1. DORAB PATEL, J.-The appellant was a final year student in the Nishtar Medical College, Multan. On the 27th of April 1977, be and another student attacked and beat up a Professor of the College in the College premises. In view of this shocking incident the appellant and the other student were suspended pending an enquiry against them by the Disciplinary Committee of the College. And as we are concerned in this appeal only with the case of the appellant, it is sufficient to state here that the order of suspension passed against the appellant was extended from time to time, pending the enquiry against him, therefore, be filed a writ petition in the Lahore High Court against the respondents challenging the orders extending his suspension beyond the period of ten days.
2. However as the appellant could not obtain a stay order from the High Court for the suspension of the enquiry against him, in due course the Disciplinary Committee, after hearing the appellant, concluded its enquiry and submitted its report to the Principal of the College, who is the third respondent in this appeal. And, as a result of the report, the appellant was expelled from the College for a period of three years.
3. This order was passed on 22nd August 1977 (hereinafter called the. Impugned order), and the relevant part reads "And consequent upon this and in view of the recommendations of' the said Disciplinary Committee, the undersigned and the College Academic Council, by virture of powers conferred on this body vide College Prospectus, referred to above, pages 2-3, 111, 2(h) hereby order the expulsion of the above-stated two students from the rolls of the Nishtar Medical College, Multan, for a period of three years academic years with effect from the date of notification of this order (under rules laid down in the College Prospectus referred to above page 40, section H- Offences and Punishments 3-vi, vii and 4-- Regulation relating to rustication and expulsion (ii) read together.
4. They will not be allowed admission in any other medical college during the period of their expulsion. After expiry of this expulsion period their re-admission to another medical college will be considered by the Principal and the College Academic Council, subject to their production of a certificate of good conduct from the concerned District Administration. Failing this, the Principal and the College Academic Council, may not allow their readmission for any further period of time they deem fit."
5. In view of this order, the appellant was permitted by the High Court to amend his writ petition in order to enable him to challenge the order of expulsion passed against him. In the events that happened, the amended writ petition came up for admission before a learned Single Judge of the Lahore High Court on 28th October 1977, and, as the learned Single Judge was of the view that the respondents were entitled to pass the impugned order under section H of the General Disciplinary Rules contained in the prospectus of the Government Medical Colleges of the Punjab for the year 1975-76 he dismissed the writ petition in limine. The appellant challenged this order in an Inter- Court Appeal in the Lahore High Court, but this appeal was dismissed by a Division Bench of the High Court on 19th November 1978, therefore, he filed a petition for leave in this Court against this judgment of 19th November 1978, and as the petition turned on the construction of section H of the General Disciplinary Rules to which I referred earlier, leave was granted in order to examine the question whether the construction placed upon these rules by the learned Judges of the High Court was correct.
6. The rules read; H-Offences and punishments; "(1) For all such offences that occur in the College or hospital premises or in the College hostels, the Principal may at his discretion, refer the case to the College Disciplinary Committee, which is elected by the College Council from time to time. This Disciplinary Committee has the power to interview any student or students or any members of the staff or any member of the public and is empowered to send its recommendations to the Principal who may or may not seek the ratification of the College Council of these recommendations.
(2) College Disciplinary Committee will consist of 2 to 4 Professors/ Assistant Professors of the College.
(3) Disciplinary action by the Principal of the College against the students committing an offence might take one or more of the following forms depending upon severity of the offence :-
(i) The Student may be asked to tender an apology, verbal or written.
(ii) A student may be placed on probation for a fixed period. If during the period of probation he fails to improve his conduct, he may be rusticated or expelled.
(iii) A student may be fined.
(iv) Scholarship may be suspended, or stopped.
(v) A student may be suspended from the rolls of the college for a period not exceeding two weeks at a time excluding the suspension, if any not exceeding 10 days ordered by the Principal of the College, pending enquiry into the misconduct of the student.
(vi) Rustication, expulsion or requiring the student to withdraw from the college.
(vii) Any other punishment.
(4) Regulations relating to Rustication and Expulsion.-(i) Rustication whenever imposed on a College student shall always mean the loss of one academic year in as far as his appearance at a University Examination is concerned. The period of absence from the college will however depend upon the time of the year when the penalty is imposed. The student under rustication may at the discretion of the Principal be permitted to rejoin the class in the beginning of the next academic year.
