PLD 1996 Supreme Court 709 (PLP)

(iv) Any other members to be co‑opted by the Committee with the approval of the Vice‑ Chancellor." The acts of unfair means are defined in rule 6 of the Rules as follows: ‑‑‑ ACTS OF UNFAIR MEANS: A candidate who; (i) is found having in. his/her possession or accessible to him, papers, books or notes which might possibly be of assistance to him; (ii) removes a leaf from his/her answer book; (iii) makes an appeal to the examiner for additional marks, relaxation etc. in his/her answer book; (iv) uses abusive or obscene language in his/her answer book. (v) makes false 'representation in his/her application for or any document produced by him/her; (vi) forging another person's signature on his/her application/admission form, answer book or on any documents‑, (vii) refuses to obey the supervisory staff in the Examination Hall; (viii) discloses his/her identity or marks/peculiar marks in his/her answer books; (ix) removes his/her answer book outside the Examination Hall or smuggles in. the Examination Hall during the examination or immediate after it any material termed unfair as per explanation given above; (x) giving or receiving assistance to copy each other answer books or attempt to use any other unfair means; (xi) communicates or attempt to communicate with examiners with object of influencing them in the award of their marks; (xii) creating of d disturbance of any kind during the examination or misbehavior in or around the Examination Hall; (xiii) copying from any paper, book or notes; (xiv) makes deliberate arrangements to cheat in the examination; (xv) possesses of fire‑arms or anything capable of being used as a weapon of offence in or around the Examination Hall; (xvi) assaults or threatens to assault any person of the supervisory staff of an examination staff; (xvii) any other act which the Committee may, in its opinion consider As unfair means." The penalties/powers of the Committee are contained in rule 7 of the Rules as under:‑‑‑ . PENALTIES/POWERS OF COMMITTEE: (1) If a candidate is found guilty of the use 6f unfair means‑‑ (i) as in clause 6, sub‑clause (i) his/her that examination will be cancelled; (ii) as in clause 6, sub‑clauses (ii), (iii) and (iv) his/her that answer book(s) shall be cancelled; (iii) as in clause 6, sub‑clauses (v) to (xiv) he/she shall be disqualified for a period of two years to appear in any examination; (iv) as in clause 6, sub‑clauses (xv) and (xvi) he/she shall be disqualified for a period of 5 years or more to appear in any examination. (2) The Committee in addition to the, above given penalty may also imposed fine up to any limit but not exceeding Rs. five thousand on a candidate found guilty for acts of unfair means/misconduct. (3) If an impersonator is on rolls of recognized institution, the University may cancel his/her diploma or certificate and take such other action it may‑deem fit. (4) Notwithstanding anything to the contrary in these Rules, a candidate or any impersonator on the expiry of three years including, the year of the examination in connection with which ,he/she was declared to be not a fit and proper person to be admitted to any future examination may, as a special case, be exempted by the University of Peshawar from further operation of relevant rule. (5) Notwithstanding anything to the contrary in these Rules, the Vice Chancellor shall have the power to award suitable punishment without reference to the Unfair Means Committee to any candidate or to any student on the rolls of a recognised institution who creates disturbance of any kind during the examination or otherwise misbehaves in or around an Examination Hall. " From reading of rule 7, ibid, it is quite clear that for each specified act of unfair means, a particular punishment is prescribed under the Rules. For instance the cancellation of the examination under Rule 7(l)(i) is applicable if the act of unfair means is covered by Rule 6(i) of the Rules. Similarly, for an act of unfair means falling under rule 6(ii) (iii) and (iv), the penalty/punishment prescribed under Rule 7 is that answer book shall be cancelled. In the same way, in respect of act of unfair means defined in rule 6, sub‑clauses (v to xiv) the candidate is to be disqualified for a period of two years to appear in any examination. The allegation against the appellant was that he solved the answer book outside the examination hall. This charge is covered' under Rule 6(ix) of the Rules for which the punishment prescribed under rule 7 (iii) was disqualification for a period of two years to appear in any examination. Mr. Sardar Khan, the learned counsel for the contesting respondents contended that the writing appearing in the document at page/36 of our file "This Exam is cancelled and also disqualified for next exam." in the column of the 'charge' is the punishment awarded to the appellant for the act of unfair means. It is difficult to accept this contention of the learned counsel. We have already reproduced the decision of the Committee signed by 3 members and Controller of Examinations. This decision of the Committee simply states that "punished as per three". Mr. Sardar Khan was unable to explain the meaning of the phrase used in the decision of U.F.M. Committee "punished as per three". However, if it is presumed that by referring to 'three', the U.F.M. Committee meant sub‑clause (iii) of Rule 7 (ibid), even then the endorsement in the column of charge', "this examination is cancelled and also disqualified for next examination" cannot be held to be in accordance with the decision of the U.F.M. Committee. Mr. Sardar Khan produced before us the original copy of the document at page 36 of the file and after going through this document, we are of the view that handwritten endorsement "this examination is cancelled and also disqualified for next exam." it is quite different from the writing which recorded the decision of the Committee in, the last column of the document at page

36. The endorsement "this exam. is cancelled and also disqualified for next exam." on the document at page 36, therefore, cannot be regarded as the order of U.F.M. Committee as it is neither in accord with the order of Committee on that document nor it is in conformity with rule 7 of the Rules.

