P L D 1971 Supreme Court 838 (PLP)

(6) mutilation, alteration, interpolation or erasion in any certificate or other document or any record maintained by the Board or in any manner using or causing to be used a certificate, document or record, knowing that it was so mutilated, altered, interpolated or erased, (11) approaching or Influencing any employee of the Board to act corruptly or dishonestly !n the conduct of an examina tion, declaration of any examination result or marking of papers or obtaining secret information relating to an examination, (12) shall be liable to such action as the Board may deem fit. A finding of fact arrived at by the Board or a competent authority or a committee or an officer appointed by the Board for that purpose shall be conclusive and shall not be called into question in any executive, administrative or judicial proceedings." The appellant submitted his reply to the Board on the 19th of January 1970, denying all the allegations against him. He asked for a personal hearing and permission to engage a counsel to defend his case. The appellant was informed that there was no provision in the rules for engagement of a counsel or any representative, as the cases were probed and decided depart mentally on facts and figures. The candidates, however, were given full opportunity to clear their position at the time of investigation. The appellant appeared before the committee of the Board, and stated in writing that he did not want to add to what he had said fn his written reply. No witnesses were produced or examined in support of the charge-sheet. In the result, the appellant was disqualified from appearing at 7 examinations of the Board from September 1966, up to September 1969, under rule 15 (6), (l1) and (12) of the Board's Calendar 1962-65 mentioned above. This meant that the appellant's success in the intermediate supplementary examination of 1967 with 533 marks was also cancelled and virtually converted into his failure. The appellant's name was also struck off from the college rolls. The appellant thereupon filed a wait petition in the High Court (No. 1508 of 1970), with the prayer that the aforesaid order of the Board be declared to be without lawful authority, and that the Administrator, King Edward Medical College, Lahore, be directed not to prevent the appellant from attending the college. Before instituting his writ petition, the appellant had filed a civil suit, with a prayer for a temporary injunction against the Administrator, King Edward Medical College, Lahore, not to prevent him from attending his classes. The interim injunction was refused by the first Court and the lower appellate Court, but was granted by the High Court in a revision petition filed by the appellant. This revision petition was ultimately withdrawn on the 17th of September 1970, and the stay order thus stood vacated. In the meanwhile, the appellant had taken his second year M. B., B. S. examination and was provisionally promoted to the third year class. The writ petition was dismissed by Division Bench of the High Court whereupon the appellant filed a petition for special leave to this Court, which was granted on the 20th of April 1971, to consider the contention that there was no evidence to connect the appellant with the inflation of his marks, and that he had been condemned by the Board on a mere suspicion. In declining to interfere with the impugned action of the Board, the learned Judges of the Division Bench have observed as follows :- "Having regard to the common course of human conduct and public business in relation to the facts of this particular case, the Tribunal of the Board was perfectly within its rights to presume that the inflation of the marks must have taken place at the instance of the petitioner, for the act being deliberate and the petitioner being the beneficiary, it could not have been done but at his instance or with his connivance. In any case, it is not for us to decide whether the conclusion arrived at by the Committee is correct or otherwise. All that we have to see is whether the petitioner had been granted reasonable opportunity of clearing his position before the condemnation. The petitioner having himself given it in writing that he did not want to add to what he had already stated in writing, the Committee could not but proceed to draw the natural inferences from the entries in the two registers . . . . . . . . . . In the instant case, the petitioner was served with a formal charge-sheet, no witnesses were examined against him, or could possibly be examined against him. The question of granting an opportunity to cross-examine them did, therefore, not arise. It is a case where the Committee had to act on the basis of the record before it i.e. the registers and the award-lists, particularly because the only other evidence i. e. answer books could not be made available as they are destroyed annually. There is no allegation that the Committee acted in bad faith, and the basic requirements pointed out by the Supreme Court had, in the particular circumstances of this case, been complied with. There was, therefore, no transgression of the principles of natural justice." The basic requirements as pointed out by the Supreme Court, referred to above in the quoted para. are culled from a decision of this Court reported as University of Dacca v. Zahur Ahmad (P L D 1965 S C 90) wherein the following observations occur :- "Of course the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer an oath or examine witnesses in the presence of the person accused or give him facility for cross-examining .the witnesses against him or even to serve a formal charge-sheet upon him." It is true that domestic Tribunals like a University or a Secondary. Board of Education are free from the fetters and the formalities of a judicial trial, and while these can, consistently with the demands of justice; be ignored, it does not, by any means, follow A that such domestic forums, while dealing with valuable rights and privileges of an individual, can snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof. A Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence. In the present case, apart from the fact that the appellant's marks were increased by tampering with the records, and he is the beneficiary thereof, there is no evidence at all to connect him with bringing about .that result. The mere fact that the marks bad been inflated and the appellant stands to benefit from that circumstance may convincingly lead one to a conjectural hypothesis that this was done at his instance or with his connivance, but it is no more than a mere conjecture. An equally convincing hypothesis can be that his father or some other relation may, in league with the concerned officials of of the Board, have arranged to tamper with the appellant's result sheet without the latter's knowledge or connivance. His parents or his