(ii) A student expelled from a college shall not be readmitted into the same College or to another medical colleges before the expiry of the academic year from the date of expulsion.
(iii) Cases of rustication and expulsion shall be re-ported to the University of the Punjab by the Principal concerned for registration and notifica--tion. If a case of rustication /expulsion is revised by the Principal concerned it shall be reported to the University with reason for revision."
7. I will refer in this judgment to clause (vi) of rule 3 as the said clause: It speaks of rustication, expulsion and requiring the student to withdraw from the college, whilst the next clause speaks of "any other punishment". Do these clauses confer on college Principals the power of imposing several types of punishments namely: rustication, expulsion and some other type or types of punishments? Or do they only empower college Principals to rusticate a student? If these clauses only empower Principals to rusticate a student, this appeal must be allowed, because clause (i) of rule 4 limits the maximum term of rustication to one year whilst the appellant in the instant case has been rusticated for three years. If, on the other hand, these clauses envisage punishments other than rustication, the respondents can contend that such other punishments are not circumscribed by any limit of time, and, therefore, the impugned order is valid.
8. The learned Single Judge was of the view that these clauses or rule 3 (with respect this is not quite clear) conferred on Principals the power of imposing at least three different types of punishments, whilst the Division Bench appears to have been of the view that these clauses empower Principals to impose two types of punishments, rustication and expulsion, and that rustication could only be for one year, whilst expulsion could be for any period, even for the life of the student. This cleavage of opinion in the High Court is somewhat puzzling, therefore, I will first consider the said clause, and I would begin by examining the ordinary dictionary meaning of the words used in the said clause, because, as observed by Maxwell, (the Interpretation of Statutes, Twelfth Edn , p. 28) the first and most elementary rule of construction is that it is to be assumed that the words in a Statute must be construed according to their ordinary meaning, and if A there is no ambiguity about the ordinary meaning of the words which have to be construed, then the Courts would not be justified in altering the ordinary meaning of these words by resorting to complicated canons of l construction.
9. The Oxford dictionary defines the word "rusticate" as "Temporary dismissal from a university, the action of banishment."
10. Similarly according to Chambers' 20th Century Dictionary, the word "rusticate" means banish from a town or a college. Next as to the word "expel", the Oxford dictionary defines it as follows: to eject, dislodge by force from a position, to banish from, compel to quit a place or country. Similarly, according to Chambers' Dictionary the word means drive out, eject, discharge. Now if a student is expelled from a college or a university it means that for the period of the expulsion he is not permitted to attend the college or the university. In other words, he is temporarily dismissed from the college or the university and if he were to try to violate the order of expulsion, he could b.- driven out by the use of physical force. But as that is the same thing as banishing him from the B college or the university, the words "rusticate" and "expel" are synonyms and in holding that they create different types of punishments, the learned Judges have departed from the ordinary meaning of these words.
11. I now turn to the meaning of the words "requiring the student to with--draw from the college." There is no ambiguity about the word "withdraw" but the word "require", according to the dictionaries means; "To demand, exact, to direct (a person to show something), to request, to call for, necessitate."
12. As the word "require" can mean request or direct, the provision which we are examining could mean that the Principal was merely empowered to direct a student to withdraw from the college, or it could mean that the Principal was empowered to request a student not to enter the college.
13. Now if a Principal wishes to make a request to a student, he does not need the authority of rules to do so, and, on the other band, it is clear from a perusal of rule 3 that unlike the preceding clauses, the said clause is a major penalty for a major offence. Therefore, I am satisfied that the word "requiring" has been used in the sense of ordering or directing and the words "requiring the student to withdraw from the college" mean that the Principal can order the student not to enter the precincts of the college for the period specified in his order. Obviously for the period thus C specified the student would be temporarily dismissed or banished from the college. But as this is the same thing as rustication, in my opinion, the only power conferred on the Principal by the said clause is the power of rusticating students.