6. We have also noticed that the order of Disciplinary Committee dated 10‑10‑1990 in the case was signed 'besides by its 3 members also by the Controller of Examinations as member of the Committee. It is surprising that the Controller of Examination who is member of U.F.M. Committee and was party to the decision dated 10‑10‑1990 was also a member of the Appellate Committee as he signed the decision dated 3‑11‑1990 alongwith its two other members Prof. Dr. Abdul Ghafoor and Dr. Nasim Siddiqui. No doubt the decision of Appellate Committee dated 3‑11‑1990 was set aside by the High Court and the case, was remanded for a fresh decision to the Appellate Committee but this Committee which decided the case afresh on 30‑3‑1991 was once again included the Controller of Examinations as one of its members. Besides the fact that presence of Controller of Examinations as member of Appellate Committee vitiated the order, there is another very serious objection to the constitution of Appellate Committee. The two members of the Appellate Committee namely, Prof. Dr. Nasim and Prof. Dr. Abdul Ghafoor were appointed by the Vice Chancellor of the University of Peshawar by order dated 22‑2‑1990. The appointment of above two members does not specify their period. The case of appellant is that during the course of hearing before the Appellate Authority after remand of the case by the High Court, one of its members (Dr. Abdul Ghafoor) as a protest resigned from the Committee on account of pressure being brought on him by the Controller of Examinations (respondent No.2). This allegation of the appellant is disputed in the comments filed on behalf of the University of Peshawar and it is contended that Prof. Dr. Abdul Ghafoor who is a Professor of Law College, resigned from the Appellate Committee on account of expiry of his term on 22‑2‑1992. Firstly, there is nothing on record to show that the appointment made by the Vice‑ Chancellor on 22‑2‑1990 vide Notification No. 1215/Acad‑I was for a period of one year. Secondly, even if it is assumed that Prof. Abdul Ghafoor had resigned on account of expiry of his term, the Vice‑ Chancellor re‑constituted/approved appointment of Dr. Muhammad Ali Khattak, Dean of Science, Prof. Dr. Lai Baha, Dean of Arts alongwith Controller of Examination as members of the Appellate Committee on 1‑4‑1991. Therefore, Dr. Muhammad Ali Khattak and Dr. Lal Baha could not participate in the deliberations of Appellate Committee held on 6‑3‑1991 and 30‑3‑1991. The decision of the Appellate Committee, therefore, stood vitiated both for the reasons of inclusion of Controller of (Examinations )Who was party to the decision under appeal before the Appellate Committee, as member of Appellate Committee and also for the reason that two of its members, namely, Dr. Muhammad Ali Khattak and Dr. Miss Lal Baha were appointed as members of the Appellate Committee after the date of the decision. The learned Judges of the High Court while dismissing the writ petition failed to take notice that the decision dated 30‑3‑1991 was delivered/given by the Appellate Committee which was wholly un authorised as according to Notification dated 1‑4‑1991 Dr. Muhammad Ali and Dr. Lal Baha became members of the Committee only on 1‑4‑1991 and the previous two members who were appointed members of the Appellate Committee on 22‑2‑1991 did not participate at all in the said Appellate Committee.

7. We would have normally remanded this case for a fresh decision by the Appellate Authority as we have reached the conclusion that the decision taken by the Appellate Committee on 30‑3‑1991 was invalid but in the circumstances of the case, we are not inclined to follow this course.

8. The Appellant alleged to have smuggled answer book of physiology in the Annual Examination of 1990 and this charge was proved before the U.F.M. Committee. However, from the order of U.F.M. Committee reproduced above, it is not possible to infer as to what punishment was awarded to appellant. Mr. Sardar Khan, the learned counsel, for the University, was also unable to explain the order of UFM Committee. The appellant failed in the annual examination in physiology and Anatomy. However, in the Supplementary Examination held in 1990 he passed in Anatomy 'but he was' caught using unfair means in the Physiology Paper. It is admitted before us that in the subsequent annual examination which was held by the University, the appellant was allowed to I he passed in the subject of Physiology. It is also admitted before us that after having passed' in the subject of Physiology as aforesaid, the appellant continued to attend the second professional classes of M.B.,B.S. and he finally qualified the M.B.,B.S, Examination. In these circumstances, we are not inclined to remand the case to Appellate Authority in the changed circumstances. We, accordingly, allow the appeal, set aside the impugned judgment, declare the orders passed by UFM Committee on 10‑10‑1990 and that of Appellate Committee as without lawful authority and of no legal effect. Before parting with the case we may me ‑‑‑‑‑‑ here that Mr. Sardar Khan, the learned counsellor the University argued that it is not possible for University Authorities to pass speaking and detailed orders in cases of unfair means which are nowadays, in great numbers. While we do not propose to lay down here as a rule that the University Authorities while deciding such cases must record detailed reasons for the conclusion, we cannot overlook C the fact that cases involving punishment of students have serious consequences on 'their career. Therefore, the orders passed by the University Authorities inflicting punishment on students must at least be intelligible showing application of mind and capable of, conveying' the intention of the Authority passing the order. We are constrained to observe that in tile case before us the order passed by U.F.M. Committee and the. Appellate Committee did not show application of' mind to the facts and circumstances of the case. With these D observations, the appeal is disposed of as stated earlier. M.B.A./A‑139/S Order accordingly