P L D 1961 (W (PLP)

(g) Writ‑Relief‑Issuing writ not same as making "declaration"‑Petition for writ dismissed where no more than a "declaration" could be given, petitioner having paid up fine imposed‑Constitution of Pakistan (1956), Art. 170 . Petitioner in person. Sardar Muhammad Iqbal for Respondent. Date of hearing : 28th June, 1960. SHABIR AHMAD, J.‑The First Examination in Law for the year 1960 was held at Lahore by the Punjab University from the 10th to the 21st of may 1960. The centres of the examination were three, two being in the University Hall and the third in the pavilion in the University Hockey Grounds. On the 12th of May, when the examinees were handed over paper 11, there was some commotion in one of the centres in the University Hall because some students thought that the paper was too stiff while some others thought that it was out of the course prescribed. The trouble started in one of tree two centres in the University Hall called by the University as centre 'A' and soon spread to centre 'B'. When both these examination centres were vacated, it is alleged that about three hundred students went to the University Grounds where students were taking examination in what was described as Centre 'C'. After some force was used there, even the students in centre 'C' vacated the Examination Hall. The conduct of at least some of the students was reprehensible and as no doubt action was called for, the Vice‑Chancellor of the University of the Punjab, purporting to act under Academic Ordinance 19, appointed an Inquiry Committee. This Committee held an inquiry and sent its report to the Vice‑Chancellor who decided to punish some students by fine as is clear from Notifica tion No. 41‑A/A.C. issued by the Punjab University on the 8th of June 1960 which was issued in supersession of Notification No. 41‑A/A. C. dated the 3rd of June 1960. The notification dated the 8th of June 1960 was to the effect that some of the students were fined Rs. 250 each, some Rs. 150 each and some Rs. 75 each; while no fine was imposed on some others. It further said that the students who had been fined could take their roll numbers from the University Law College, Lahore, for appearing in the II paper on the 20th of June 1960 on the condition that they paid the fine imposed. One of such students was Muzaffar Ali Shah who presented the present petition to this Court on the 16th of June 1960 for issue of an appropriate writ so that he may be allowed by the University to take the examination without payment of fine. The main allegations in the petition of Muzaffar Ali Shah were that he had taken no part in the disturbance and had left the Examination Hall on being so directed by the Superintendent of the Examination Hall, that he was not heard before being punished, and that the imposition of fine was not allowed by the relevant provisions applicable to the case. The petition of Muzaffar Ali Shah came up before this Bench for a preliminary hearing on the 17th of June 1960 when it was ordered that report should be called from the Vice‑Chancellor of the University of the Punjab, the sole respondent in the petition, with regard to the legality of imposition of the fine. The report was received the next morning when Sardar Muhammad lqbal Mokal, Acting Principal of the Law College, appeared in Court along with the file containing the findings of the Committee which had held the inquiry into the disturbances in the Examination Halls on the 20th of may 1960 and the order of the Vice‑Chancellor. The report of the Inquiry Committee and the order of the Vice- Chancellor show that the Committee had divided the examinees into five categories and Muzaffar Ali Shah petitioner fell in category 'C' and that Category 'C' contained the names of those students only who submitting to the force used by the mischief mongers had walked out. On the 18th of June 1960, the Bench passed the order that the Law College Authorities should deliver the roll number of Muzaffar Ali Shah to him without charging the sum of Rs: 75 imposed as fine by the Vice‑Chancellor. Learning of this order, thirty‑eight other examinees of the First Examination in Law presented a writ petition (No. 458 of 1960) through Mr. S. K. Ahmad, Advocate. A notice was issued in this petition and it was directed that it shall be heard along with Writ Petition No. 455 of 1960. Some days later Writ Petition No. 484 of 1960, in which the sole petitioner is Abdul Halim Khan, was put in through Mr. A. Rashid, Advocate, but no notice was issued in this case. Mr. A. Lone, who was one of the examinees, put in an application (Civil Miscellaneous No. 1243 of 1960) through Mr. Kamal Mustafa Bukhari, Advocate, that he may be impleaded as a party in Writ Petition No. 455 of 1960 and on the 24th of June 1960 an order was passed granting the application, and it was directed that the applicant will be heard on the 28th of June 1960, if necessary. As most of the points that require determination in all the above matters are the same, they will be disposed of by this order.