14. The learned Assistant Advocate-General attempted to defend the view taken in the impugned judgments by relying on the principle that redundancy cannot be attributed to the Legislature. The submission assumes that the prospectus of the general medical colleges of the Punjab for the year 1975-76 (hereinafter referred to as the prospectus) is to be equated with Statutes or bye-laws, and I will presently examine this assumption. But on the footing that the prospectus can be equated with Statutes or bye-laws, it must be borne in mind that the principle that redundancy is not to be attributed to the Legislature is only one of principles for the construction of ambiguities in statutes, and it can be resorted to only when there is an ambiguity in a statute. But, there is no ambiguity in the said clause, and we cannot create an ambiguity in what is clear by applying the principle that redundancy is not to be attributed to the Legislature. And, as on the other hand, the prospectus bears all the marks of hurried drafting, in my humble opinion, the said clause is a clear case of tautology.
15. I may also point out here that the learned Assistant Advocate-General was not able to advance any arguments in support of the view of the learned Single Judge that the words "requiring the student to withdraw from the college" in the said clause created a third type of punishment different from those created by the preceding words in the said clause. He, however, invited us to hold that the said clause created two types of punishments, rustication and expulsion, but if the words "requiring the student to withdraw from the college" are mere tautology, would we be justified in altering the ordinary meaning of the words rustication and expulsion in order to hold that they meant different things? According to the learned Assistant Advocate-General we would be justified in so doing, because the said clause had to be read with rule 4, and if it was so read, it was ambiguous and, therefore, the first two clauses of rule 4 clarified the position by defining the meaning of the words "rustication" and "expulsion". In support of this plea, learned counsel pointed out that according to clause (i) of rule 4 rustication cannot exceed one year, whilst clause (ii) of the rule, which uses the word "expelled" and not rustication, does not prescribe any limit for the period of expulsion, therefore, learned counsel's submission was that for the purpose of the prospectus the rule-maker had altered and defined the meaning of the word rustication in clause (i) of rule 4 to mean rustication for not more than one year, and similarly, by clause (ii) of the rule, the rule-maker had altered and defined the meaning of the word expulsion to mean rustication for any period exceeding one year, be it one year and one day or be it for life.
16. I agree with the submission advanced only to the extent that a Statute has to be read as a whole.
17. So, for example, if the words in the said clause are ambiguous, they have to be construed in the light of the circumstances in which they occur and I also agree with the submission that the said clause cannot be examined in isolation, and that it should be read with rule 4. But, as the words "rusticate" and "expulsion" mean the same thing, the precise question before us is whether it can be said that rule 4 has altered the ordinary meaning of these words by some express provision or by necessary intendment. Now according to Mr. Riaz, this rule had beenenacted as a definition clause, because the word "rustication" had been defined as banishment from the college for a period of one year, whilst the word "expelled" had, by implication, been defined as banishment from the college for any period exceeding one year be it more than one year by one day or be it for life. I am not able to agree with this submission. In the first place, if the rule-maker had intended to give his own definitions, would he not have adopted the normal course of enacting a definition clause ?
18. That he did not do so is significant. Secondly, as the said clause does not confer a power on the Principal to grant a pardon to a student who is rusticated, some provision in this respect was necessary, and this is what is enacted in clause (1) of rule 4. Similarly could the rule-maker have intended to give to Principal the power to rusticate a student for life ? I do not think so, because the rules do not define the offences for which a student can, be rusticated and as the matter is left almost entirely to the Principal' discre tion, some provision bad to be made for limiting the period of rustic--tion, and the object of clause (i) of rule 4 is thus to put a maximum limit on the Principal's power of rustication and also to empower the Principal to grant a pardon to a student who is repentant, therefore, I am not able to accept the submission that this clause has been enacted in order to alter the meaning of the word "rusticate".
