailjee Building Ranchorelines, Karachi. The candidates was found talking No statement.

79. Murlidhar Gaugwani son of Permanand, 28‑B‑S, M.C.H.S., Near Malir Naka, Karachi. The candidates was talking with Seat No.

226. No statement With regard to these 2 appellants it was mentioned that they were found talking to each other and in column 9 meant for noting the confession by the candidate, the remark was "No statement." Thereafter on 23rd November 1965, the University issued a circular cancelling the results of these appellants. The question therefore, is: Whether in the facts and circumstances of this case it could be said that there was sufficient compliance with the principles of natural justice. No doubt when breach of discipline by a candidate is detected by an invigilator in the examination Hall the Head Invigilator in exercise of his power under Regulation No. 14 (ii) can expel him from the examination hall after such enquiry as he considers necessary. The Regulation makes him the final authority with regard to the question of misconduct of such a candidate. It may also be conceded that while taking action under the Regulation he is not required to hold a full‑fledged enquiry. All that is required is that the candidate sought to be . affected by c his order must be made aware of the allegation against him and given a chance to explain his conduct. If after questioning the appellants he had expelled them from the Hall one could have said that as their explanation was unsatisfactory, he had rightly exercised his power under Regulation 14 (ii). He, however, after questioning the students returned their scripts to them and then they resumed their examination. From this the only legitimate and reasonable inference could be that he was satisfied with their explanation and as such did not wish to take any action against them under Regulation No. 14 (ii). Next we take up the report. This colorless and vague report does not say what was the nature of the talk, what was the explanation of the appellants, whether the appellants' explanation was satisfactory or not and whether they were guilty of misconduct. From this report one can very well argue that the appellants had perhaps exchanged views on some irrelevant matters and the Head Invigilator, after having been satisfied with their explanation allowed them to resume their examination with a warning. This report was, therefore, not at all sufficient to satisfy any reasonable body of persons that the appellants were guilty of misconduct. Considering the serious effects of the decision of the Committee, it was all the more necessary for the Committee to decide objectively after considering all the materials, if disciplinary action was called for in this case. As already stated the report did not give full facts and hence it was the duty of the Committee to give the appellants an opportunity to explain their conduct. The Committee must remember that while deciding such cases they act quasi judicially, and it was their duty to find out actually what took place and it was then for them to say whether that did or did not amount to misconduct. On the facts and circumstances of the case we unhesitatingly have come to the conclusion that the Committee reached its decision) in total disregard off the essentials of natural justice. Furthermore, as action was proposed to be taken ex post facto, the Committee was bound to give a hearing to the appellants. In this connection reference may be made to the E following observations of this Court in Abdus Saboor Khan v. Karachi University and another (P L D 1966 S C 536): "The principle governing such cases was laid down by this Court in the case of the University of Dacca v. Zakir Ahmad P L D 1965 S C

90. It was observed therein that whenever any person, or body of persons, is empowered to take decisions, after ex post facto investigation into facts which will result in consequence affecting the person, property or other right of another person, then, in the absence 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 a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case." This is the principle embodied in the maxim audi alteram partem and has been applied by this Court in other cases where orders passed by administrative tribunals or authorities, affecting the rights of citizens, in point of property, or other rights, had been passed, without giving an opportunity for defence to the person concerned. "No one can be condemned unheard", is one of the settled principle of law, and such a principle will be read into the relevant law, unless its application is excluded by express words. A duty is cast on every administrative Tribunal to act fairly and justly and with due regard to the principles of natural justice, unless specifically exempted from such a limitation. Mere omission from the relevant law, of a provision for notice, would not affect this position. Reference in this connection may be made to the cases, reported as Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45; Messrs Faridsons Limited v. The Government of Pakistan and another P L D 1961 S C 537 and Abdur Rahman v. Collector and Deputy Commissioner, Rawalpindi P L D 1964 S C

461. The decision in this case of Dacca University, to which reference has been made in the above observations, was given in 1964. It is a matter of regret that the Committee or the University did not consider that decision while deciding this case. Now the University has purported to take action solely on the recommendations of the Unfair‑means Committee which, as already shown, was based on practically no materials. The statement which was placed before the University authorities showed that these appellants had made `no statement' and this ought to have altered the University authorities to the necessity of recording the statement of the appellants. It seems that the Authorities concerned as a matter of routine, straightway accepted the recommendations of the Committee without applying their mind and without making any further investigation. If the Committee had failed in its duty, the Authorities concerned should have taken steps to rectify that mistake. This was, however, not done. For the reasons stated above we are satisfied that the Unfair‑Means Committee or the University acted in these cases in total disregard of the essentials of natural justice and the decisions of the University, therefore, cannot be sustained. Before parting with the case we would like to observe that in such a case it is not sufficient that the University should act honestly and in good faith but when it is exercising the serious power of disqualifying a student on the ground of misconduct, it must be satisfied that he was given an opportunity to defend himself. We accordingly allow these appeals and quash the orders of the University. This will, however, not prevent the University from taking such action in accordance with law against these appellants, as it deems fit and proper. The appellants will be entitled to their costs in this Court and in the Courts below. A. H. Order accordingly.