1988 PLP 329 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.--The question of law for determination in this appeal is whether in the facts and circumstances of this case the production of witnesses their examination and cross examination was essential to meet the requirements of the principle of natural justice in the domestic inquiry held against the respondent Abdul Majid appeared at the Spring Matriculation Examination of the Board of Intermediate and Secondary Education Lahore and on 26th March, 1979, he was in the examination hall at Gujranwala Centre No.1 to take Civics paper, when he was caught red-handed for copying from a chit of paper by the Assistant Superintendent of the Center. The latter made out a report, obtained the statement of the respondent wherein he admitted that he was found in possession of the chit but denied having copied from it and pleaded for forgiveness. This statement was duly signed by the respondent The Superintendent of the Center thereupon reported against the respondent to the appellant, the Board of Intermediate and Secondary Education, for use of unfair means and a charge sheet dated 21st February, 1979, was drawn up against the respondent alleging violation of rule 6.6. (possession of objectionable material) and rule 6.8. (copying from objectionable material). On receiving the charge sheet the respondent submitted a reply wherein he denied the recovery from his possession of the chit and also that he was copying from it and alleging enmity against the Superintendent as well as other staff of the Centre. He was served with a show-cause notice in response to which he appeared before the Disciplinary Committee on 10th June, 1979, was heard by it and punishment debarring the respondent .from the examination in which he was currently appearing and from three subsequent examinations, was imposed upon him. He thereupon filed appeal but the same was dismissed, after hearing him by the Committee of Appeal.

2. Being dissatisfied the respondent filed a constitutional petition in the High Court challenging the order of his disqualification which was allowed by a learned Single Judge vide judgment dated 19th February, 1980.

3. The main ground on which the respondent assailed the penal orders passed against him, was that no opportunity was afforded to him to cross-examine the Superintendent and Deputy Superintendent of the Centre and that these witnesses were not examined in his presence, whereas he had been condemned on the basis of their statements. This objection was based upon the fact that in his reply to the charge-sheet, he had specifically requested for summoning the aforesaid witnesses who were present in the examination hall at the relevant time, and their statements to be recorded in his presence. He had also prayed that he may be given an opportunity to cross examine them. As the factual aspect of the case was not controverted on behalf of the appellants the learned Single Judge who decided the constitutional petition following the precedent of the Lahore High Court reported as Abdul Majid v. Disciplinary Committee of the University of Punjab (PLD 1970 Lah. 416), held that in the circumstances of the case, the principles of natural justice had been violated. In this view of the matter the learned Judge accepted the constitutional petition and declared the orders passed by the Disciplinary Committee and the Committee of Appeal to be without lawful authority and of no legal effect vide judgment dated 19th February, 1980.