19. I now turn to clause (ii) of rule 4. Unlike the clause (i), as this clause uses the word "expelled" and does not contain any provision for limiting the period for which a student can be expelled, the learned Assistant Advocate --General submitted that the absence of an express provision limiting the period of expulsion manifested the intention of the rule-maker to alter the ordinary dictionary meaning of the word "expelled". The argument begs the question, because such an express provision would have been necessary only if the meaning of the words "rusticate" and "expel" had been different, but as these words are synonyms, an express provision about the period of rustication or expulsion would have been redundant. But then according to Mr. Riaz, this clause would become redundant, unless it was construed as a definition of the word "expelled". The short answer to this submission is that it is belied by the contents of the clause. The clause empowers the Principal of a college not only to expel a student from his college, but, so to say, to expel him from all other medical colleges. This was a power which was conferred in the past only on universities, and as the writ of a Principal cannot run beyond the precincts of his college, in the absence of a provision such as is to be found in this clause, an order by a Principal to a student of his college not to attend other colleges would be as ineffective as an order by a Principal to the tides to turn back. Thus this clause confers a unique power on college Principals, which I can only describe as a leap in the dark, and I would pause to observe here that I cannot help entertaining grave doubts about the validity of this clause, because an order of rustication passed by a college Principal does not have any statutory sanction. Therefore, if in the instant case, the appellant had been entitled to admission in some other medical college on the usual merit basis, it is difficult to see how the Principal of another medical college could have refused him admission solely on account of the impugned order. However, whether the clause be a valid or not, it is clear that it has been enacted in order to confer on college Principals powers which used to vest formerly in universities only. Once again, therefore, I cannot accept the learned Assistant Advocate-General's plea that the object of this clause was to enlarge the vocabulary of the English language by altering the meaning of the word "expel" when used in reference to the expulsion of a student from a college or a university.
20. The learned Assistant Advocate-General then pointed out that if we construed the words "rusticate" and "expel" according to their ordinary meaning, the Principal of a medical college would not be able to rusticate a student for more than one year, no matter how gross his misconduct. This is correct. But, according to the learned Assistant Advocate-General, as college Principals required wider powers of rusticating students for the maintenance of discipline in their colleges, he submitted that we should place a very liberal construction on these rules in order to give effect to the object, which was the maintenance of discipline in colleges. Now there is no one who would not subscribe to the laudable object of maintaining discipline in educational institutions, but on the view which I have taken, apart from the other minor punishments, a Principal can rusticate a student for a period not exceeding one year, whilst on the construction sought to be placed on rule 4 by Mr. Riaz, a Principal would have the power of rusticating a student for life, and that under rules which confer almost unfettered discretion on him and yet do not give a right of appeal against his decision. Therefore, the plea advanced assumes that the object of rules 3 and 4 is the maintenance of discipline by the use of arbitrary power and the imposition of Draconian punishments. But, learned counsel was not able to refer us to any provisions in the prospectus in support of this precise plea, and, on the other hand, we have no means of knowing whether discipline will be better maintained by conferring on Principals the power of inflicting reasonable and well-defined punishments, or, whether it will be better maintained by conferring on Principals the power of inflicting punishments of extreme severity in their sole discretion, therefore, I would only observe that there is nothing in the object of rule 4 or of the prospectus to support the construction sought to be placed on rule 4 by the learned Assistant Advocate-General.
21. The learned Assistant Advocate-General then pointed out that his submission was supported by the view taken in the judgments under appeal. That is correct. Both the judgments under appeal assume that a very liberal and benevolent construction had to be placed upon rules 3 and 4, but, the learned Judges have not given any reasons for the view thus taken by them and their attention was also not drawn to the principle that provisions relating to the jurisdiction of domestic Tribunals are always construed strictly. That was unfortunate, because when a Principal orders punishment under these rules, he is sitting as a domestic Tribunal. However, as submitted b learned counsel, it is possible that the learned Judges took the view which they did, because they were of opinion that the prospectus had to be construed in accordance with the principles for the construction of Statutes. I regret my inability to agree with this view, because the prospectus has not been framed by any Legislature. It has not even been approved by any Legislature, and it is not known whether the Legislature was even informed of its existence. As this was not disputed by the learned Assistant Advocate-General, we enquired whether the prospectus had been framed under the Statutes of the University. His answer was in the negative and he could not even make a statement from the Bar that the prospectus had been framed under the powers conferred by some Legislation. Therefore,) as indicated earlier, it does not appear to have any statutory sanction and h it is probably nothing more than an offer by the Government of the conditions under which it would admit students to the colleges run by it. However, as this aspect of the case is shrouded in obscurity if not in mystery, I will examine the question whether rules 3 and 4 should be construed liberally both on the footing that they should be equated with subordinate legislation like bye-laws as submitted by the learned Assistant Advocate-General and on the footing that they should be equated with the terms of a contract.
