1998 PLP 95 (CLC)

6. The petitioner then filed a revision petition which was placed before the Revision Committee which again heard the petitioner as well as the Centre Superintendent and upheld the decision of the Discipline Committee and of the Committee of appeal. This obliged the petitioner to invoke the extraordinary jurisdiction of this Court.

7. Comments of respondents Nos.l and 2 were considered. The learned counsel for the petitioner, however, urged with vehemence that the plea of the respondents with regard to the recovery of some objectionable material from the petitioner was totally inconsistent and there were three versions of the same incident. He also maintained that the contentions of the petitioner were not considered in their right perspective by all the three forums. The writ petition was, therefore, admitted to regular hearing. ??????????????????????????????????????????????????????????????????????????????? ???????????????????????????????????????????????????????????????????????????????????????????????????????????????????????

8. While addressing his arguments, the learned counsel for the petitioner took me through Form No.S.F.8 with regard to the use of unfair means, Cope Annexure "B", and pointed out that in Column No.6 which is to indicate the place from where the objectionable material was recovered, that is to say, whether it was recovered (i) from the pocket of the petitioner. (ii) from the hand, (iii) from inside the table, (iv) from above the table, (v)) from the answer book or from near or about the seat of the candidate the words "Jawabi Copy' were first written by the gentleman preparing this document which was subsequently scored off and the following words were instead taker down:‑‑ ????????? He then referred to the entries overleaf/on the back side of the said Annexure where under the signatures of the Deputy Superintendent Riaz Alimad Khan there is the following writing: ??? This writing shows that this Deputy Superintendent had caught hold of the candidate using unfair means. The entry beneath which was supposed to be filled in by the Superintendent himself indicates that the candidate refused to make a statement and that the material was recovered from inside the socks during the search. The learned counsel for the petitioner urged vehemently that these were three versions with regard to the recovery of objectionable material. Firstly it was claimed that the objectionable material was recovered from the answer book which stand was perhaps patently wrong and as such it was claimed that objectionable material was recovered from the sock on the leg. The Deputy Superintendent, who according to this Form, had recovered the objectionable material claimed that it had been recovered from the pocket of the candidate but the Superintendent again mentioned that it was recovered from inside the sock during the search. In the opinion of the learned counsel for the petitioner, the very inconsistent versions of the Superintendent/Deputy Superintendent make the case of the Board, of totally doubtful import. According to him, the authorities concerned failed to appreciate the allegation of the petitioner that he wore a Chappal and did not wear the socks on the date, the incident had allegedly taken place.

9. I sent for the objectionable material, allegedly recovered from the petitioner. It consisted of a small piece of paper which bore no signs of its having been hidden in the socks. The learned counsel for the respondents also could not help me in seeing any folds/turns/signs to indicate that this very paper had been recovered from the socks of the petitioner. The record prepared in this behalf is totally silent as to from which sock, left or right, the objectionable material was recovered. The socks can obviously not be worn on the leg/legs, as rightly contended by the learned counsel for the petitioner.

10. It is also worthwhile to note that the petitioner placed on record two affidavits of Moiz‑ud‑Din Ahmad son of Naseer‑ud‑Din Ahmad and Shahzad Nawab son of Sher Nawab according to whom they had also taken the said paper in English "A" being the students of Government College, Lahore on that very date with the petitioner and no such incident had taken place at the said Centre. The learned counsel for the petitioner has relied on Muhammad Umer v. Government of Sindh and others PLD 1995 Kar. 59 for asserting that failure of the respondents to file counter‑affidavits entitles the petitioner to a presumption by this Court that his version was true.

