1. C.M.A. No,8246 of 2005 NADEEM AZHAR SIDDIQI, J.--- By filing this application the plaintiff has prayed that defendant may be restrained from barring the plaintiff from continuing with his medical education at the Agha Khan University pending final decision in this matter. The case of the plaintiff is that he was admitted as student in 2002 and enjoyed satisfactory academic record. On 15-9-2004 he along with other several students decided to get together to celebrate the end of examination and some of the students present decided to celebrate the end of exams. by trying drugs and were in possession of heroin. The plaintiff submits that neither he was in possession of drugs nor use the drugs and was only party of college party. Unfortunately one of the students, namely, Asad Aftab has a fatal reaction and died on 16-9-2004 and a F.I.R. was registered and the plaintiff was one of the accused and was granted pre-arrest bail. The plaintiff had received notice dated 9-12-2004 requiring the plaintiff to appear before the disciplinary committee on a date to be subsequently notified. By notice dated 28-1-2005 the plaintiff was required to appear before the disciplinary committee on 3-2-2005. The plaintiff appeared before the committee and vide letter, dated 4-5- 2005 he was expelled from the University on the ground of guilty of aiding, abetting and possession of the prohibited drugs and his enrolment was terminated. The plaintiff filed appeal and review but to no avail. The plaintiff after availing the remedies filed the suit and application challenging the expulsion order, dated 4-5-2005. The defendant filed written statement and counter-affidavit. The defence of the defendant is that admittedly the plaintiff was involved in transporting drugs to the University, facilitating the consumption, suppressing and concealing material information lying to the police and University authorities, lying to his aunt, bribing the police, facilitating the destruction of material evidence and showed a disregard for the safety of others. It was submitted in the counter-affidavit that by his own statement the plaintiff admits that he and other medical students went to buy illegal drugs and the drugs were brought to University in his car with his consent and knowledge. It is further submitted in the counter-affidavit that a disciplinary committee comprising five senior University faculty members thoroughly investigated the matter during which it was incontrovertibly established that the plaintiff had gone for purchase of illegal drugs in his (aunt's) car and transported the drugs to University and made available the same for use of students. It is further stated in the counter-affidavit that the plaintiff was expelled after thorough investigation, which process took over six months.
2. The learned counsel for the plaintiff contended that no proper opportunity of hearing was afforded to the plaintiff and the material on the basis of which the plaintiff was expelled was never supplied to the plaintiff in spite of letter written by his father. He further contended that the plaintiff was expelled malafidely under the pressure of media and to save others. He also contended that the allegations are of serious nature and is a stigma upon the future career of the plaintiff and require serious enquiry in the matter. He further contended that the plaintiff was expelled by a non- speaking order, the enquiry was illusory and no opportunity to confront the material was afforded to the plaintiff and that the mala fide of the defendant is apparent from the fact that enquiry was not finalized within fourteen days as provided under Rule 4.3 of Disciplinary Procedure (Rules). He submits that plaintiff has made out a prima facie case in his favour and the balance of convenience is in favour of grant of injunction as his education is at stake and in case the injunction is not granted the whole career of the plaintiff will be ruined.
3. The learned counsel for the plaintiff relied upon the following reported cases:--
(1) Majid Malik v. Karachi Grammar School 2004 CLC 1029;
(2) Dacca University v. Zakir Ahmed PLD 1965 SC 90; (3) Raziuddin v. PIA PLD 1992 SC 531; (4)
4. University of Punjab v. M. Zaheer 1985 SCM R 802.
5. The learned counsel for the defendant contended that the plaintiff was expelled on the basis of his own admission made during enquiry and all the admissions made by the plaintiff in his statement made before the enquiry committee were clearly stated in the counter-affidavit which were not specifically denied by the plaintiff. He refers Order VIII, rule 4, C.P.C. and submits that evasive replies amounts to admission. He contended that the application as filed is not maintainable and under the guise of temporary injunction the plaintiff, in fact, prayed for mandatory injunction as at the time of filing of injunction application the plaintiff was already expelled from the University and at this stage no mandatory injunction can be granted. He further contended that grant of relief as claimed by the plaintiff at this stage amounts to grant of final relief without trial, which is not permissible. He further contended that injunction can only be granted to maintain the position as on the date of filing of the suit and not to create a new situation. He contended that since the plaintiff has failed to rebut the allegations levelled against him in the counter-affidavit he failed to make out a prima facie case in his favour and that balance of convenience is not in favour of grant of injunction and in case the injunction is granted the University prestige will be at stake.
6. The learned counsel relied upon the following reported cases:--
(1) Ferozuddin Ahmed v. TCP 1987 M LD 124 (S.B. Karachi);
(2) Muhammad Yousuf v. Ahmed Saeed 1999 M LD 3354 (S.B. Lahore); (3) Iftikhar Siddiqi v. Clifton Cantonment Board PLD 1988 Kar. 373 (S.B.); (4) Muhammad Ilyas v. Islamia University 2000 M LD 228 (S.B. Lahore); (5) M. Farukh Fayyaz v. Aitchison College Lahore 1997 M LD 928 (S-.B. Lahore); (6)
7. Shehla Rubab v. Mst. Nighat Saifullah Khan 1996 M LD 1099 (S.B. Lahore); (7) M. Ayub v. Pakistan 2001 YLR 3030 (S.B. Karachi).
8. I have heard the learned counsel for the parties and perused the record.
9. The allegations against the plaintiff are of very serious nature. In the notice dated 9-12-2004 it was alleged that plaintiff was involved in possession and use of drugs on campus and it was further alleged that use of drugs in the campus is not permitted and the violation is an incident of serious misconduct. According to Rule .2(j) of the Agha Khan University Disciplinary Procedure (Rules), possession, use and display of fire-arms, drugs, alcohol or other contraband items on campus or at University related events constitute Disciplinary Offences. Rule 3 of the aforesaid Rules provides the actions which can be imposed and Rule 3(c) provides expulsion from the University.