22. On the footing that the prospectus is or can be equated with a bye-law, Craies observes in his Treatise on Statute Law, Seventh Edition, page 325: "There are five main grounds on which the bye-laws may be treated as ultra vires-----
(a) That they are not made sanctioned and published in the manner prescribed by the statute which authorises the making of them.
(b) That they are repugnant to the laws of England.
(c) That they are repugnant to the statute under which they are made.
(d) That they are uncertain.
(e) That they are unreasonable."
23. Even on the footing that the prospectus is some sort of bye-law, it would not be possible for us to decide whether it is repugnant to the statute under which it was framed and whether or not it has been duly sanctioned and published, because as I said its origin is shrouded in mystery.
24. Nonetheless, the rules can be challenged .On the ground that they are repugnant to the laws of the country or on the ground that they are uncertain or unreasonable. And I am disturbed by the question whether any Legislature could confer on a domestic Tribunal the arbitrary power which could be exercised by Principals, if we place a liberal construction on rules 3 and 4. So the question is of the test by which the reasonableness of a bye-law is to be judged, and as pointed out by Craies the case of Kruse v. Johnson ((1) (1898) 2 Q B 9:) has made a new departure in the construction of bye-laws by drawing a distinction between the bye-laws of a company or of a corporation and the bye-laws of public bodies to whom large powers are entrusted by the Legislature. As this leading case might be of assistance to the submissions advanced by the learned Assistant Advocate-General, it needs to be examined in some detail.
25. The facts in this case were that the appellant was a very devout person, who insisted on conducting a religious service within fifty yards of a dwelling house, but the county of Kent in which this house was situated, had framed a bye-law under the Local Government Act prohibiting the playing of music within fifty yards of any dwelling house. Further, cognizance of an offence under this bye-law could be taken by any Police constable. As the religious service conducted by the appellant included the singing of hymes, he was convicted under the bye-law. He challenged his conviction before a Divisional Court on the ground that the bye-law was unreasonable, because the perfor--mance of a Christian religious service in a Christian country could not be an offence and the case turned on the question whether the bye-law should be construed liberally or strictly.
26. As the majority view of the Court was that the bye-law had to be construed liberally, the appellant's conviction was upheld and Russell, C. J., observed at page 97; "I have thought it well to deal with these points in some detail, and for this reason that the great majority of the cases in which the question of bye-laws has been discussed are not cases of bye- laws of bodies of a public representative character entrusted by Parliament with delegated authority, but are for the most part cases of railway companies, dock companies, or other like companies, which carry on their business for their own profit, although incidentally for the advantage of the public. In this class of cases it is right that the Courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable exercise to the public disadvantage. But, when the Court is called upon to consider the bye-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, "benevolently" interpreted, and credit ought to be given to those who have to administer them that they will be reasonably ad-- ministered. This involves the introduction of no new canon of construction. But, further, looking to the character of the body legislating under the delegated authority of Parliament, to the subject-- matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think Courts of justice ought to be slow to condemn as invalid any bye-law, so made under such conditions, on the ground of supposed unreasonableness."
27. I agree with these observations except the last observation, because I have no doubt that this judgment marks a departure from the earlier law.
28. Next as to the reasons for the distinction thus drawn between the bye--laws of public representative bodies and the bye-laws of companies like dock companies and railway companies, the learned Chief Justice referred to the provisions of the Local Government Act under which the bye-law had been framed and observed: - "What are the checks or safeguards under which this very wide authority of making bye-laws is exercisable ?. . . We thus find that Parliament has thought fit to delegate to representative public bodies in towns and cities, and also in countries, the power of exercising their own judgment as to what are the bye-laws which to them seem proper to be made for good rule and government in their own localities. But that power is accompanied by certain safeguards. There must be antecedent publication of the bye-law with a view, I presume, of eliciting the public opinion of the locality upon it, and such bye-laws shall have no force until after they have been forwarded to the Secretary of State. Further, the Queen, with the advice of her Privy Council, may disallow the bye- law wholly or in part, and may enlarge the suspensory period before it comes into operation. I agree that the presence of those safeguards in no way relieves the Court of the responsibility of enquiring into the validity of bye-laws where they are brought in question, or in any way affects the authority of the Court in the determination of their validity or invalidity. It is to be observed, moreover, that the bye-laws having come into force, they are not like the laws, or what were said to be the laws, of the Modes and Persians--they are not unchangeable. The power is to make bye-- laws from time to time as to the authority shall seem meet, and if experience shows that in any respect existing bye-laws work hardly or inconveniently the local authority, acted upon by the public opinion, as it must necessarily be, of those concerned, has full power to repeal or alter them.
