CONTROLLER OF EXAMINATION, B. I. S. E. LAHORE Versus MUHAMMAD YAQUB

ORDER

1. MUHAMMAD AFZAL CHEEMA, J .-The Controller of Examinations. Board of Intermediate and Secondary Education, Lahore, herein the petitioner. feels aggrieved by the judgment of the learned Chief Justice of the Lahore High Court dated 1-7-1976 whereby he allowed the writ petition of the respondent and directed the petitioner to declare his result of the Intermediate Examination taken by him in October 1975, under Roll No. 13599.

2. The short background of the case is that on 23-10-1975 when the respondent was taking his Intermediate Examination in History Paper (B), he was allegedly found by the Deputy Superintendent of the Examination Centre to he in possession of certain objectionable material and was charge sheeted for offences punishable under rule 6.6 (ii) and 6.7 (iii) of the relevant Rules. Surprisingly enough although the charge-sheet served on the respondent on 6-2-1976 precisely contained these allegations, the initial report submitted by the Superintendent of the Centre disclosed an altogether different version. All it said was "Found copying. Copied material enclosed. Refused to give statement." There was a further note to the effect "Copied papers are signed by the Deputy Superintendent". The patent falsity of the allegation of copying was frankly conceded by the learned counsel who admitted that the allegation stood belied by the report submitted on reference by the Head Examiner of the Paper. Notwithstanding this, however, the Discipline Committee after hearing the respondent held him guilty under rule 6.6 (ii) and 6.7 (iii) and debarred him from passing the examination as also from appearing in the following examination. His appeal was rejected by the Departmental Committee of Appeal by a short order whereupon the respondent successfully invoked the Constitutional jurisdiction of the High Court and his Writ Petition No. 1301 of 1976 was allowed by the learned Chief Justice, vide judgment dated 1-7-1976 from which leave to appeal is sought herein.

3. Learned counsel contended before us ; firstly, that the High Court had proceeded on a wrong assumption that the objectionable material had not been recovered from the possession of the respondent ; secondly, that finding of fact arrived at by a departmental authority of competent jurisdiction could not be interfered with in exercise of Writ jurisdiction ; and lastly, that the High Court was obviously in error in holding that the principles of natural justice had been ignored. Reliance was placed in this regard on The University of Dacca and another v. Zakir Ahmad PLD1965SC90 and an unreported judgment of this Court in Civil Appeal No. 57 of 1975.

4. Having considered these contentions in the light of the High Court's judgment, we are clearly of the view that even if on a very narrow and technical view, the contentions raised by the learned counsel were taken to be correct, there is hardly a legal point of general public importance ? involved in the matter so as to justify the grant of leave to appeal.

5. It cannot be disputed as held by this Court in The University of Dacca and another v. Zakir Ahmad that the proceedings of a Discipline Committee have no analogy to judicial proceedings. Notwithstanding this, however we are inclined to think that the finding of guilty returned by the Discipline Committee against the respondent and upheld in appeal by the departmental Committee of Appeal was based on no convincing evidence and was rightly set aside. A perusal of the High Court's judgment clearly shows that by the time the Deputy Superintendent had seized the answer book of the respondent, he had already concluded his paper as indicated by his appeal at the end addressed to the Examiner to pass him in the name of God as that was his last chance and his failure would mean the ruin of his career. These closing words were prefaced by the words "Khuda Hafiz" clearly showing them to be the last. Learned counsel frankly conceded that although the so-called objectionable material placed on the record by the Centre Superintendent contained answers to questions 4, 5 and 8 of the Question Paper of which questions 2, 3 and 5 had been attempted by the respondent, the comparison did not give the slightest indication o B copying and therefore allegations of copying were obviously baseless and stood completely falsified. No doubt normally allegations of copying would impliedly include the presence of the material from which something is copied, may be a note-book, printed material or the answer book of another candidate, and the answer book of the amused candidate showing the reproduction of the copied material from its source, yet the allegations o copying having been found untrue, the Discipline Committee in all fairness and in order to justify the verdict of guilty against the respondent should have proceeded to examine the Deputy Superintendent so as to seek further clarification in so far as the second charge of the respondent having been found in possession of objectionable material was concerned. This indeed was never done. The allegation, therefore, suffered at least from vagueness if not complete baselessnesa. The learned Chief Justice struck down the order of the Discipline Committee also on the ground, namely, that the respondent had brought definite allegations of bias against the Deputy Superintendent for personal reasons and had specifically requested the Discipline Committee to summon him at his expense but his request was turned down by the Discipline Committee which caused serious prejudice to him in his defence. This according to the learned Judge amounted to the denial of elementary and essential principles of fairness to the respondent. Challenging this view of the High Court, learned counsel relied on the following observation of this Court made in The University of Dacca and another v. Zakir Ahmad:

6. "Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not found 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. 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."

7. I am afraid, the above observation instead of being helpful goes rather against the petitioner and no fault can be found with the High Court's judgment on that score.

8. The last point to be considered in this context is as to whether in the circumstances of the case having struck down the impugned order, the High Court should have more appropriately remanded the case to the Discipline Committee instead of substituting its own decision. It may be observed with respect that it is not a case of substitution of decision but the High Court merely struck down the order of the Discipline Committee as being illegal on grounds with which no fault can be found on the factual or legal plane. To remand the case to the Discipline Committee would in fact amount to enabling it to supply the omissions and fill up the lacuna in its case to the serious prejudice of the respondent who has already suffered a lot owing to the withholding of his result for more than a year ago. In consequence, I find no force in this petition, which is hereby dismissed.

