P L D 1971 Lahore 972 (PLP)

3. So far as the allegations against the conduct of Muhammad Akram are concerned, these cannot be enquired into as Muhammad Akram has not been impleaded in the present proceedings. After all the allegations in question tantamounted to imputing personal bias against Muhammad Akram and consequently it was the duty of the petitioner to have impleaded him so as to afford him opportunity to explain his position. Since Muhammad Akram is not a party to the present proceedings we cannot possibly enquire into his conduct in his absence.

4. We are also not impressed by the grievance that the petitioner was condemned unheard. The admitted position is that he was served with the charge‑sheet (to which he submitted his written explanation) and also personally heard by the Disciplinary Committee of the Board. It is true that in ground (a) of the petition he has alleged that his request to cross‑examine the witnesses was turned down by the Disciplinary Committee, but this allegation was denied by the respondents in their parawise comments. The parawise comments were received in the Registry of this Court on 13‑1‑1971, but the petitioner has not filed any rejoinder thereto, nor has his learned counsel challenged their correctness before us during the course of arguments. From this it would follow that the petitioner was satisfied with the stand taken by the respondents and consequently there is no option left but to hold that he had made no request for summoning or cross‑examining the witnesses.

5. Assuming, however, that the respondents had examined certain witnesses in the absence of the petitioner even then his grievance appears to be more technical than real. Tile admitted position is that after he was caught in the examination hall, with two continuation sheets, he admitted his guilt in writing a position which he did not deny even in his written explanation to the charge‑sheet, although he alleged that he was made to confess under duress. In these circumstance it was the burden of the petitioner to show that the confessional statement was got recorded from him under duress but he failed to discharge that burden. Not only this but he has not even impleaded Muhammad Akram, the Superintendent of the Examination Centre, in the present proceedings who is alleged to have concocted the entire case against him and consequently no serious notice can be taken of his grievance. However, in order to satisfy ourselves whether the grievance of the petitioner had any substance we pointedly questioned his learned counsel whether the petitioner had lodged any protest with the authorities that he had been made to admit his guilt in writing under duress, but he frankly replied in the negative. This conduct of the petitioner, which substantially corroborates the case of the respondents, brings into sharp focuses the question of his own bona fides for which he has furnished no explanation. Had there been any truth in his said allegation we have no doubt that he would have promptly protested against the conduct of the Superintendent of Examination Centre to the authorities. But the fact that he slept over the matter for more than about one‑and‑a‑half months until he was served with the charge‑sheet is a circumstance which belies his stand which he has now taken before us in the present petition.

6. The learned counsel, however, invoked in aid the ratio of the judgment in the case of Malik Abdul Majid v. Disciplinary Committee of the University of the Punjab, Lahore and another (P L D 1970 Lah. 416), but it does not help the petitioner. Unlike the present case, in which the petitioner had admitted to have made the confessional statement albeit under duress, the petitioner in that case had totally denied all the accusations made against him in the charge‑sheet. Not only this but his request was also turned down by the Disciplinary Committee for cross‑examining the witnesses, whose evidence had been recorded in his absence, .on the untenable ground that if any such permission was given to the petitioner it would scare away people from becoming Invigilators in the Examination Halls. The other circumstance by which the learned Judges of the Division Bench in that case were impressed was that the petitioner had filed the affidavits of the same Invigilators, who had allegedly deposed against him in the Departmental inquiry, in which each one of them confirmed that the confessional statement was got recorded from the petitioner under duress, that they had not seen the petitioner in possession of any paper or swallowing it and further that their statements were also got recorded by the Superintendent of Examination Centre under compulsion. It was in these circumstances that their Lordships quashed the impugned order of the University authorities holding that the petitioner bad been condemned unheard. We are in respectful agreement with the said decision but upon the facts of the present case it is clearly distinguishable. The case of the petitioner appears to be covered by the Supreme Court judgment in the case of University of Dacca v. Zakir Ahmad (P L D 1965 S C 90) in which their Lordships were pleased to make the following observations:‑ "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." And further "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 affected to correct or contradict any relevant statement prejudicial to him. In other words, in order to act justly and to reach just ends 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". These principles appear to have been fully observed in the present case. The petitioner had appeared before the Board in person, admitted to have signed the written confessional statement, but failed to substantiate his allegations that he had confessed under duress. In other words he was given a fair opportunity to correct or contradict his written confessional statement and, therefore, he cannot now complain that he had been condemned unheard.