29. It need hardly be added that, should experience warrant that course, the Legislature which has given may modify or take away the powers they have delegated."
30. I agree with the law laid down in this passage, and I would decide the question whether we should construe the prospectus "benevolently" in the light of the criteria laid down by Russell, C. J., in this passage. Unlike the bye-law in Kruse's case, the prospectus has not been prepared by any representative public body. Secondly, unlike Kruse's case, the prospectus has not been prepared in the exercise of powers conferred or delegated by any Legislature. Thirdly, unlike Kruse's case, there is no way of amending the prospectus, except of course by the crude method of public agitation.
31. Fourthly unlike Kruse's case, the prospectus has been prepared without eliciting public opinion.
32. Thus the prospectus does not satisfy any of the criteria laid down by the learned Chief Justice for construing a bye-law liberally, and, on the other hand, as the question before us is also of the powers of a domestic Tribunal, we have to construe the prospectus very. Strictly, but this is fatal to the impugned order.
33. I would now examine the question on the assumption that the prospectus is to be equated with a contractual document. Even on the assumption that the prospectus can be equated with a contractual document, I am of the view that apart from the minor penalties prescribed in the first five clauses of rule 3, the only power of punishment conferred on college Principals under the said clause is the power of rusticating a student for a period not exceeding one year. But, in view of the clumsy manner in which clause (ii) of rule 4 has been drafted, it can be contended that this clause is ambiguous, and as the plea of the respondents is that this ambiguity should be construed in their favour by holding that this clause was drafted in order to empower college Principals to rusticate students for more than one year, the short point is whether an ambiguity in a deed can be construed in favour of the author of the deed.
34. Odgers in his Construction of Deeds and Statutes, Fifth Edition, observes at page 95; "Words are to be construed, in the case of doubt, against the person or party who uses them provided this construction works no wrong. This means that if two possible meanings remain after all admissible evidence to arrive at the true meaning has been employed, then that meaning will be adopted which is most against the person using the words or expressions which have given rise to the difficulty in construction, subject to this, that the construction thus adopted must not work a wrong. Judicial pronouncements about this rule stretch back a long way."
35. On the law laid down in this passage, even though the construction sought to be placed upon clause (ii) of rule 4 is a possible construction, and the respondents cannot put their case higher, this construction must be rejected, because the respondents are the authors of the prospectus.
36. Accord--ingly, on this ground also, I would hold that the said clause read with rule 4 only envisages the punishment of rustication for not more than one year.
37. However, although the said clause read with rule 4 envisages only one punishment, I am disturbed by the residual clause of rule 3, clause (vii). This clause follows the said clause and reads : "any other punishment." Can the impugned order be saved by this clause ? I do not think so, because rustication is rustication, whatever be the period of rustication, therefore," whilst the construction of this clause is not free from doubt on the whole, I am of opinion that rustication does not become another punishment within the meaning of this clause, merely because the duration of the penalty imposed exceeds one year. But if I am wrong, as the appellant had agreed to abide by the terms and conditions of the prospectus, and as this clause is one of terms of the prospectus, is he not bound by it ? This is one way of looking at the matter. However a contract implies a voluntary agreement between the parties, and it would be naive in the extreme to assume that the appellant could have objected to this residual clause on the ground that it was invalid. But the prospectus is obviously not like an ordinary commercial document, and as Principals do not administer largesse when they admit students to Government colleges, we are entitled to assume that the appellant was admitted into the Nishtar Medical College only because he had proved his right of admission into the college. Therefore, it is a moot point whether M documents of this nature should be construed like ordinary commercial agreements. I have given anxious thought to this aspect of the case, the more so as there is no pronouncement by this Court on the precise question which has thus arisen, and, I have found great assistance from a judgment of Denning, L. J., in Bonsor v.