2. The written statement put in by the Vice‑Chancellor of the University of the Punjab, in addition to containing replies to the petition put in by Muzaffar Ali Shah, contained some preliminary objections, the main one of which was that the matter being entirely of an administrative nature this Court had no jurisdiction to issue a writ. On merits it was pleaded, inter alia, that though imposition of fine was not provided for in the relevant provisions but the punishment which had been imposed was less severe than any of the punishments which could have been imposed under those provisions and, therefore, the examinees could have no complaint on that score.

3. The relevant provisions are contained in Academic Ordinances Nos. 18 and 19, which read as follows :‑ "

18. Any candidate who refuses to obey the Superintendent of an Examination in the Examination Hall, or changes his seat with another candidate, or changes his roll number card, creates disturbance of any kind during the examination, or otherwise misbehaves in or around any Examination Hall shall be liable to expulsion by the Superintendent or the Registrar or Inspector of a Centre or any officer duly authorised by the Registrar, as well as to any of the following punishments according to the seriousness of the offence

1. Cancellation of the particular answer‑book concerned.

2. Disqualification for one year only.

3. Disqualification up to three years. The Superintendent of the Examination Hall shall report without delay each case in detail with evidence and explanation of the candidate concerned for final orders of the University." "

19. In case of an emergency the Vice‑Chancellor is authorised to award suitable punishment, without reference to the Unfair Means Committee, to any candidate or to any student on the rolls of the affiliated College, who creates disturbance of any kind during an examination or otherwise misbehaves in or around any Examination Hall." The Vice‑Chancellor purported to act under Academic Ordinance No. 19 on the ground that it was a matter of emergency requiring immediate action. .

4. Before dealing with the petitions on merits, I will dispose of the preliminary objection to which a reference has been made earlier. It appears to me that the objection has no force. If an administrative authority has been given powers untramelled by any rules, there will be no jurisdiction in this Court to issue a writ because no rule or regulation or a provision of law could in that case be said to have been violated by that authority. If, however, the impugned order is passed by virtue of a law, rule or regulation, the jurisdiction of this Court to issue an appropriate writ exists and the Court can direct the administrative authority. to act in accordance with the provisions which are binding on it. I may, however, make it clear that this Court will not ordinance issue writs in matters dealt with by administrative authorities and will do so only if it comes to the conclusion that a provision of law, a rule or a regulation has been entirely overlooked, with the result that the authority itself has transgressed the law, rule A or regulation by virtue of which it purported to act. I would hold, therefore, that the jurisdiction of this Court to issue a writ, if the issue of a writ is called for, cannot be taken away by the mere fact that the impugned order can be described as an administrative order.

5. Coming now to the merits of the petition, the first contention that may be disposed of is that Academic Ordinance No. 19 does not authorise the Vice‑Chancellor to impose a fine. No penalty is provided in Academic Ordinance No., 19, but it can be safely presumed that the penalty provided in the receding Ordinance with regard to matters dealt with in that Ordinance can be imposed by the Vice‑Chancellor if he comes to the con clusion that because of an emergency the matter required speedy disposal and compliance with Academic Ordinance No. 18 was not expedient. It was contended on behalf of the examinees that there was no emergency and, therefore, the Vice‑Chancellor could not invoke Academic Ordinance No. 19 and the matter should have been deal with under Academic Ordinance No.

18. I am of the opinion that as worded Ordinance No. 19 leaves it to the Vice‑Chancellor to determine whether or not an emergency exists to justify his taking action under Academic Ordinance No. 19 and the Court cannot give a finding that no emergency existed if the Vice‑Chancellor has said that one did. But even if it were open to the Court to look into the question whether or not there was an emergency, it appears to me that the finding would have had to be in favour of the Vice‑Chancellor. By having the matter speedily disposed of, the Vice‑Chancellor was in a position to arrange that the examinees could reappear in the II paper of the First Examination in Law on the 20th of June 1960 and thereby save six months.

6. The contention that the imposition of fine was not contemplated by the relevant Academic Ordinances may now be taken up. As would appear from Academic Ordinance No. 18 which has been reproduced in paragraph 3 above, imposition of fine is not mentioned as one of the punishments that can be imposed. Technically, therefore, the contention that the fine could not be imposed was correct. There is, however, much force in the contention raised on behalf of the respondent that the punishment imposed was much lighter than any of the punishments provided. If, therefore, the order suffered only from this defect, t I would be reluctant to issue a writ because the issue of a writ being entirely discretionary, I would not permit the examinees to insist on strict compliance with the Ordinance with regard to punishment that could be imposed as that can prove more harmful to them than the punishment which has been imposed.

