ABDUL LATIF Versus CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, SUKKUR

1. AHMAD ALI U. QURESHI, J. ‑‑The petitioners in the three petitions have impugned the order of respondents Nos. 1 and 2 contained in Notification No.DISE/HSC/SSC:/C.C./SUK/662, dated 5‑12‑1985 whereby they were debarred for a period of three years and were allowed to appear at annual examination 1988 with fresh attendance of one academic year 1987‑88.

2. The case of the petitioners in brief is that they had appeared and completed annual examination of the Higher Secondary Education (Inter Science) at Kandhkot centre for the year 1985. Their result was, however, withheld and they were sent notices that they had been caught while using unfair means in the examination hall and their case was referred to disciplinary committee and further that they should state and explain not later than the date specified in the notice as to why disciplinary action should not be taken against them. They were also asked to appear, if they so liked, before the disciplinary committee on the date mentioned in the notice to explain their side.

3. The petitioners admittedly did not submit any written explanation. Petitioners in Petitions Nos. 173/85 and 175/85, namely, Abdul Latif and Manzoor Ahmad aver that they appeared before the committee and explained their side. Maqsood Ahmed petitioner in Petition No.174/85 alleges that by a notice he was called to appear before the committee on 9‑12‑1985 and when he appeared on the said date the impugned notification dated 5‑12‑1985 had already been issued. The petitioners preferred mercy petitions to the Chairman of respondent No.1 but no action was taken. Hence these petitions were filed praying that the impugned notification be declared as bad in law and without jurisdiction and as such void ab initio. It is further prayed that the result of the petitioners be directed to be declared and respondent No.3 be directed to postpone the selection of the candidates for admission in the. Engineering College till the decision of these petitions.

4. Before the admission of the petitions parawise comments were called from the respondents Nos.1 and 2 who filed these comments. It is stated therein that the action against the petitioners was taken under rule 8(v) of the Rules regarding punishment to the candidates for using unfair means at the examination of the Board (hereinafter called the Rules). It was further averred that petitioners never appeared before the Committee and the charges of impersonation were proved against the petitioners in all the papers.

5. We have heard Mr. Muhammad Hanif Mangi who is appearing for the petitioners in all the three petitions and Mr. Kadir Bux Memon for respondents Nos.1 and 2. Respondent No.3 and their counsel remained absent on the date of hearing and did not address the Court. As the legal and factual points involved in all the three petitions are similar they are being disposed of by this single judgment.

6. The main contention of the learned counsel for the petitioners is that impugned orders were passed in violation of the rules and principles of natural justice, as they were not given proper opportunity to be heard. It is contended that the notice did not clearly show as to what were the specific charges against the petitioners and that they were punished on the charges which are not contained in the notice. It is further contended that petitioners Abdul Latif and Manzoor Ahmea had appeared before the committee but their explanation was not considered. In the case of petitioner Maqsood Ahmed it is contended that the impugned order was passed before the date he was asked to appear before the committee.

7. It is contended by the respondents Nos. 1 and 2 that the petitioners did not appear before the committee and notice was issued on 2‑10‑1985 and 27‑11‑1985 against the petitioner Maqsood Ahmed to appear before the committee but he did not appear on the date specified therein. It is further contended that notice, dated 30‑11‑1985 for appearance on 9‑12‑1985 was issued to Maqsood Ahmed due to oversight.

8. It may be pointed that petitioners Abdul Latif and Manzoor Ahmed have stated in the petition which is verified on oath that they had appeared before the Committee on the specified date. This statement on oath of the petitioners is not controverted by any statement on oath by the respondent. They have only contended in the parawise comments that the petitioners did not appear. No counter‑affidavit has been filed. Statement on oath cannot be successfully rebutted or controverted by any statement which is not on oath. Similarly in his petition Maqsood Ahmed states that he received notice, dated 30‑11‑1985 to appear before the committee on 9‑12‑1985. Respondents in parawise comments admit issue of this notice but state that it was due to oversight. It is contended that earlier notices, dated 2‑10‑1985 and 27‑1‑1985 were issued to the petitioner but he failed to appear. Neither this averment is on oath nor those two notices said to have been issued earlier have been produced.