38. Musicians' Union (1954) 1 All E R 822).
39. The dispute in this case was between a Trade Union and a member of the Trade Union. The rule of the Trade Union which led to the dispute between the parties was an oppressive rule, as in the instant case, but membership of the Trade Union was a condition of the appellant's employment as a musician, and one of the questions before the Court was whether the rules of the Trade Union should be construed strictly or in the words of Russell, C. J., benevolently. Denning, L. J., observed "Although our task is to construe the rules of the Union which constitute the contract between the plaintiff and the Union, these rules are a contract in theory rather than in fact. A true contract requires the agreement of parties freely made with full knowledge and without any feeling of constraint. That was not so in the present case. The Union was a `closed shop'. In order that a person should be allowed to work at his Trade he had no option but to sign a document agreeing to the rules. The plaintiff himself said I did not want to be a member of it. I would like to tell his Lordship (Upjohn, J.) that if I could earn my living forthwith without being a member of this so-called Musicians' Union I would not want to join it, but I have got to join it in order to work, because it is a closed shop. . . If I am re-admitted I will always pay my subscrip--tions, but I will not take any active part in Union matters. I will be a member by force, because, I am forced to be a member.
40. Rules applied to a man in that state of mind are less a contract, as we used to understand a contract, than a legislative code laid down by some, to be imposed on all members of the Union.
41. They are more like bye-laws than a contract. In these circumstances, the rules are to be construed not only against the makers of them, but, furthermore, any rule found to be contrary to natural justice or, what comes to the same thing, to what is fair and reasonable, will be held to be invalid: see Lee v. Showmen's Guild of Great Britain (1952) 1 All E R 1175 and Kruse v. Johnson (1898) 2 Q B 91."
42. These observations relate to rules affecting a man's right to earn his livelihood, whilst the rules in the instant case, namely : the prospectus, relate to admissions to educational institutions, but I do not think anything turns on this difference, because the appellant wants to earn his livelihood by practicing the honourable profession of a doctor, and as he cannot become a doctor except by receiving his training in a medical college, to deny him admis--sion ) a medical college would, for almost all practical purposes, amount to depriving him of his right to earn his living as a doctor, so I see no reason in principle why the rule in Bonser's case should not be applied to the instant case. It is true that the college in which the appellant was admitted is owned by the Government. But the authorities running Government college cannot administer them as if they were their private fiefs, therefore, in m opinion, the rule of strict construction should be applicable with greaterforce to the instant case. Indeed for reasons which I will presently give, the prospectus must be construed even more strictly than the rules of Trade Unions, and, therefore, any provision in the prospectus which is unfair or unreasonable must be struck down as invalid.
43. Now as the prospectus has to be construed strictly, we cannot enlarge the penal powers of college Principals by altering the ordinary meaning of the words "rusticate" and "expel", and as we cannot alter he meaning of these words, it follows that the said clause read with rule 4 empowers college Principals to inflict only the punishment of rustication for a period of not more than one year.
44. I observed earlier that I was disturbed by the words "any other punishment' in clause (vii) of rule 3.
45. This was on the assumption that the prospects had to be construed as an ordinary commercial agreement, but as it must be construed as if it were a bye-law, it is necessary to examine first the validity of this clause, and according to Denning, L. J., "any rule found to be contrary. . . To what is fair and reasonable will be held to be invalid." But Denning, L. J., did not have occasion in Bonsor's case to examine the criteria for determining what was reasonable and fair. This question was, however, examined by Russell, C. J., in Kruse's case, and Russell, C. J., drew a distinction between the bye-laws of public representative bodies and bye-laws made by "railway companies, dock companies or other like companies" and held that a benevolent construction had to be placed on the former, but not on the latter. Now, whilst examining this case, I explained why the prospectus could not be equated with the bye-laws of public representative bodies. On the other hand, unlike the manner in which the prospectus has been framed, the rules of a Trade Union reflect the consensus of the members of the trade Union, and not only are these rules framed on the basis of the wishes of the members, but as they can always be changed by the members, the rules of Trade Unions can fairly be equated with the bye-laws of public representative bodies. But as I have explained, the prospectus cannot possibly be equated with the bye-laws of public representative bodies, therefore, the dictum of Russell, C. J., in Kruse's case that "Courts of justice ought to bes low to, condemn as invalid any bye-law . . . On the ground of supposed unreasonableness" would not be attracted to the question whether the rules in the prospectus are reasonable or unreasonable, and with these observations, I would examine clause (vii) of rule 3.
