P L D 1987 Karachi 688 (PLP)

(2) Amar Lai v. Board of Intermediate and Secondary Education Sukkur 1986 C L C 1848. (3) Qamar Ali Baloch v . Principal Dawood,College 1987 C L C 371. (4) Sayeeduddin v. University of Karachi 1987 C L C 381. (5) Dawarkadass v. Province of Sind' 1986 C L C 1917.

5. In P L D 1976 Kar. 481, a Division Bench of this Court declared the punishment inflicted on the two petitioners in that case as illegal on the ground that there was violation of the principles of natural justice inasmuch as full opportunity for defending themselves had not been given to the petitioners and also for the reason that the opinion of the Sub-Committee rested on suspicion without there being any legal proof. In P L D 1971 S C 838, Supreme Court of Pakistan observed that domestic Tribunals like a University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial but from this it did not 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. It was also observed by the Supreme Court that conjectures and suspicions cannot take the place of proof and a Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence. In 1987 C L C 381, a Division Bench of this Court exercising constitutional jurisdiction declared as illegal the action of Karachi University whereby the admission of the petitioner, a candidate for M. Phil/Ph. D, was cancelled on his alleged mis-behaviour without giving him any prior show-cause notice and without asking him to submit his explanation. In 1987 C L C 371, another Division Bench of this Court held that the order of Controller of Examinations cancelling the result of petitioners' examination could not be sustained as no prior show-cause notice was given and also for the reason that there was no legal evidence to justify the conclusion reached by the Controller of Examinations; In 1986 C L C 1917, another judgment of a Division Bench of this Court, the action of the Board was upheld on the ground that proper opportunity was given to the candidate to defend himself.

6. In the instant case, there has been violation of principles of natural justice as neither a proper show-cause notice was given to the petitioner nor she was given full opportunity to defend herself. In the show--cause notice, no details whatsoever are given to apprise the petitioner about the precise charge she was to face in the inquiry. If any copying material had been recovered from her, the show-cause A notice should have mentioned so and so also some description of such copying material. Without specifying in sufficient detail the precise charge against the candidate, how can the recipient of such charge sheet or show-cause notice expected to reply or defend herself properly. This would amount to denial of a full and complete opportunity to the candidate to defend herself, a mandatory requirement even in an inquiry by a domestic tribunal under the principles of natural justice.

7. Then there was no legal evidence on the basis of which the Disciplinary Committee could reach the finding that the charge against the petitioner had been established. From a perusal of the record relating to the inquiry, which has been made available by learned counsel for the Board, it appeared that adverse action has been taken against the petitioner on the ground that the petitioner had been caught with copying material in her possession while she was appearing in Zoology paper II on 13-5-1986. There was also an allegation, as it appeared on perusal of the inquiry papers, that she had also been caught with copying material on 6-5-1986 when she was appearing in Chemistry paper II but she was absolved of such charge. Coming back to the charge about Zoology paper II, it appears from the inquiry papers that the entire case against the petitioner depended on the confidential report of the External Superintendent. Such report, available in the inquiry papers, per se does not form the nexus between the petitioner and the incriminating copying material as the report is incomplete in regard to the relevant entries. The report does not show whether it was made on 13-5-1986, when examination of Zoology paper II was held, or later. There is no indication in the inquiry papers as to whom and when such report was sent. Then the main and perhaps fatal flaw in the report is that the External Superintendent has neither mentioned in her report that any copying material was recovered from the petitioner nor she filled up the printed confidential report pro forma from column Nos. 6 to

11. Columns Nos-. 1 to 5 relate to name and year of the examination; name of centre; seat No. of candidate subject and paper; time of detection and name, designation and address of the invigilator who detected the case. Only these 5 columns were filled by the External Superintendent but nothing was written by the External Superintendent against columns 6 to

11. These columns are reproduced here:

(6) "Detailed circumstances of a case (actual position as to whether the candidate was caught in the act of copying or in case of more possession of incriminating material, the place where such material was found & whether he succeeded

in using the same)

(7) Whether the candidate resisted in surrendering the papers or defined or misbehaved towards the supervising staff; if so, details should be given as under ......................... (i) He/She changed his/her seat with Roll No. whose explanation is enclosed ................. (ii) He/She created disturbance in the Examination Hall/Room by, the way of ...................... (iii) He/She misbehaved in or around the examination Hall/Room by the way of (8) Is the statement of explanation of the candidate recorded enclosed? ............... (9) Is the Report of the invigilator who detected the case enclosed? ..................... (10) Definite opinion of the Centre Superintendent based on the circumstances and the written report of the Invigilator ......... (11) Mode of despatch of script/s and the incriminating material with date of despatch " Without giving any particulars as to what was done by the petitioner and without filling up columns 6 to 11, the aforesaid confidential report standing by itself is no legal evidence on the basis of which the Disciplinary Action Sub-Committee and other respondents could find that the petitioner had copied from the copying material. As observed earlier, the nexus between the petitioner and the copying material had not been proved. The petitioner had denied that any copying material had been recovered from her. Apparently the concerned External Superintendent had not been examined by the Committee. At best it was a case of suspicion but on mere suspicion or conjectures, without legal evidence, the charge against the petitioner could not be sustained.

8. As a result, this Constitutional Petition is allowed to the extent that the notification dated 30-11-1986 of the Board of Intermediate and Secondary Education Sukkur in so far as it awards the punishment of cancellation of all the papers of the petitioner and debars her from reappearing in the 1987 examination, and the notification dated 20-12-1986 of the Board upholding such punishment are declared to have been made without lawful authority and are of no legal effect and the respondents are directed to declare the result of the petitioner on the basis of the marks obtained by her in the Examination held in 1986. Parties shall bear their own costs. A.A. /M-236/x

Petition allowed