9. The position that emerges is that in the case of two petitioners who state to have appeared before the committee but whose appearance is denied by respondents, no further ndtibe was issued but in the case of the petitioner who admittedly did not appear notice for appearance was issued for later date but it is stated that it was issued due to oversight. It is submitted by Mr. Mangi that this position itself supports the contention of the two petitioners that they had appeared before the committee and explained their case.

10. It will also be pertinent to note the substance of charges against the petitioners for which notice was issued to them and they were asked to explain. It appears that there is stereotyped pro forma of notice which contains three charges. The relevant part of this pro forma of notice containing~the charges is reproduced below:‑

11. "It has been reported by the Superintendent of your examination centre/examiner etc. concerned that in‑‑‑‑‑‑‑‑‑paper‑‑‑‑‑‑‑

(1) You have been caught while using unfair means in the examination hall.

(2) Your handwriting in the said paper differs.

(3) You have left the marks of identification."

12. In the case of petitioner Abdul Latif all the three charges are mentioned in the notice with respect to English II paper. In the case of petitioner Maqsood Ahmed only first charge is mentioned with respect of Maths. II, English II and Physics II. In the case of petitioner Manzoor Ahmed only first charge is mentioned with respect to Maths. II.

13. In the comments it is contended by the respondents that the petitioners have been found guilty under rule 8(v) and consequently the impugned orders were passed under the said rule. It will be advantageous to reproduce rule 8(v) which reads as follows:‑

14. "8. If, in the opinion of the competent authority, a candidate is found guilty of:‑

(v) making deliberate previous arrangement to cheat in the examination such as smuggling in or out a question paper or an answer book, impersonation or misconduct of a serious nature; he shall be disqualified from appearing in or passing at examination for a period not exceeding three years."

15. It will be seen that this rule makes number of actions punishable, namely, deliberate previous arrangements to cheat in the examination such as (a) smuggling in or out a question paper or answer book (b) impersonation or (c) misconduct of serious nature. Charge reproduced above only uses words unfair means without specifying the nature of the unfair means. In P L D 1965 S C 90 their Lordships have held that in all proceedings by whomsoever held whether judicial or administrative principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other rights of parties concerned. Their Lordships further observed as follows: ‑

16. "The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules, under which the Tribunal, is acting, the subject‑matter that is being dealt with, and so forth. Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the elementary and essential principles of fairness as a matter of necessary implication, the person sought to be affected must at least be made aware o the nature o alle ations a sint h he should be given a air opportunity to make any relevant statement putting forward his own case and to correct or controvert any relevant statement brought forward to his prejudice. Of course, the person, body or authoirity 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. 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. In other words, in order to act justly aid to reach just ends by just means the Courts insist that the person or authority should have adopted the above elementary and essential principles unless the same had been expressly excluded by the enactment empowering him to so act. .

17. In saying this the Court was not unmindful of the necessity of maintaining discipline in educational institutions or other institutions or departments where the maintenance of discipline is essential for the orderly conduct of the institution or department concerned, nor of the fact that persons in charge particularly of educational institutions must be given the fullest authority to correct those placed in their charge in the same manner as a parent or guardian would be able to do, But even so we find it difficult to accept the contention that they must also be freed from the necessity of acting in a manner which excludes every reasonable possibility of unfair action .being, taken. This can only be achieved by observing certain formalities which have been designed to assure the minimum essential principles justice an fairness, by at least telling the person sought to be punished or condemned what are the allegations against him and b 'vice him a air opportunity to correct or contradict any relevant statement to his prejudice."‑‑ ‑‑‑‑‑‑

18. (The underlining is by us).

19. The principle laid down in the above case were further expounded by the Hon'ble Supreme Court in the case of Samar Pervaiz v . Board of Intermediate and Secondary Education, Lahore and another P L D 1971 S C 838 and in the case of Ahmed and 3 others v. Vice‑Chancellor, University of Engineering and Technology and another P L D 1981 S C 464. In both these cases their Lordships reiterated the principles laid down in the case of University of Dacca and another v. Zakir Ahmed PLD 1965 S C 90. In the case of Samar Pervaiz it was further held:‑

20. "It is true that domestic Tribunals like University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial, and while these can, consistently with the demands of justice, be ignored, it does not by any means, 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. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof. A Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence."