4. Being aggrieved the Board of Intermediate and Secondary Education, Lahore, and others, the appellants herein challenged the judgment of the High Court in a petition for leave to appeal and leave was granted in order to examine the correctness of the view taken by the learned Single Judge in the light of the law laid down by this Court on the subject. Mr. S.M. Zaffar, learned counsel appearing in support of the appeal contended that in the circumstances of this case, the respondent was given a fair opportunity to defend himself at more than one stage of the inquiry held against him to determine the truth or otherwise of the charge levelled against him. He further argued that in disciplinary matters particularly in the context of the Educational Institutions, it would be pushing the principle of natural justice too far to insist that in each and every case the evidence of the supervisory staff should necessarily be taken in the same manner as in judicial proceedings. It may be recalled that in the leading case of the University of Dacca and another v. Zakir Ahmad P L D 1965 S C 90, this Court laid down that any person or body of persons empowered to take decision after ex post facto investigation into facts which would result in consequences affecting, inter alia, the right of any person, then in absence of any express exclusion of the principles of natural justice, such person or body would be under duty to act in accordance with such principles of natural justice "as may be applicable in the facts and circumstances of the given case." No hard and fast rule could be laid down for general application as the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rule under which the Tribunal is acting, the subject-matter that is being dealt with etc. These principles were reiterated in a recent decision of this Court Vice-Chancellor, University of Punjab v. Muhammad Zahur Nasir 1985 S C M R 802 and it was observed: These principles enshrined in the monumental decision of this case have been consistently followed and applied by this Court. There can, therefore, be no cavil against the proposition that the University Authorities are not required in the disciplinary proceedings to strictly follow the technical rules of evidence enjoined by the Evidence Act and the decision of the High Court does not proceed on the violation of any such rule of evidence. It cannot be disputed that notwithstanding the settled view that the disciplinary forums functioning in the educational institutions are not tied down to procedural requirements of a trial in a judicial or quasi-judicial forum, like administering oath or examining witnesses in the presence of the accused person or giving him facility of cross-examining the witnesses, the decision of such forum is nonetheless not sacrosanct if it is unfair or arbitrary." This view has been reasserted in a long line of decisions that in the matters of disciplinary inquiries the Educational Institutions are not bound to treat the enquiry "like a trial or to follow the practice of examining or cross-examining witnesses or to construe evidence strictly according to law of evidence". See Muhammad Shakil v. The Quaid-i-Azam University 1984 S C M R

192. Similar view was expressed in Ahmad v. University of Engineering and Technology P L D 1981 S C 464 and Shaukat Ali v. The Controller of Examinations, University of the Punjab and another 1981 S C ,M R 364.

5. Learned counsel for the respondent was unable to dispute or produce contrary law to show, that in any domestic inquiry held by the Educational Institutions in matters of discipline against the student, the requirements of rule of natural justice necessarily demand the examination of witnesses in the presence of the accused student. As pointed out above such is not a compulsory requirement of the rule as applicable in such matters. All that is necessary is that a fair opportunity must be provided to the accused person before the Tribunal to represent his side of the case and rebut the material on the basis of which action is proposed to be taken and the Tribunal has acted in a manner which excludes reasonable possibility of unfair action being taken. It seems that unfortunately the law declared by this Court as pointed out above notice of the learned Judge who proceeded to declare the impugned orders invalid solely on the basis that the witnesses were not examined in presence of the respondent and he was not given opportunity of cross-examining them. This could not furnish the sole basis for vitiating the impugned order.

5. It may be observed that before the High Court, as reflected in the judgment, the respondent's grievance was not that he was given no notice of the material proposed to be used against him in support of the charge. But his contention was that the witnesses were not examined in his presence nor were they allowed to be cross-examined by him and the order was passed on the statements recorded in his absence. The High Court also proceeded on this basis and accepted the constitutional petition of the respondent. As discussed above this was not a sufficient basis to strike down the orders passed against the respondent. We have perused the record and find that the appellants had asserted in their written statements before the High Court that all the material on which he was found guilty was shown to the respondent, which included his confessional statement to the effect that he was in possession of the objectionable material. It was further contended by the appellants in the written statements that the printed note secured from the possession of the respondent, which he had admitted in his statement was compared with his answer book and it was found that the answers given by the respondent were a verbatim copy of the note secured from him. According to the appellants in these circumstances the Disciplinary Committee did not feel it necessary to call any witness as desired by the respondent. Copy of the objectionable material alongwith a photo copy of the answer of the respondent copied from the objectionable material was also placed. This important evidence and this aspect of the matter was not taken into consideration by the learned Judge in the High Court. In our opinion the Disciplinary Committee, in the circumstances of this case, did not act unfairly in refusing the request of the respondent to summon the witnesses for examination and cross examination. Even before us it was not disputed that the respondent had given a statement admitting possession of the objectionable material and the answers contained in his answer book were a verbatim copy of the printed note secured from his possession. We are, therefore, of the opinion that in view of the legal position stated above, there was no violation of the principle of natural justice in this case.

6. In the result this appeal is allowed with no order as to costs. S.Q./B-24/S Appeal allowed.