P L D 1980 Lahore 176 (PLP)

In this petition, a punitive action taken by the Board of Intermediate and Secondary Education against a candidate for Intermediate Examination for having allegedly used unfair means in the examination is under challenge.

2. The allegation against the petitioner is that he while attempting Chemistry Paper B on 22-?-1972, was found in possession of an objectionable written piece of paper and copying therefrom in the Examination Hall. On detection, he refused to make any statement to Superintendent whereupon the latter filed a complaint against him. He was charged under three counts ; namely, rules 6(ii), 7 (iii) and 8 (i) of Chapter 6 of Rules contained in the Calendar of the Board of Intermediate and Secondary Education, Lahore. The -first one relates to possession of or access to papers, notes, etc., which might possibly be of assistance in solving the question paper ; the second one relates to the refusal to obey the Superintendent or to give statement when found using unfair means ; and the third one provides for the punishment for and action against copying from the objectionable material. In the charge-sheet dated 17-7-1972, the above material was specifically brought to the notice of the petitioner who submitted a written explanation wherein he denied the allegations and gave a totally different version, namely, the Supervisor (VIA) approached him with the proposal of smuggling answers from outside for him in consideration of Rs. 150 and that the petitioner slightly snubbed .him. The Supervisor made some excuses for being made the offer and thereafter the matter ended. The petitioner sought personal hearing, and he was afforded opportunity of hearing before the Discipline Committee. A complaint has been made during the hearing of this petition that neither the Superintendent was examined in his presence nor any other material including report made by the Superintendent or any other person was shown to him, therefore, he could not say anything more at the time of -the so-called hearing. He has been punished under rules 6(ii) and 8 (i) and has been debarred from passing the Intermediate Examination (Annual) 1972 and three examinations immediately following. It is further asserted that the petitioner mentioned all this in the grounds of appeal, but the Jury of Appeal without adverting to any material or giving an opportunity of hearing to him, dismissed the appeal.

3. In the report submitted by the Board, the allegations made in the petition have been controverted with the assertion that the Discipline Committee did show the material to the petitioner and as he had nothing to controvert the same, he made a statement to the following effect : With regard to the hearing in appeal, it is asserted that according to rule 17 (iv) the petitioner would have been entitled to hearing only if he would have expressly desired in the grounds of appeal that he wanted a personal hearing and ask., he did not ask for it, therefore, the same has not been given to him.

4. After hearing both the . learned counsel at length. - I am satisfied that the rules of natural justice have not been followed in the impugned proceedings. The Discipline Committee had learnt it from the., reply to the charge-sheet sent by the petitioner that he had denied the allegations and had given a counter version. The case of the petitioner is that he not having been shown any material at the time 'of so-called personal bearing, could not do , anything but to state that he had nothing more to say .in the matter. On the other hand, respondents' case is that the material was shown to the petitioner. This is a disputed question of fact and I will not make any further comment on that. But one thing is certain that in spite of the petitioner having made a plea of total denial (and raised a counter version), the Discipline Committee did not; nor - it is claimed, hear the Superintendent in support) of the three-line report he had made while filling the form (Annexure R/4). The order of the Discipline Committee does not show that they asked any questions either in presence or behind the back of the petitioner, from the Superintendent in respect of the plea raised by him (the petitioner). Had it been done so in the presence of the petitioner, he might have suggested some questions to the Committee or he might have been allowed to cross-examine the Superintendent and the result might have been different. Right to cross-examine in such like inquiries is not an immutable one but depending upon the circumstances of the case, it cannot be held that the said right may not at all be allowed. This question was considered by a Division Bench of this Court in Writ Petition No. 1782 of 1967 decided on z5-6.1968. Learned counsel for the petitioner has also relied on Habibur Rehman v. Saddique Ahmad Khan (1) para. 10 of the judgment at page 18 of the report, undoubtedly, supports the learned counsel. Thus the order of the discipline Committee suffers from an infirmity.

5. On the question of hearing in appeal, there is no doubt about the proposition canvassed by the learned counsel for the petitioner that they same is necessary as it is a part of the rule of natural justice contained in them the maxim: audi. alteram partem. He has relied on Federation of Pakistan v.! Sardar Ali (2) and Chief Commissioner, Karachi v. Dina Sohrab Katrak (3) Relying on Province of East Pakistan v. Nur Ahmad (4) and Nur Ahmed v. Collector and Deputy Commissioner (5) it has also been contended that the right of hearing in appeal, which should be treated as a part of the governing statute, could not have been taken away by the rules. According to the learned counsel for the petitioner, the provision in rule 17 (iv) that the right of hearing would be granted only if it is specifically desired/claimed in the grounds of appeal, indirectly amounts to general propositions with regard to the rights of hearing in appeal and that the same cannot be taken away by a rule. But he has, on the other hand, contended in reply ; firstly, that the right of appeal was not granted by the statute in this case, therefore, if the provision for appeal had been made in the rule the procedure for the hearing of the appeal could also be controlled by the rule and secondly, that in any case, the interpretation put by the learned counsel for the petitioner on, the use of expression "if he so desires" in rule 17(iv) is not the correct interpretation. He has relied on Zafar-ul-Ahsan v. Republic of Pakistan (6) ; Mumtaz Hussain v: University of Sind (7) ; Ijlas Ahmad Siddiqi v. Municipal Committee (8), Abdul Latif Niaz v. Government of West Pakistan (9) and Jack D'Crus v, Collector of Customs (10). It is not necessary in this case to go into the question as to whether the right of appeal was granted only by the rule and that a right of hearing in appeal is a part only of this rule ; because during the arguments it has not been denied that the appellant (before the Jury of Appeal), has a right of hearing. Even according to rule 17 (iv), this right has been assumed That question, therefore, does not arise. What needs to be determined is whether the right of hearing in appeal having once been granted by rule 17(iv) has been taken away by the expression "if he so desires". In my view, the right of hearing in the above context implies only a right t4 sufficient opportunity of hearing by appearance before the appellate authority. The rule itself pre-supposes the grant of that right and the expression "if he so desires" further affords an opportunity of appearance before the appellate authority. (1) P L D 1972 Lah. 8??????? (2) P L D 1959 S C (Pak.) 25 (3) P L D 1959 S C (Pak.) 45 (4) p L D 1964 S C 451 (5) P L D 1964 S C 461????? (6) P L D 1959 Lah. 879 (7) P L D 1966 Kar. 429??? (8) P L D 1967 Lah. 408 (9) P L D 1967 S C 72?????? (10) P L D 1969.Dacca 691 Therefore this expression, by itself can, in no way be interpreted to have taken away the right of opportunity of appearance at the time of hearing of the appeal. But the matter does net end here.