11. Referring to the statement of the Superintendent made by him before the Discipline Committee on 21‑8‑1996, the learned counsel for the petitioner contends that in spite of the fact that the members of the Discipline Committee had taken note of the allegation of the petitioner that the Superintendent felt annoyed because the petitioner wanted a seat below the ceiling fan, as is evident from the proceedings carried out by the Discipline Committee on 16‑7‑1996, copy available at page 12, it was not considered worthwhile to inquire about it from the Superintendent. Similarly, this matter was not taken into consideration by the Committee of Appeal or by the Revision Committee, who once again recorded the statement of the Superintendent. According to him, it is not clear as to what pros and cons of the matter had been taken into consideration by the Revision Committee while rejecting his revision and holding that. some objectionable material had been recovered from the petitioner for which he was rightly punished.

12. The learned counsel for the respondents could not meet these contentions successfully but urged that it was not essential for the Discipline Committee to follow the legal or procedural formalities while dealing with a student for misconduct or indiscipline as held in Ahmad and 3 others v. Vice?-Chancellor University of Engineering and Technology and another PLD 1981 SC

464. Placing reliance on Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner and others PLD 1964 SC 260, he also contended that where a superior Court calls for the records of judicial or quasi judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the Court should not, as a rule, substitute its own decision and the case should be returned to the authority concerned for decision in accordance with law after quashing the order complained against. Again on the strength of Board of Intermediate and Secondary Education, Lahore and another v. M. Massadaq Naseem Sindhu PLD 1973 Lah. 600, he urged that this matter should not have been dragged to the Court of law.

13. The learned counsel for the petitioner has, on the other hand, sought assistance from Fazal Karim Chaudhary v. The Punjab University PLD 1955 Lah. 404, Sirajul Islam v. University of Peshawar and 2 others PLD 1980 Pesh. 158 and Muhammad Tariq v. Board of Intermediate and Secondary Education, Lahore and another 1990 CLC 898.

14. In the first referred judgment, it has been held that a writ of mandamus may be issued against a University where it exceeds its statutory power. In PLD 1980 Pesh. 158, it was held that functionaries of Universities and other statutory authorities were amenable to the writ jurisdiction of the High Court. In the last mentioned judgment 1990 CLC 898, which case had similar/identical facts, it was held that even if the allegations were assumed to be correct, in the facts and circumstances of the case, the Superintendent was equally guilty of contributory negligence and the petitioner had been condemned for the charges which had not been disclosed with particularity which amounted to violation of basic principles of natural justice and was also discriminatory.

15. After giving my earnest consideration to the facts and circumstances of the case in hand, I have no doubt in my mind that a writ of mandamus can be issued to declare the result of the petitioner because the allegations against him could not be established with particularity. The petitioner did rely on two affidavits of his co-candidates but the respondents failed to file any counter affidavits. Above all, although educational institution is neither required to act as a Criminal Court nor is bound to follow the legal or procedural formalities while dealing with a student for misconduct and indiscipline and he is not to be treated as an ordinary criminal yet during the investigation and inquiries the attitude of all concerned should not be of adversaries and should not become antagonistic as held in PLD 1981 SC 464 relied on by the learned counsel for the respondents. The claim of the petitioner put-forth by him repeatedly that he did not indulge into any illegal practice nor did he use any unfair means was not 1 taken into consideration by the authorities concerned sympathetically and objectively. The record of the inquiry proceedings which has been perused by me with the assistance of the learned counsel for the respondents is totally silent as to whether the members of the Discipline Committee looked into the assertions of the petitioner dispassionately and as to whether the Superintendent was asked to reconcile the various versions of the same incident in Form No.S.F.8. It is also surprising that the Superintendent who claimed before the Revision Committee that it was always his practice to put the Roll Number of the candidate indulging in unfair practice and then put his signatures on the objectionable material, did not do so in this case and his reply in this behalf simply was that he failed to do sol inadvertently. He, thus, did not do his job properly and diligently. I have, therefore, come to the conclusion that the impugned order is not sustainable in law and the same is accordingly declared as without lawful authority and of no legal effect. The result is that accept this writ petition and direct respondent No. 1 to declare the result of the petitioner on the basis of Annual Intermediate Examination held in 1996, forthwith. There shall be no order as told costs. A.A./H-37/L ?????????????????????????????????????????????????????????????????????????? Petition accepted.