1994 PLP 1580 (CLC)

This writ petition has been filed against the order dated 29‑8‑1993/ 7‑9‑1993 of disciplinary committee of the Board of Intermediate and Secondary Education, Multan, whereby the petitioner has been disqualified from appearing in the next two F.Sc. examinations which decision was upheld by the appellate Committee and his appeal was dismissed vide order dated 19‑10‑1993/26‑10‑1.

2. The brief facts of the case are that the petitioner, a student of F.Sc. appeared under Roll. No. 1609 in the Annual Examination 1993 and was charged for adopting unfair means during the course of said examination for the allegation that he drew diagrams with black ink on pages 5 to 7 and 10 of the script in the subject of Biology Paper II with the intention to disclose his identity. A charge‑sheet was issued to him for the violation of Rule 7 (iv) and 7 (v) of the Boors Calendar, which reads as under: 7(iv) refusing to obey any instruction issued by the Board in connection with the conduct of the examination. 7(v) disclosing his identity or making peculiar marks in his answer book with a view to disclose his identity. The petitioner answered the charges through a written reply as under:‑ (a) During my Biology (Part 11) Paper, I was keeping two pens (one fountain pen to attempt paper and another ball‑point as spare). I attempted my paper with fountain pen, leaving space for the diagrams which I thought that I would draw after I had completed my written portion. (b) After attempting written portion of the paper, I found my fountain pen empty whereas diagrams for the attempted questions were yet to be drawn. (c) I took out my spare pen (ballpoint) for making diagrams. I found that I had kept a spare pen which contained black ink instead of blue. As the time was running short, therefore, I drew the diagrams with black ink. The petitioner appeared in person before tile Disciplinary Committee on 29‑8‑1993 which having not found the explanation of the petitioner satisfactory after providing personal hearing held him guilty of the charge. The Appellate Committee taking the view that despite knowledge of the instructions on the subject the petitioner used unauthorised ink in the examination, dismissed his appeal. The Disciplinary Committee gave the following reasons for arriving at the conclusion for taking action against the petitioner. The reasons given by the appellate Committee for dismissal of appeal of the petitioner were as under: The learned Legal Advisor for the Board on the strength of instructions in the case submits that factually a report was made by the concerned branch in the Board on noticing certain unusual features in the answer book of the petitioner tending to show or disclose his identity, amounting to adopt unfair means. The learned Legal Advisor on asking to show the benefit obtained by the petitioner by disclosing his identity or any report made, of his approaching to the, examiner, sub‑examiner or any person in the concerned branch for any favour has not been able to place on record any evidence in support of the action taken and even could not offer an oral explanation to justify the action except that violation of instructions is an offence punishable under the Rules.

3. The precise charge against the petitioner was that he with a view to disclose his identity made peculiar marks in his answer book in violation of the instructions of using a particular ink. The question here arises whether the instructions relied upon by the respondent for taking action against the petitioner by the use of word was a sufficient warning to the student for the penalty to be awarded in case of violation of these instructions. The answer is in the negative. The instructions in question did not contain the requisite warning. A student in the examination Hall is always anxious to complete his paper and the use of different ink, in emergency, if the prescribed ink is not readily available to him, it cannot ipso facto be taken an evidence of unfair means. In such circumstances, there can be a little doubt in the bona fide of the student and there being the possibility of correctness of the explanation given by the petitioner for use of different ink in absence of any evidence produced to the contrary, the inference of guilt drawn was not justified. It is to be observed that decision of disciplinary committee and order of appellate Committee is not based on any evidence but on presumption. The conclusion of the two Committees on the basis of admission of the petitioner of use of different ink in good faith may be based on strong suspicion of bad intention but it is well‑settled that mere suspicion, however, strong may be is no substitute of the proof. The Hon'ble Supreme Court in PLD 1971 SC 838 held: "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 forum, while dealing with valuable rights and privileges of an individual can snatch them away on conjectural grounds, even through 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 case, apart from the fact that the candidate's marks were increased by tempering with the record, and he was the beneficiary thereof, there was no evidence at all to connect him with bringing about that result. The mere fad that the marks had been inflated and the candidate stood 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 could be no more than a mere conjecture. An equally convincing hypothesis could be that his father or some other relation may, in league with the concerned officials of the Board, had arranged to temper with the appellants' result sheet without the letters 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, it was 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 incharge of the records, and who had access to them, should have probed to find out the truth. On the plane of mere conjectures, one is left with the feeling that the appellant might have been guilty or he might have been innocent,‑and it is dangerous to convict a man and rob him of his rights when the probabilities are equally balanced either way. It was also possibly true that no positive evidence could have been adduced to prove the candidate's guilt in manipulating his result by forgering the records, and the matter thus remained in the realm of inferences." The penal action against the petitioner was necessarily to be taken on the basis of positive proof and not suspicion and presumption of guilt. The rejection of explanation of the petitioner without bringing on record any positive proof establishing the charge of using the black ink in the answer book with the intention to disclose the identity was not proper and legal. Before awarding punishment to a student for violation of the rules on the subject, there must be sufficient material to found him guilty in absence of which the penal action can have no legal sanctity behind it. The upshot of the above discussion is that the impugned action taken against the petitioner by the Disciplinary Committee and upheld by the appellate Committee of Board of Intermediate and Secondary Education, Multan are declared to be without lawful authority and of no legal effect. This writ petition is accepted with no order as to costs. AA./N‑240/L Petition accepted.