6. According to the learned counsel for the petitioner, due to another action on the part of the respondents, the principle contained in rule 17(iv) with regard to appearance at the time of hearing of the appeal has been nullified. His reference is to the printing of the rules in the charge-sheet supplied to a candidate against whom an action is proposed to be taken. All necessary rules are printed thereon but rule 17 (iv) has been omitted. Moreover in addition to the above, I have noticed that at page 4 of the charge-sheet, a note is added in a bold print. It reads as follows: Note.-"(1) You should state clearly if you wish to be heard personally. If you do not make a request of being heard personally at this stage, you should note that no such opportunity will be given to you subsequently. (2) A candidate who has valid reasons can appeal to the Jury of Appeal against the decision of the Discipline Committee by writing, addressed to the Controller of Examinations within 30 days of the receipt of the decision by him/her." The impression gained from Note 1 is that if a request for being heard personally at the initial stage is not made, "no such opportunity will be given," to the candidate "subsequently". There is no clarification that the vice versa will not be true; namely, that if a desire is expressed for personal hearing a the initial stage, the same shall be taken to have applied to the `subsequent' appellate stage as well. This note, therefore, is entirely misleading for candidates who, at that stage of life, are of tender age and are not well versed wit the intricacies of these rules. This is particularly so because the appearance through lawyers is not permitted before the Committees. It is also to be observed that in Note 2 the candidate is told that he can file an appeal to the Jury of Appeal within the period prescribed thereunder, but the matter with regard to personal hearing at that stage (left in vagueness in Note 1) has again been left out (in this note). It could have been clarified by addition of one more sentence that the candidate can ask for hearing. One way-of looking at it is that the same has not been done because in Note 1 it has been indirectly provided that once a desire is expressed at the initial stage the same shall apply also to the appeal stage. Learned counsel for the petitioner vehemently argued on the basis of facts involved in this case, that the petitioner having asked for personal hearing in the initial communication sent to the Controller of Examinations, throughout, remained under the impression that he was not to express the same desire over again in the grounds of appeal and that he presumed that he would, on account of the desire earlier expressed, be given an opportunity of personal hearing. When all this was put to the learned counsel for the Board, he has not been able to give any satisfactory reply.

7. He has, however, stated that he will advise the Board to clarify these matters in the printed matter on the charge-sheet and further that the Board will be requested by him to prescribe a form for appeal in which the candidate will be informed of all his rights and that one of the columns of that form will relate to expression of desire as to personal hearing of otherwise. The attitude adopted by the learned counsel is very reasonable. If this and/or something more is done on that line, it undoubtedly will obviate hardship likely to be suffered by the candidates and, at least, a part of litigation would be avoided. Beyond that I do not want to make any further observation. It is for the Board to look into these matters.

8. As a result of the above discussion, however, I am satisfied that due to the misleading printed material on the charge-sheet, the petitioner has been misled into believing that the expression of desire by him in the reply to the charge-sheet submitted to the Controller of Examinations was expression o desire for the purpose of personal hearing at the appellate stage as well. Thai being so, the Jury of Appeal not having granted him opportunity of persona hearing, its order has to be set aside as without lawful authority as a result, whereof the matter has to be remanded for re-decision.

9. The next question that needs to be determined is as? to whether the matter should be remitted to the Jury of Appeal or to the Discipline Committee. It is agreed on all sides that the future of a young student is involved who itends continuing his study in the higher classes, therefore, the matter should be disposed of as expeditiously as possible. Learned counsel for the Board has suggested that it can be remitted to the Jury of Appeal who have the power and jurisdiction as appellate authority to send for the Superintendent and hear him in presence of the petitioner and/or admit any other evidence. According to him, if the case is remitted to the Jury of Appeal it would be decided within a few days but if it is remitted to the Discipline Committee it might take a long time. The suggestion is reasonable.

10. The result is that this petition is accepted. The case is remitted to the Jury of Appeal for a fresh decision on the appeal in accordance with la with the direction that the petitioner shall be given an opportunity of personal' appearance, and further that if the Jury of Appeal does not consider it necessary itself to admit additional evidence this order shall not be a bar to their remanding the case to the Discipline Committee for fresh decision in accordance with law. Both the courses are open to the Jury of Appeal. There shall be no order as to costs. S. A. H. Petition accepted.