1980 PLP 1336 (CLC)

13. It was further argued that no witnesses were examined in the presence of the petitioner and in fact no witness appeared to support the allegations before the Discipline Committee and that the petitioner had no opportunity to controvert the evidence used against him either by cross examining the alleged witnesses or by producing witnesses in rebuttal: In short, the contention of the learned counsel for the petitioner is that the entire procedure followed by the two Committees is utterly contrary to the recognized and well-known principles of natural justice governing such proceedings.

14. An examination of the record does not show that any evidence was recorded in the presence of the petitioner, nor does it show that the petitioner was allowed to controvert the allegations against him by cross examining the witnesses on the basis of whose statements the petitioner was punished or to lead evidence in rebuttal. It cannot be denied that disciplinary action involving moral turpitude can be of severe consequence to the future career of the student proceeded against. I

5. At this stage, it will be appropriate to notice the preliminary objections raised by the respondent. According to the respondent, the Discipline Committee being a domestic forum is free from fetters and formalities of judicial trial, that if the proper procedure is followed by a domestic tribunal its orders cannot be challenged in writ proceedings and that it was not necessary for the tribunal to have served a charge-sheet or given an- opportunity to examine witnesses or cross-examine witnesses in the presence of the accused student. The superior Courts have on many occasions examined the nature of the jurisdiction exercised by disciplinary forums, and for the purpose of determining the issues raised in this petition, it would be of assistance to notice some of the leading pronouncements on the subject.

16. In University of Dacca v. Zakir Ahmad (P L D 1965 S C 90) the respondent had been expelled for a period of two years by the University on account of disturbances which took place at the Convocation. He had been named as a person involved in the said disturbances. Before the Supreme Court it was argued on behalf of the University, that in matters of internal discipline in educational institutions, the rule of audi alreram partem is not applicable, and that in any event where this rude is not applied, the superior Courts should exercise their jurisdiction in favour of the educational institution. Repelling these contentions it was observed by the Supreme Court :- "that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness ...... From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered -to take decisions after ex post facto investigation into facts which would result in consequences 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 the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case. What these principles of natural justice are it is not possible to lay, down with any exactness, for they have been variously defined in various cases Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the `elementary and essential principles of fairness' as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be giver, a fair opportunity to make any relevant statement putting forward his own case and "to correct or controvert any relevant statement brought forward to his prejudice". 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 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. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be effected to correct or contradict any relevant statement prejudicial to him. In other words, "in order to act justly and to reach just end by just means `the Courts insist that the person or authority should have adopted the above "elementary and essential principles" unless the same had been expressly excluded by the enactment empowering him to so act. In saying this we are not unmindful of the necessity of maintaining discipline in educational institutions or other institutions or depart ments where the maintenance of discipline is essential for the orderly conduct of the institution or department concerned, nor are we unmindful of the fact that persons in charge particularly of educational institutions must be given the fullest authority to correct those placed in their charge in the same manner as a parent or guardian would be able to do. But even, so, we find it difficult to accept the contention that they must also be freed from the necessity of acting in a manner which excludes every reasonable possibility of unfair acti3n being taken. This can only be achieved observing certain formalities which have been designed to assure the ,minimum essential principles of justice and fairness, by at least telling the person sought to be punished or condemned what are the allegations against him and by giving him a fair opportu nity to correct or contradict any relevant statement to his prejudice. In the present case, it is patently clear that this was not done. The respondent was afforded no opportunity of any kind whatsoever to submit any explanation or put forward his version."

17. In Abdus Saboor v. Karachi University (P L D 1966 S C 536), where on the complaint of the Examiner that the appellant had used unfair means in the examina tion, the result of the appellant was withheld and later he was debarred from appearing in any examination of the University and from admission to any class in the University for a period of two years, the Supreme Court observed.:- "the principle embodied - in the maxim audi alteram partem has been applied by this Court in other cases where orders passed by the 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 principles 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- It was a very serious matter disqualifying him from appearing in any University examination, or joining any University c4ass or college, for a period of two years. The stigma thus attached to his character, might dog his footsteps all his life. Before such a drastic step was taken, it was incumbent upon the University authorities to give an opportunity of showing cause against the proposed action, to the appellant and to afford him a' fair opportu nity of defence."

18. In Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore (P L D 1971 S C 838), in which on the allegation that marks actually obtained by the appellant in the Intermediate Examination had been altered from 533 to 64'3 marks the appellant was after enquiry disqualified for three years, the Supreme Court observed that :- "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 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."

19. In case of Federation of Pakistan v. Sardar Ali (P L D 1959 S C (Pak.)), where the Collector of Customs ordered confiscation of goods belonging to the respondent, the Supreme Court observed that :- , "Certain witnesses were apparently examined by the Intelligence Officer behind the back of the respondents who had no chance of cross-examining them to elicit facts in their own favour. The statements made by those witnesses were not even put to the respondents at any stage and we have it on the authority of' the learned counsel for the respondents that for the first time they became aware that any such statements had been recorded by a departmental officer, during the pendency of 'the writ proceedings to the High Court. We feel not a little disturbed that prejudicial action could be taken by the Customs Officers in a matter touching valuable rights to -property as well as the personal liberty of the subject, on the basis of a private enquiry in which the person concerned was not allowed to participate- These were quasi-judicial proceedings of which the substance of a fair hearing and opportunity for defence at the appropriate stage are essential incidents.