7. This brings me to the question whether or not the issue of a writ is called for. It is clearly mentioned in the report that examinees mentioned in Category `C' were those who yielded to the force of the mischief‑mongers and left the Examination Hall. Prima facie, a person who yields to force cannot be considered by any standard to have been a delinquent, unless a law, rule or regulation applicable to his case makes it clear that even yielding to force would be punishable. It was pleaded in the written statement that the word "force" was meant to indicate persuasions used by the mischief‑mongers. In view of the fact that neither in the report of the Inquiry Committee nor in the order of the Vice‑Chancellor is it mentioned even once that the force to which the examinees placed in category `C' had yielded was persuasion, it is difficult to accept the contention that the word "force" employed with regard to examinees placed in category `C' was meant only to indicate persuasion and did not connote what it, ordinarily should connote. If a person is subjected to force, he is placed in an unenviable position. If he does not yield to force, he may be running some risk to his own person and to expect a person not to yield to force on risk of a penalty being imposed cannot be considered to be either just or proper unless the law provides that yielding to force is an offence. One instance of such a provision of law is contained in section 24 of the Army Act wherein it is provided that cowardice is an offence which would imply that if a person yields to force he is committing an offence. Ordinarily doing a thing as a result of yielding to force is immune from punishment and I do not see why that ordinary rule should not apply to this case. My reason for taking this view is that what is made punishable by the relevant Academic Ordinance is misbehaviour and as, in the circumstances of this case, yielding to force cannot be reasonably considered to bell misbehaviour in the accepted sense of the word, however wrong such yielding may be from the moral point of view, it was no, open to the respondent to punish the petitioner for yielding to force. It may be that the Inquiry Committee and the respondent intended to punish only those persons who had yielded to persuasions of those students who were described in the report as mischief‑mongers, but in the absence of anything in the report or in the order of the Vice‑Chancellor to clearly indicate that it cannot but be presumed that the word "force" was used in its ordinary literary sense as, understood by any educated person.

8. There is another aspect of the matter which cannot be lost sight of. The complaint of the petitioner that he had not been heard before being held guilty is substantiated by the record of the Inquiry Committee set up by the respondent. This Committee examined those persons whom they described as mischief‑mongers, but none of the other examinees who were ultimately found guilty of misbehaviour was heard or examined. It is true that the petitioner could point to no specific provision which enjoins the examination of a person whose misbehaviour is in question, but as the relevant provisions of the Academic Ordinances do not lay down in so many words that it will not be necessary to give an examinee, who is charged with misbehaviour, an opportunity to show that he was innocent, I am of the view that the statutory rule of justice and prudence that a person should be heard before he is condemned should apply to this case. That the giving of such an opportunity was absolutely necessary would appear to be clear if all the documents which I find‑attached to the report of the Inquiry Committee set up by the respondent were to be kept in view. Some of these documents would show g that some students went out of the Examination Hall because they were told by the Superintendent or the Invigilators to do so. It is obvious that examinees who left the Examination Hall on being directed by a person in authority to do so cannot be said to have been guilty of misbehaviour contemplated by the relevant Academic Ordinances.

9. In view of what I have said above, it appears to me that the order of the Vice‑Chancellor in so far as it relates to Muzaffar Ali Shah, the petitioner in Writ Petition No. 455 of 1960, merits vacation and I hereby quash it. This order will not, however, preclude the authorities from giving a finding, after following the procedure laid down by the Academic Ordinances, that Muzaffar Ali Shah had been guilty of misbehaviour and was, therefore, punishable.

10. I will now take up the case of the other examinees. The thirty‑eight examinees who put in their petition through Mr. S. K. Ahmad, Advocate, and the one who put in his petition through Mr. A. Rashid, Advocate, as well as M. A. Lone who applied for being impleaded as a petitioner along with Muzaffar Ali Shah, petitioner in Writ Petition No. 455 of 1960, came to this Court for relief after they had paid the fine and taken their roll numbers. Giving just a declaration is not the same thing as issuing a writ and as in the case of these forty examinees no more than a declaration can be given, their petitions cannot be accepted and hereby dismissed. The order with regard to Writ Petition No. 484 of 1960 will be that it is dismissed at the preliminary hearing.

11. As regards costs, I am of the view that in the peculiar circumstances of the case, the parties should be left to bear their own costs in all the petitions. SAJJAD AHMAD, I.‑I agree. A.H. Order accordingly.