2000 PLP 1705 (MLD)

Masood Ashraf Sheikh for Respondents. ‑ Date of hearing: 28th May, 1999. Through this Constitutional petition, the petitioner has challenged the order of Discipline Committee, dated 17‑10‑1997, whereby, the petitioner has been disqualified from the Examinations from Annual 1997 to Supplementary, 1998 and the order of Appeal Committee of the Board of Intermediate and Secondary Education, ‑Bahawalpur, dated 6‑12‑1997, whereby, the appeal of the petitioner has been dismissed.

2. Brief facts of the case are that the petitioner appeared in the Secondary School Certificate Examination Annual, 1997 under Roll No.9785 in full subject at Centre Government High School, Ahmadpur Lamma, Tehsil Sadiqabad, District Rahimyar Khan. The Assistant Controller, Board of Intermediate and Secondary Education, Bahawalpur, issued charge‑sheet to the petitioner on 25‑6‑1997 with the remarks that in English Paper 'B', the answers written in the petitioner's Answer Book are of different hand writings and the petitioner was directed to appear before the Discipline Committee. The petitioner appeared before the Discipline Committee and denied the charge and explained his position. Respondent No.3 vide Letter No.1338/Discipline, dated 23‑8‑1997, intimated the petitioner about the decision of the Discipline Committee and informed that the petitioner has been exonerated of the charges Annexure 'C'. However, vide Letter No.1488/Discipline, dated 17‑10‑1997, the respondent No.3 Assistant Controller (Discipline), Board of Intermediate and Secondary Education, Bahawalpur again intimated the petitioner that the charges of using of unfair means have been proved against the petitioner and the petitioner has been disqualified from the Examinations from Annual 1997 to Supplementary 1998. The petitioner being aggrieved by the intimation, dated 17‑10‑1997 regarding his disqualification, preferred an appeal before the Appeal Committee and deposited the prescribed appeal fee. The petitioner was summoned by the Appeal Committee for 29‑11‑1997. In pursuance of the intimation, the petitioner appeared before the Appeal Committee and explained his case and denied the charges. Thereafter, he was informed by the respondent No.3 vide impugned order, dated 6‑12‑1997 regarding rejection of his appeal against the decision of the Discipline Committee, dated 17‑10‑1997, hence this Constitutional petition.

3. The learned counsel for the petitioner has argued that the decision of the Discipline Committee intimated to the petitioner vide letter, dated 23rd of August, 1997, whereby, the petitioner was exonerated of the charges, being unanimous, was final under the Rules as it existed on 3rd of March, 1997, copy of which has been produced by the respondents, hence, no power was left with any authority thereafter to reopen the matter. Further, argued that the respondents have failed to bring on record any order passed by the Chairman for referring the matter to some other Discipline Committee hence the subsequent alleged decision of the said Committee communicated to the petitioner by the respondent No.3 vide memo., dated 17‑10‑1997 is void and without lawful authority. Further argued that the decision of the Discipline Committee had been communicated to the petitioner by respondent No.3 on 23‑8‑1997, whereby the petitioner was, exonerated of the charges of unfair means, hence, a right had been created in the petitioner and the respondents/Authorities had become functus officio of the matter to reconsider the case of the petitioner and the subsequent decision of the Discipline Committee communicated to the petitioner on I7‑10‑1997 is void and without lawful authority. Further argued that subsequent decision of the Discipline Committee holding the petitioner as guilty and awarding penalty is void and without lawful authority as admittedly, the subsequent Discipline Committee was consisting of different members and the petitioner was never given any opportunity of hearing by the said Committee before reversing the decision of the earlier committee. Further the decision of the subsequent committee is violative of the Rules of the Board as well as the principle of natural justice as enunciated by the Hon'ble Supreme Court of Pakistan in the case reported as The University of Dacca through its Vice‑Chancellor v. Zakir Ahmad (PLD 1965 SC 90) and Hajjaj Jogezai v. Board of Intermediate and Secondary Education, Lahore (1998 CLC 95). The learned counsel further argued that the decision of the Appeal Committee communicated to the petitioner vide order, dated 6‑12‑1997 is also void and without lawful authority being the superstructure raised on a void order. In this respect, the learned counsel for the petitioner has placed reliance upon the judgment reported as Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104).

4. On the other hand, the learned counsel for the respondents has argued that the decision of the Discipline Committee communicated to the petitioner on 23rd of August, 1997, whereby, he was exonerated was contrary to the record, hence, it did not create any right in the petitioner. Further argued that the petitioner has sought an equitable relief while he has not approached this Court with clean hands. Further argued that the allegation that Answer Sheet was written by two different handwritings, has not been specifically denied by the petitioner in his own memo. of appeal filed before Appeal Committee hence, it should be presumed that he is responsible for interpolation and punishment awarded to him is in accordance with law, equity and justice. In this respect, the learned counsel for the respondents has placed reliance upon the judgment reported as Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore and another (1977 SCMR 213).

5. I have considered the arguments of the learned counsel for the parties. Admittedly, the petitioner had been exonerated by the Discipline Committee and its decision was duly communicated to the petitioner, hence, the same had attained finality and had created a right in the petitioner. Further, it is not denied that the second Discipline Committee, to whom allegedly the matter was referred by the Chairman, did not provide any opportunity of hearing to the petitioner before finding him guilty and awarding punishment, hence, the decision of the second Discipline Committee is void and without lawful authority. It is well‑established law that principle of natural justice is to be read in every statute in particular in the disciplinary action before, awarding the penalty, the accused has a right of hearing. This principle of law is as old as the birth of "Adam" and it has been recognized by our own Courts hence the same could not be violated and taken away. Thus, the decision of the second Discipline Committee communicated to the petitioner on 17‑10‑1997 is nullity in the eye of law being void and without lawful authority. Furthermore, the decision of the Appeal Committee is also void and without lawful authority as the same is the superstructure built upon the void proceedings taken by the second Discipline Committee. The case‑law relied upon by the learned counsel for the petitioner is very apt to he situation while case‑law referred by the learned counsel for the respondents is distinguishable as in that case, the petitioner had been given full opportunity of hearing at all stages.

6. In the circumstances, this Constitutional petition is allowed and the decision of the. Discipline Committee communicated to the petitioner vide memo., dated 17‑10‑1997 and the order of the Appeal Committee communicated to the petitioner, dated 6‑12‑1997, are hereby declared as void and without lawful authority. The respondents are hereby' directed to declare the result of the petitioner within a fortnight on the basis of award. In the circumstances of the case, this Constitutional petition is accepted with costs. . H.B.T./M‑186/L Petition accepted.