21. In the case of Ahmed and three others it was further held:

22. "Law declared by Supreme Court does not require any formal notice to be served on petitioners and their becoming aware of the proceedings to be conducted by Disciplinary Committee was enough, nor framing of formal charge‑sheet or formal examination of witnesses in petitioner's presence and affording them opportunity of cross‑examination was necessary."

23. It was further held:

24. "Discipline Committee is not to act as a criminal Court holding a trial for purpose of ‑finding whether the person concerned is guilty of a criminal offence, but during the investigation and inquiries, preliminary or final, the attitude of all concerned is not necessary of adversaries and thus should not become antagonistic."

25. Thus, from the principles laid down by the Hon'ble Supreme Court for the purpose of conducting such inquiries it is evident that the committee is free from fetters or formalities of judicial trial and need not frame a formal charge as in a criminal case and need not even examine witnesses or afford the person affected opportunity of cross‑examining such witness but at the same time it was not entitled to deprive any individual of his valuable rights and privileges on mere conjectural grounds but its finding should be based on legal evidence and its attitude during the course of inquiry should not be antagonistic but should be impartial and fair.

26. We now proceed to judge whether the inquiry conducted by the committee in the case of. present petitioners is in accordance with the principles laid down by their Lordships of the Supreme Court. We have already seen the nature of charges preferred against the petitioners Now we proceed to see as to what transpired on the date the committee met to consider the charges against the petitioners. Mr. Kadir Bux has produced photostat copies of the order sheet in the case of each petitioner and also photostat copies of minutes recorded in each case. In both the documents there is a note to the effect that the petitioners were absent. The finding is in following words:

27. "Impersonation proved."

28. Word impersonation is not defined in the Rules. It is defined in Concised Oxford Dictionary to mean; 'Represent ' in bodily form, personify; play the part of; pretend to be (another person) for purpose of entertainment or fraud'.

29. The offence of personation is punishable under sections 170, 171‑D and 229, P.P.C. A person who personates to be somebody else for the purpose of doing the acts mentioned in these sections is held to be guilty of personation. Word 'personate' in the Concise Oxford Dictionary has been defined to mean impersonate.

30. Thus when we say that a person impersonated it would ordinarily mean that he claimed to be another person and acted as such.

31. It is not the case of the respondents that the petitioners impersonated to be some other persons and appeared in the examination papers which are subject‑matter of these inquiries. The case of respondents rather is that somebody else impersonated to be the petitioners and appeared in examination on their behalf in these papers and answered the question papers.

32. It may be pointed that ‑no student is allowed to enter the examination hall without admit card which also bears his photograph. It is not suggested that any other person was caught impersonating as the petitioners in the examination hall and such report was made by the invigilator or Superintendent of the examination centre. The case of the respondents in fact is that they became aware of this only afterwards on the reports of other student and citizens.

33. In fact respondent No. 1 due to such frequent complaints appears to have become conscious of the difficulties and anamolies underlying the inquiries in such complaints and in the meeting of the Board dated 15‑10‑1985 Resolution No.6(ii) was passed to the following effect:‑

34. "(ii) Resolved further that reported unfair means cases be sent directly to the Board on very date under separate cover duly signed by invigi7ator, Internal and External Superintendents. The case, which does not bear signatures of the above staff, shall not be entertained/considered. The cases of unfair means reported after the date of the paper of examination be not considered/ entertained."

35. It was contended by Mr. Mangi that action against the petitioners could not be taken after the publication or passing the resolution in violation of the said resolution. The respondents pleaded that action was initiated before the resolution was passed and, therefore, . the resolution was no bar. We are not inclined to agree that no action Qan be taken against the offender even when the offence is detected or proved against him ony because due to collusion or fear the invigilator or Superintendent of the centre did not make report immediately. However, such cases should be scrutinized with great care and caution.

36. It is also contended by Mr. Mangi test the petitioners have been punished for the charges other than those communicated to them in the notices. As a matter of fact it was on this ground that the petitions were admitted. it may be pertinent to reproduce the order of the Court admitting the petitions which is as under:‑

37. "We find from the comments submitted by the respondents 1 and 2 in the case that the petitioner was found guilty of impersonation during the examination. However, in the notice served on the petitioner the charges levelled against him were different. In these circumstances the learned counsel for the petitioner contends that the petitioner had no opportunity of defending against the charge of which he was found guilty. The contention needs examination. Admit. Notice."