46. The first six clauses, which precede this clause, specify the punishments which can be inflicted on students in an ascending order of severity, and as the said clause, which is the last of these six clauses, prescribes rustication, it is difficult to envisage the punishments contemplated by the words "any other punishment", unless it be corporal punishment, because as far as I can see, that is the only punishment not entirely unknown in educational institutions which has not been specified in the six preceding clauses. But I find it difficult to believe that this clause was enacted in order to empower college Principals to inflict corporal punishment. Mr. Riaz only wanted us to hold that this clause was wide enough to include rustication for more than one year, but if it is wide enough to include rustication for one year, it is clear that it should include rustication for life, and no rule- maker would have conferred such a power on College Principals without prescribing clear guidelines for the exercise of such a vast power. But, as I pointed out earlier, the prospectus contains hardly any guidelines for the exercise of this power. Secondly, whatever be the true meaning of the words "any other punishment", as they can only mean some punishments or punishment other than those specified in the rule, if a Principal punishes a student under r this clause, the punishment inflicted is necessarily one which was not known to the student and which the student had no means of knowing at the date of the offence committed by him. Can such a punishment be fair or reasonable? It can perhaps be contended that the scope of the words "any other punishment" cannot be very wide, because they have to be read ejusdem generic with the punishments specified in the earlier clauses. But what other punishments would be similar to those specified earlier? I am disturbed by this aspect of the case, because the earlier punishments are almost exhaustive of the punishments known in educational institutions. However, even on the footing that clause (vii) should be construed ejusdem generic with the clauses which precede it, such a construction would narrow the meaning of the words "any other punishment", but it would no alter the fact that the punishment inflicted on a student under this clause would be a punishment unknown to the student at the date of the offence committed by him, because it could only be a punishment not specified in the list of punishments set out in rule 3, therefore, in my humble opinion, this clause is invalid.
47. Any other view would also be inconsistent with the objects of Article 12 of the Constitution. This Articles reads: "12.-(1) No law shall authorize the punishment of a person---
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater: than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence."
48. The Article speaks of punishment and so does the prospectus However, it is not necessary for us to go into the question and whether the Article is applicable in terms to the prospectus. Even if it is assumed that then Article is not applicable in terms to the prospectus, the principles enshrined in it are relevant to the determination of the question whether any bye-law or any provision which has to be construed like a bye-law is just and fair, therefore, what is relevant to the instant case is the principle laid down in clause (b) that no law "shall authorize the punishment of a person . . . Foran offence by a penalty. . Of a kind different from the penalty prescribed by law for that offence at the time the offence was committed." As the penalties in the prospectus are set out in the first six clauses of rule 3, and as a penalty falling under clause (vii) of the rule would necessarily be different from that prescribed in the earlier clauses. It is obvious that this clause is neither fair not reasonable in the light of the principles laid down in Article 12.
49. I would also observe here that I am disturbed by the question whether the power to create a type of punishment can be delegated, as has been attempted to be done in the residual clause of rule
3. However, as grope arguments have not been addressed on this question, I would leave it open for determination on another occasion.
50. Finally, as I suggested earlier, if the residual clause of rule 3 includes the power to rusticate a student for life, for the reasons which I have given, the power thus conferred would be a totally arbitrary power, and the fact that it may not have been exercised arbitrarily in the instant case cannot save the impugned order, because the principle laid down in Kruse's case that "credit ought to be given to those who have to administer (bye-laws), that they will reasonably be administered" cannot be applied to the instant case, as the prospectus cannot be equated with the bye-laws of public representative bodies.
51. In the result , the impugned order is invalid as the third respondent cannot rusticate a student for more then one year. Accordingly, I would ser aside the judgments under appeal, and allow the writ to the extent that I would declare that the appellants rustication was valid for one year only .I would, however ,not award any costs as the appeal turned on difficult questions of law which were not covered by any pronouncement of the superior court of the country.
52. Waheed Ahmed, J---I agree with the conclusion.