20. In Muhammad Bashir v. University of Punjab (P L D 1967 Lah. 1204) the petitioner was found to be in possession of certain material in the examination hall and was disqualified for three years. It was observed :- "Another important principle of natural justice is that a delinquent must be given an opportunity - to produce evidence in his defence and refute the evidence produced against him and in the words of the Supreme Court in The University of Dacca through its Vice Chancellar and another v. Zakir Ahmad, he should be given an opportunity to correct or controvert any relevant statement brought forward to his prejudice."

21. In Abdul Majid v. Disciplinary Committee of the University of the Punjab (P L D 1970 Lah. 416), where the petitioner who allegedly confessed to copying in the examination hall and latter denied the allegation, was disqualified for three years, it was contended on behalf of the University that it would be extremely inconvenient for the University Authorities to examine witnesses in the presence of candidates or to permit candidates the facility to cross-examining them. Repelling this contention it was observed that :- "It pained us to hear an argument from the bar which is to the effect that valuable rights of citizens can be taken away without even bearing them and permitting them to test the credibility of witnesses simply because it would cause inconvenience to certain authorities. We have always been told that convenience and 'justice have never been on speaking terms with each other. We may say it with all the emphasis at our command that it is not possible for us to permit justice to be sacrificed at the altar of convenience. If during the dispensation of justice the giving of a fair opportunity to a person accused causes inconvenience to the accuser, then the former cannot be sacrificed at the altar of the latter. If it is a question of convenience alone, the inconvenience caused to the accused in the absence of a fair opportunity, is much greater the so-called inconvenience caused to the accusers in producing the witnesses for cross-examination."

22. In this very context reference can also be made to certain foreign judgment on this subject where the very principles identified above have been examined and approved. Reference : University of Ceylon v. Fernando (19 11 A C 179), Board of Secondary Education v. Rice ((1969) 1 A E R 631), Local Board v. Arlidge (1915 A C 120), Errington v. Minister of Health ((1935) 1 K B 249), General Council of Medical Education v. Spakman (5).

23. Respondents counsel relied on Akhtar Ali v. University of Punjab, (6) but in that case the Court found that the Discipline Committee had afforded more than adequate opportunity to the student and also it could not be said that there was no material before the Committee to hold the appellant guilty. This judgment, therefore, is not attracted to the facts of this case. Counsel also placed reliance on a judgment of the Sind High Court in the case of Quadri Brothers v. ' Sind Employees etc. (P L D 1977 Kar3112) in which it was held that when adequate opportunity had been given at the appellate stage, the requirements of natural justice are satisfied. This citation again is not at all attracted to the facts of this case. Learned counsel also relied on M. Mahadevan v. K. Anandrajan (1974 Law Notes 483 (P C)) which was a case involving disciplinary action against a minor by the Headmaster of his School, where it has been observed that natural justice requires a person charged with making decisions to act fairly, but that it would be inappropriate to model the procedure on that of a criminal trial. This is so, but the minimum requirements which the procedure should satisfy have been clearly identified in the judgments of the Supreme Court of Pakistan, noted above. ,

24. It will thus be seen that in disciplinary proceedings involving students, the principles of natural justice have to be observed, in the absence of any express words in the enactment to the contrary. As the person effected must at least be made aware of the nature of allegations against him, he should be given fair opportunity to make any relevant statement putting forward his own case, and given a fair opportunity t correct or contradict any statement to his prejudice, he must be afforded a fair opportunity of defence, and unless there is legal proof the allegation cannot be taken to be proved, the decision must rest on legal evidence, the accused should have a chance to cross-examine the witnesses deposing against him and the delinquent must be given an opportunity to produce evidence in his defence. In the above view of the law, the preliminary objections raised by the respondent have no force and are rejected. It now remains to examine the validity of the proceedings and the impugned orders in the light of the law declared.

25. An examination of the record of the proceedings before the Discipline Committee and the Committee of Appeal shows that the wit nesses were not examined in the presence of the petitioner and further that apart from the initial report of the Centre Superintendent, even the statements of the invigilation staff were not recorded by the Discipline Committee. It merely contented itself by relying on the report of the Superintendent of the Examination Centre and penalized the petitioner on that basis, notwithstanding the denial by the petitioner of the allegations contained in the charge-sheet. It these circumstances, it is apparent beyond doubt that the minimum procedural and substantive requirements of the principles of natural justice repeatedly identified and declared by the superior Courts have not been met, and as such the impugned order of the Discipline Committee and the Committee of Appeal cannot sustained.

26. It is accordingly declared that the order of the Discipline Committee dated 18th July, 1979 debarring the petitioner from passing 'he examination in which he had appeared and also from appearing in three subsequent examinations, and the order of the Appeal Committee dated 1st September, 1979 upholding the order of the Discipline Committee are without lawful authority and of no legal effect.

27. However, before taking any further action in the matter, the respondent should take into consideration the fact that the petitioner appeared in the subsequent examination .in the three subjects without let or hindrance and except for the Islamiyat compulsory paper, there is no allegation of unfair means in the other two papers and for that he has suffered for more than two years. Indeed learned counsel for the Board stated that the Board would be willing to consider the possibility, of declaring the result in the papers of Islamiyat elective and Civics, and allowing the petitioner to sit in the next examination in the Islamiyat compulsory paper. This is a matter for the Board to consider and determine in keeping with all the attendant circumstances. With these observations the petition is accepted. In the circumstances of the case, there will be no order as to costs. S. A.H, Petition accepted,