7. The learned counsel next attempted to attack the impugned order on the ground that there was no power in the Ordinance to inflict the type of punishment awarded to the petitioner and consequently the rules and Regulations under which he was punished are ultra vires. We are not impressed by this argument. Section 11 of the Ordinance, which contains the requisite power, in relevant parts reads:‑ "11(1). Subject to the provisions of this Ordinance a Board shall have power to organize, regulate, develop and control intermediate Education and Secondary Education. (2) In particular and without prejudice to the generality of the power conferred by the preceding subsection, a Board shall have the power‑ (i) to hold and conduct all Examinations pertaining to Intermediate Education, Secondary Education, Pakistani and classical languages, and such other examinations as may be determined by Government; (iv) to lay down conditions for admission to its examinations, to determine the eligibility of candidates and to admit them to such examinations. (xxi) to do all other acts necessary for carrying out the purposes of this Ordinance." By reading these provisions together it is clear that the Board is invested with the necessary power to hold and conduct, among others, examinations pertaining to Intermediate Education and for that purposes to lay down conditions, determine the eligibility of candidates with a view to admitting them to such examinations and to do all other acts necessary for carrying out the purpose of the Ordinance. These powers are wide enough 1 to include the power to take disciplinary action against the students for unfair means and to debar them from appearing in examination for certain period. For this purpose Regulations have been framed under the authority of the Ordinance out of which Regulation 8 appears to cover the present case which in relevant parts reads:‑ "

8. A candidate shall be disqualified from passing the particular examination and from appearing in the immediately following three examinations (annual and supplementary) if he is found guilty of: (v) smuggling in an answer‑book or a continuation sheet into or out of the examination hall. The allegation against the petitioner, which has already been noted, was that he was found in possession of two continuation sheets for which he had no explanation. In other words the allegation against him tantamounted to smuggling these sheets into the examination hall and consequently his case was fully covered by the above Regulation under which he was found guilty and debarred from appearing in four examina tions. Before ending this discussion we might refer to a judgment of the Lahore High Court in the case of Muhammad Saddiq v. The University of the Punjab (P L D 1954 Lah. 5) in which the expression "conduct of examination" had come up for discussion. And it was held that "conduct" would include "misconduct" and consequently the delinquent student would be liable to the various penalties mentioned in the Regulations. We respectfully agree with the view taken in that judgment and consequently would not like to prolong the discussion in regard to the scope of the above provision of the Ordinance and the Regulations made there under.

8. The third grievance of the petitioner is also without force as there is no right of appeal provided by the Ordinance or the Regulations made there under against the findings of the Disciplinary Committee. The only power by which the findings E of the Disciplinary Committee can be reviewed is contained in Clause 17 of the Regulations (See Chapter VI of the Calendar of the Board of Multan, 1969‑Edition) by which the Chairman is empowered, in case the decision of the members of the Committee was not unanimous, to decide the case himself or to refer it to the Committee for fresh decision. Similarly by the proviso appearing under the said Regulation an affected candidate has been also given the right to bring to the notice of the Chairman, within 30 days of the receipt by him of the decision of the Disciplinary Committee, any new facts which might have influenced the decision of the Committee had these been brought to its notice originally and in that event the Chair man is empowered to direct that these facts should be reduced to writing and placed before the Committee for consideration and fresh decision. It would be seen that this power of the Chairman is in the nature of review power which can be invoked only under specified conditions. It is not the case of the petitioner that the members of the Disciplinary Committee were not unanimous in their decision holding him guilty or that after the decision of the Committee was communicated to him he had brought any new facts to the notice of the Chairman which might have influenced the earlier decision of the Com mittee. The representation of the petitioner to the Chairman (Annemare "B") is on record in which he has simply reiterated the same allegations which he has been made in his explanation to the charge‑sheet. All these allegations were considered by the Disciplinary Committee and rejected and, therefore, these allegations could not constitute new facts so as to entitle the petitioner to invoke the review jurisdiction of the Chairman. In those circumstances the petitioner could not possibly insist to be heard before his representation was rejected by the Chairman. In view of this discussion we find no force in this petition which is dismissed. But under the circumstances there will be no order as to costs. K. B. A. Petition dismissed.