9. DORAB PATEL, J .---In my humble opinion, the petition merited admission and I would now give the reasons for my view.

10. The facts in the instant case fall under the observations of Hamoodur Rahman, C. J., in University of Dacca,v: Zakir Ahmad PLD 1965 SC 90 and I would further observe that his Lordship; in that case, had followed a judgment of the Privy Council in University of Ceylon v. Fernando (1960) 1 All E R 631. The relevant observations of Hamoodur Rahman, C. J. are at page 104 of the judgment and although my learned brother has referred to them, in view of their importance, T would again refer to them ?;

11. " . . . . 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."

12. Taking first the question of the charge-sheet, my learned brother is of the view that the charge sheet was vague. With the utmost respect, as, according to the law declared by this Court, the respondent was not entitled to a formal charge-sheet, can the charge-sheet served on him challenged on the ground of vagueness? The question has to be examined in the background of the fact that the respondent was well aware of the nature of the charge which he had to meet, and I find it difficult to agree with the view of the learned Chief Justice, but, in any case, the wide proposition laid down by him requires fuller examination, the more so as it affects universities and examining bodies throughout the country.

13. Additionally, according to this Court's view in the University of Dacca's case the petitioner was not required, under the Rule audi alterum partem to give the respondent an opportunity to cross-examine "the person who had l reported against him". In taking a view to the contrary, my learned brother) has observed that "the allegations of copying having been found untrue, the Discipline Committee, in all fairness and in order to justify the verdict of guilty, against the respondent should have proceeded to examine the Deputy Superintendent". With the utmost respect and humility, I have to observe that the note made by an invigilator who detects a student copying in an examination will frequently not be the basis of the charge-shoot issued to the student concerned, if the authorities discharge their duty of applying their mind to the complaint of the invigilator before issuing a notice. Therefore, with the utmost respect, I am unable to agree with my learned brother., But if I am wrong, the proposition laid down by my learned brother relates to a question of law of importance and, on this ground alone, the petition ? merited admission.

14. Further, as the judgment, under appeal, is the judgment of a Court of record, the question is of the reasons given by the leaned Chief Justice for the view taken by him and I cannot do better than to quote here from my learned brother's order who observed

15. ? " . The learned Chief Justice struck down the order of the Discipline Committee also on the ground, namely, that the respondent had brought definite allegations of bias against the Deputy Superintendent for personal reasons and had specifically requested the Discipline Committee to summon him at his expense but his request was turned down by the Discipline Committee which caused serious prejudice to him in his defence."

16. With respect, it escaped the attention of the learned Chief justice that the Writ Petition, filed by the respondent, did not contain any allegations of, male fides and bias whatsoever against the Deputy Superintendent. On the l contrary, the allegations in paragraph (b) of the respondent's writ petition, were solely against the Superintendent of the Examination Centre. I will refer again to this aspect of the case, but the other reason, given by the learned Chief Justice, . was that the petitioner had not allowed the respondent's request for examining the Deputy Superintendent. With respect, the question whether the respondent had sought the cross-examination of the Deputy Superintendent and the further question whether that request had been rejected, were questions of fact and as the respondent had not even pleaded, in his writ petition, that he has sought the cross- examination of any person, the question which arises for consideration is whether the High Court was justified in allowing the writ petition on pleas' of fact which had not been pleaded, However, even if it is assumed that / the plea advanced by the respondent, in his arguments before the High Court. was supported by the averments in the writ petition, on the law declared by this Court, he was not entitled to cross-examine the Deputy Superintendent. Would the mere fact that he had sought the cross-examination of the Deputy Superintendent justify a modification of the view taken in the University of Dacca case? This question cannot be decided without a fuller examination of facts and the law. ???? ?

17. I observed earlier that the writ petition of the respondent did not contain any allegation of male fides or bias against the Deputy Superintendent and as this Court has repeatedly held that pleas of mala fides or bias cannot be examined unless they have been expressly pleaded, the view taken in the judgment under appeal, required examination on this ground also. Additionally, as the Deputy Superintendent was not a party before the High Court and it does not appear from the judgment that he had been given an opportunity to be beard, I am disturbed by the fact that he was condemned unheard.

18. Finally, another obvious question for consideration in the petition is whether the learned Chief Justice should have remanded the case of the respondent to the petitioner, in view of his finding that the respondent had not been given a proper opportunity to be heard. Unfortunately the learned Chief Justice omitted to give any reason for not remanding the case to the respondents. My learned brother is of the view that any remand would enable the petitioner "to fill up the lacuna in its case". As this Court has repeatedly remanded, for example, cases to the- Settlement . authorities despite the very great danger of fabrication of evidence in such cases, in my humble opinion, we would riot be justified in departing from this rule in the instant case the more so as it relates to the maintenance of discipline in educational institutions. But once again, if I am wrong, and if a departure from the practice of remanding cases is necessary in writ petitions relating to educational institutions then, with the utmost respect, such a departure from the general practice should only be made after a fuller examination of the question and this is not possible unless the petition is admitted. Accordingly, with the utmost respect, 1 cannot agree with the view of my learned brothers but, in accordance with their view, the, petition must be dismissed.

19. SALAHUDIN AHMED J : -I have had the advantage of perusing the judgments proposed to he delivered by my learned brothers ? Muhammad Afzal Cheema and Dorb Patel JJ.

20. I agree with the judgment and order passed by the former. I may add that there is no evidence to connect the respondent with the recovery of any objectionable material from his possession in the examination hall. There is nothing in the report submitted by the Deputy Superintendent of the Examination Centre to indicate that any such material was recovered from the respondent. The Deputy Superintendent was riot even examined to find out whether in fact any such material was recovered from the respondent's possession, although the respondent had made allegations against the former and prayed for his examination at the-cost of the respondent.

ORDER OF THE COURT

21. In view of the majority opinion, the petition-is dismissed.