relations were as much beneficiaries of the result achieved as the appellant himself. The former would be more particularly worried and concerned about the future of the appellant at this stage of his life, his future welfare being an Inseparable part of their own well-being. But, as already remarked above, it is, at best, a matter of mere conjecture as to how much the appellant was directly or indirectly involved in inflating his marks. The Board's officials, who were in charge of the records, and who had access to them, should have been probed to find out the truth. On the plane of mere conjectures, one is left with the feeling that the appellant may be guilty or he may be innocent, and it is dangerous to convict a man and rob him of his rights when the probabilities are equally balanced either way. It is also possibly true that no positive evidence could have been adduced to prove the appellant's guilt in manipulating his result by forging the records, and the matter remains in the realm of inferences. If the facts were to yield the only irresistible inference that the appellant alone and none else on his side was res ponsible for this tampering, and that it was done with his knowledge and connivance, it would not have been difficult to agree with the learned Judges of the High Court, but here, as already pointed out above, other inferences are legitimately deducible, which leave the appellant's guilt in the matter clouded in doubt. An argument was made on the basis of rule 18 of Chapter V of the Board's Calendar 1962-65, to defend the Board's action against the appellant. This rule is as follows :- "The Board shall have power to quash the result of a candidate after it has been declared (1) if he has been disquali fied for using unfair means in the examination. or (2) if a mistake is found in his result, or (3) if it is found that he was not eligible to appear In the examination, or for any other reasons that may be determined by the Board . . . . ." A mistake has obviously been found in the result of the appellant, as stated in clause (2) above, but must his result be quashed on that basis without any proof that this mistake was due to some culpable act on his part. It would be obviously unjust to hold that a successful candidate's result in the examination should be quashed if a mistake has crept into that result on account of an arithmetical error deliberately or accidentally made by the functionaries of the Board. We are inclined to think that before the Board quashes the result of a successful candidate on account of a mistake in that result, it must be shown that the B mistake can be laid at the candidate's door on account of some positive action on his part, unless the mistake so detected automatically reduces his success into failure. In the case of the appellant, even by deducting the fictitiously inflated marks from his total he still gets 533 marks and a pass in the second division. We have, therefore, come to the conclusion that on the facts and circumstances of this case, the Board's decision in quashing the appellant's result cannot be upheld as legally correct. This brings us to the other part of the case, which is the striking off the name of the appellant from the rolls of the King Edward Medical College, Lahore. The learned Judges in the High Court have examined the original records, and rightly come to the conclusion that the correct marks obtained by the appellant were 533 which were inflared to 633 by tampering with the entries. It is not denied by the appellant and his learned counsel that factually this is the correct position. This being the case, it is obvious that the appellant secured his admis sion to the college on a representation with regard to the marks obtained by him, which has been proved to be incorrect. He would not have been able to secure admission to the college if the correct state of affairs was known to the authorities Plainly this factor vitiates the admission. The learned counsel for the appellant drew our attention to para. 26 of the prospectus of the King Edward Medical College, Lahore, for the year 1967-68, for the contention that the appellant's name could have been struck off during the first year in the college and not afterwards even if he was found guilty of securing admission through illegal means. The argument appears to canvass that even where admission is obtained by dishonest represen tation. or fraudulent means, it receives immunity after the lapse of one year. Lapse of time does not sanctify an action based on fraud and misrepresentation. But in the present case, action seems to have been taken not under para. 26 but on the appellant s own declaration in his admission form, which is incorporated in the college prospectus, and which is to the following effect :- "Further I solemnly declare that all the above particulars are true and I fully understand that if any of the above statements made in the application is found to be wrong, I would be liable to refusal of admission to the Medical College even if otherwise eligible for admission, and if admitted, would be liable to be expelled from the College at any time during the course of my studies, in which case all fees and other dues paid by me to the College shall be forfeited and I will be liable to any further departmental or legal action which Government may deem fit to take." One of the particulars and statements required to be stated in the application is listed in item No. 14 of the application relating to division and marks obtained by the candidate in the Matriculation. as well as Intermediate pre-medical examinations. Since the appellant's statement on this item in his application has been found to be wrong, the college authorities. were perfectly within their rights to strike off the appellant's name. The learned counsel. has, however, submitted that the position in which the appellant is now placed demands a commiserable and merciful consideration. The appellant has already taken his second year examination and has been provisionally promoted to the third year M. B., B. S. class. His expulsion from the college now would mean wastage of two precious years of his life. These considerations cannot matter with us in disposing of this case on a legal plane. The appellant may, if so advised, seek indulgence from the college authorities, who would be. quite competent to give him the relief, if they feel inclined to do so despite this judgment by this Court. In the result, this appeal is accepted to the extent that the decision of the Board in quashing the appellant's result in the intermediate pre-medical examination (1967) is set aside. The decision of the Administrator of the King Edward Medical College, Lahore, in striking off the appellant's name from the college rolls is maintained. In the circumstances of the case, we leave the parties to bear their own costs. K. B. A. Appeal partly accepted.