2005 PLP 476 (YLR)

Date of hearing: 4th October, 2004. KHAWAJA MUHAMMAD SAEED, ACTG. C.J.‑‑‑This appeal with the leave of the Court is directed against the judgment passed by the High Court on 15‑3‑2004.

2. The relevant facts precisely stated are that the respondent, a student of B.Sc. Electrical Engineering, appeared in the paper of Advance Programming Language 3rd Professional Annual Examination 2000, held on April 30, 2003. He was charge sheeted on the blame that he used unfair means in the aforesaid paper at Centre Mirpur. Later on, on the basis of inquiry conducted in this regard he was disqualified from appearing in the University Examination for a period of one year. He initially moved an appeal for setting aside the aforementioned penalty before the Vice Chancellor of the University in which he denied the allegations attributed to him regarding use of unfair means. His appeal was turned down by the Vice Chancellor vide his order dated October 14, 2003. Feeling aggrieved from the aforesaid orders, the respondent invoked the writ jurisdiction of the High Court on 14‑11‑2003, whereby he challenged the order of the Controller of Examinations dated 1‑10‑2003 and that of the Vice Chancellor dated 14‑10‑2003.

3. After taking necessary proceedings, as required by law, his writ petition was allowed by the High Court vide judgment under challenge dated 15‑3‑2004. Hence this appeal.

4. Mr. Farooq Hussain Kashmiri, the learned counsel for the appellants, argued that the judgment of the High Court being contrary to the established facts is liable to be set aside. According to him, the copying material was recovered from the respondent who impliedly admitted the same in his explanation but the matter at issue was not looked into from this angle. According to him, as the respondent had not denied the recovery of copying material from him before the competent authority, therefore, by his conduct he was estopped to challenge the decision of the said Authority through a writ petition in the High Court. He placed reliance on a case reported as Samar Pervaiz v. Board of Intermediate and Secondary Education Lahore and another PLD 1971 SC

838. According to him, the respondent had filed a wrong affidavit about the copying material, therefore, he had approached the High Court with unclean hands due to which his writ petition was summarily liable to be dismissed. According to him, the respondent was duly heard and his affidavit before the High Court that he was not provided the right of audience was contrary to the true facts. Therefore, this ground was not available to the respondent which was wrongly raised by him before the High Court.

5. Mr. Abdul Majid Mallick, the learned counsel for the respondent, argued that his client had denied that any copying material was ever recovered from him. According to him, his client supported this ground by filing his personal affidavit. He had impleaded all the concerned persons in the line of answering respondents in the writ petition but none out of them dared to file counter affidavit. In these circumstances the High Court had no option but to accept the version of his client as correct. He further argued that even in the record it is mentioned that some 10 papers were recovered from him but it is not mentioned that it was such material which could be utilized while answering the question paper nor it is said that his client ever used these papers as copying material. He further argued that any material sent to the Revising Committee could not be said that the same was recovered from his client as the Superintendent of Centre Mirpur had not given any description of papers which according to him were recovered by him from the possession of his client. It was further argued that under Chapter 11 of the Calendar of AJ&K University it was mandatory for the Superintendent or the Deputy Superintendent of Centre to call upon all the candidates to search their pockets and the candidates have to part with and deliver to him all papers, books or notes which they may have brought in the examination hall. It is also the requirement of law that the Superintendent or the Deputy Superintendent, as the case may be, shall forward to the Controller of Examinations every day a declaration signed by him or them and witnessed by all invigilators deputed in the examination hall to the effect that he or they called upon the candidates to search their pockets and the candidates surrendered all the papers, books or notes in their possession. It was mandatory for the Superintendent of Centre to search the person of candidates and issue a certificate to the effect that he had satisfied himself that no candidate was in possession of any copying material. In this case, according to the learned counsel, even though no such declaration has been produced by the University, however, it shall be presumed that no candidate was carrying any copying material. According to the learned counsel, if the requirement of law was not fulfilled, the officials of the University cannot blame anybody‑else except themselves for ignoring the mandatory provisions of law.

6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case with their assistance. In this case the admitted facts are that the contesting respondent appeared in B.Sc. Electrical Engineering, 3rd Professional Annual Examination 2000 under Roll No.340, held on April 30, 2003. He was later on blamed for having used unfair means in the subject of Advance Programming Language held at Mirpur Centre and on account of this reason was disqualified for a period of one year from appearing in the examination vide order of Controller of Examinations dated October 1, 2003. He made a representation seeking quashment of the aforementioned punishment, however, his request was turned down vide order passed on October 14, 2003. In this case some inquiry was conducted, as is alleged by the appellants, however, it is not clear whether the respondent was confronted with the copying material, allegedly recovered from him, or not. It is an admitted fact that the C statements of the Superintendent or the Deputy Superintendent along with the Invigilators who were on duty at the relevant Centre on the alleged date were not recorded in presence of respondent nor was he allowed to cross‑examine them. A meaningful opportunity of hearing must be provided to an accused person. It should not be a mere formality as has been done in the present case. With the written statement before the High Court or the memo. of appeal before this Court filed by the University, no certificate prepared by the Superintendent or Deputy Superintendent in presence of all the Invigilators deputed in the examination hall on the relevant date, was appended. However, a note written by Prof. Dr. Muhammad Sarwar Ahmed, Dean/Resident Inspector, UCET, Mirpur, A.K. has been relied upon by the learned counsel for the appellants during the course of his arguments which reads as follows:‑‑ It is not clear from this note as to whether the papers allegedly recovered from the respondent were useful for answering the question paper. Even it is not mentioned that these could be used for copying purpose, nor as said earlier, there is any proof that the same papers were sent to Revising Committee for its perusal. In these circumstance, the case against the respondent is one of suspicion. On the basis of such a case no punishment should have been awarded to respondent. The respondent has denied that any material was recovered from him which he had taken to the examination hall for copying purposes. In this case the Superintendent, the Deputy Superintendent or the Invigilators of the Centre have failed to comply with the provisions of clause 10 of Chapter 11 of the Regulations of Conduct of Examination as provided in the University Calendar; if they had complied with the aforementioned provisions of Regulations, the requisite certificate was not produced either with the writ petition before the High Court or with the memo. of appeal before this Court. In the light of these facts the punishment awarded to the respondent was unfair and unlawful. In past we have noticed that the officials of the University have not been conducting inquiries in accordance with the rules and regulations provided in the University Calendar. Inquiries were conducted at the back of the accused persons whereas according to law in all the judicial and administrative proceedings the principle of natural justice is to be followed which means that all the proceedings must be conducted in presence of the accused persons and such persons must be provided a fair opportunity to cross‑examine the witnesses appearing against them or to rebut the material brought against them by the prosecuting agency.

7. In this case, as has been rightly noticed by the High Court, some inquiry was conducted at the back of the respondent and he was not given a chance to cross examine any witness nor was he given a chance to rebut such evidence. In the light of aforementioned reasons, no error was committed by the High Court while setting aside the impugned orders recorded by the officials of the University against the respondent.

8. In the light of above discussion, finding no force in this appeal, the same stands dismissed. H.B.T./132/SC(AJ&K) Appeal dismissed.