38. As already pointed the petitioners were charged with having been caught while using unfair means in the papers mentioned in the notice. The petitioner Abdul Latif was further charged with having left marks of identification and that his handwriting in the said paper was different. However, only charge allegedly proved against all the petitioners was impersonation.

39. The words 'unfair means' are wide enough even to include the act of impersonation. No doubt as laid down by the Hon'ble Supreme Court the respondents need not have framed a formal charge but the important basic and minimum requirement is that the person affected should be made aware of the nature of allegations against him and that he should be given fair opportunity to be heard. The opportunity to be heard does not merely mean a mechanical process of hearing affected person but it impliedly casts duty upon the authority to apply its mind rationally and judiciously to decide as to whether the allegations are proved against the offender and whether he has been able to explain the allegations against him. This application of mind need not be that of a trained judicial mind but at least should be such as a prudent person would apply in such circumstances.

40. We have given considerable thought to the question as to whether the charges communicated in' the notices to the petitioners could be considered to have made them aware of the nature d' allegations against them. We cannot bring ourselves to accept that by any stretch of imagination the charges contained in the notice could make the petitioners aware that they were charged with the allegation that somebody else impersonated them and appeared in the examination hall to answer the question papers on their behalf. Of course it would have been different if the petitioners had come in contact with the respondents to find out the nature of the charges against them or if they appeared before the committee and were made aware of the exact nature of the charge and had explained their case. Here the case is different. Two petitioners are alleged to have appeared before. the committee and to have explained their case but their appearance is denied by the respondents. Even if they appeared their explanation obviously does not appear to have been considered by the committee. If they did not appear then as already held, they could not be said to have been made aware of the nature of charges against them. The case of third petitioner, namely, Maqsood Ahmed is altogether ran different footing. Either intentionally or due to oversight he was issued notice for appearance before the committee on 9‑12‑1985. Under the circumstances the impugned order passed by the respondents before that date would obviously militate against the principles of natural Justice. As already pointed the earlier 6 two notices alleged to have been issued to this petitioner have neither been admitted by the petitioner nor have been produced.

41. Similarly we have seen that by only two words 'impersonation proved' the committee had decided the fate of petitioners and sealed it for three years. The order, as already pointed, does not expressly indicate as to what is meant by impersonation. Ordinarily it will mean that the person against whom the charge is proved would have impersonated somebody else. But here again the case is otherwise. Then order in no way indicates that somebody else impersonated the petitioners, which charge is alleged to have been proved against the petitioners. Apparently the order appears to have been passed without judicious application of the mind by tire members of the committee. The committee need not write elaborate order but at least the order should be explicit and speaking order. One should not have to enter into an elaborate inquiry as to find out what was meant by such an order.

42. We are conscious of the growing tendency which has spread like epidemic amongst the students to use all sorts of unfair means in the examination halls. We are also conscious as to how important it is to curb and punish such Tendency but at the same time the students who are just embarking upon their careers cannot be derived of their basic rights of getting fair opportunity to explain the charges against them on which they should be made aware.

43. We accordingly allow the petitions and hold the impugned order passed by respondents Nos. 1 and 2 to be without lawful authority and of no legal consequences. However, the respondents Nos. 1 and 2 are not precluded; if they so desire and if there is sufficient evidence on, the record, to initiate a fresh inquiry in a proper way in the light of above observations against the petitioners. If the respondents so decide the inquiry should be completed as expeditiously as possible preferably within three months. if no such inquiry is initiated the respondents Nos. 1 and 2 are directed to declare result of the petitioners basis of marks secured by them. ,

44. After the arguments were heard and before judgment was pronounced a statement was filed by the learned counsel. for respondent No. 3 to the effect that respondent No.3 has finalized the list of students admitted in the Engineering College. As such the petitions against respondent No. 3 have become infructuous and are dismissed as such.

45. The petitions are disposed of in the terms mentioned above with no order as to costs.

46. A_ A. Order accordingly.