10. The first question before me is whether the plaintiff was expelled after affording him proper opportunity to defend himself or not and the powers vested under the University has been property exercised in accordance with the rules of the University and the principles of natural justice. The rules do not provide any procedure for conducting the enquiry. The plaintiff was called and his statement was recorded. From the expulsion order it is revealed that others were also examined and corroborated the statement of the plaintiff. The assertion of the defendant is that the statement of the plaintiff is sufficient to expel him and that the specific allegations levelled against the plaintiff in counter-affidavit has not been specifically denied. The contention of Mr. Salahuddin Ahmed is that neither the plaintiff was allowed to fully participate in the enquiry proceedings nor such proceedings were supplied to him nor any material was placed before him for the purpose of rebuttal. The defendant has also not placed on record of this case any material. The explanation offered by Mr. Qazi Faez Isa is that to maintain secrecy and security of others proceedings were not supplied to the plaintiff. He further submits that in pursuance of order, dated 15-11-2005 all material was placed before the learned counsel for plaintiff who have neither demanded copies of the same nor filed any application in this regard. He had offered that if Court directs he can place on record all material in Court in sealed envelope for the perusal of the Court. Mr. Salahuddin Ahmed has submitted that the statement of plaintiff and others are in form of audio cassette and he is not in a position to confirm whether the voice in the audio cassette was of the plaintiff or his friends.
11. From this it is established that neither the proceedings were supplied to the plaintiff nor produced in Court. Any enquiry without supplying the proceedings to the plaintiff has no legal value as unless the proceedings are supplied to the plaintiff he was not in a position to properly rebut the same.
12. Similarly, any statement recorded against the plaintiff in his absence without affording right of cross-examination has no legal value and cannot be used against plaintiff. In the case in hand the career of a student is involved who was expelled from the University on the ground of misconduct.
13. The enquiry was not properly held and no proper opportunity was afforded to the plaintiff to defend himself. This makes a good prima facie case in. favour of the plaintiff. In the case of Muhammad Ilyas the Court while refusing to grant relief in constitutional jurisdiction held that Committee of Indiscipline and Misconduct of the University provided full opportunity to the petitioner. In the case of Muhammad Farukh Fayyaz the relief was refused on the ground that college did not become nor existed as statutory body thus non-amenable to writ jurisdiction. In the case in hand the defendant is a statutory body. In the case of Shehla Rubab the relief was refused in constitutional jurisdiction on the ground that no constitutional right of petitioner has been infringed and/or violated. In recent pronouncement reported as Majeed Malik v. Grammer School 2004 CLC 1029 a learned Division Bench of this Court while dealing a case of students expelled from a private school has held that "even when the respondent is not a department of the Government or an institution substantially owned and managed by it, an element of public duty to impart proper education to students who fulfil the fee requirement and agreed to abide by the disciplinary and other regulations of the school is always present. Such duty with all public powers must be exercised fairly and honestly irrespective of strict legal right existing in favour of the student". In the case of the University of Dacca v. Zakir Ahmed PLD 1965 SC 90 the Honourable Supreme Court held as under:-- "This Court has already had occasion to point out in at least three cases, namely, in the cases of the Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45, Faridsons Limited v. Government of Pakistan PLD 1961 SC 537 and Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461 that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness."
14. In view of the above it is clear that the defendant has not been allowed proper opportunity of hearing to the plaintiff and a strong prima facie case has been made out.
15. The other question before me is whether the relief claimed can be granted. In the plaint apart from other reliefs the plaintiff has claimed that defendant may be permanently restrained from interfering or creating any obstacles to the plaintiff's lawful continuation of his medical studies at the Agha Khan University. In the application in hand the plaintiff prayed that the defendant may be restrained from barring the plaintiff from continuing with his medical education at the Agha Khan University. Mr. Qazi Faez Isa firstly submits that the relief claimed by the plaintiff has become infructuous by lapse of time as expulsion order was passed on May 4, 2005, which attained finality and, secondly, the prayer is in the nature of mandatory injunction which cannot be granted at this stage. Mr. Salahuddin Ahmed submits that the relief which is ancillary to the main relief can be granted and the Court has power to mould the relief. The other objection of Mr. Qazi Faez Isa is that the grant of relief claimed in the application amounts to grant of final relief. Mr. Salahuddin Ahmed submits that final relief is the relief of permanent injunction and damages. The relief claimed in this application is temporary in nature and any relief granted while hearing application under Order XXXIX, rules 1 and 2, C.P.C. is subject to final adjudication of the suit, granting of temporary relief does not amount to granting final relief as in case the suit is dismissed the interim order will merge in the final order and no right can be claimed by the plaintiff on the basis of interim order. As far as mandatory injunction is concerned the plaintiff has only claimed that he may be allowed to continue with his medical studies, this relief can be granted subject to decision in the suit and will not amount to grant of mandatory injunction at interlocutory stage. By applying the principle of moulding the relief the relief can be granted by way of suspending the operation of expulsion order. In the case of Ferozuddin v. Trading Corporation of Pakistan the plaintiff apart from declaration and damages claims permanent mandatory injunction for directing the defendant No,1 to release the last installment of loan and in this context the Court has held that grant of interim relief would tantamount to passing of decree in his favour at least a part of his claim. The situation is different in this case. In Muhammad Yousuf v. Ahmed Saeed injunction was refused on the ground that Moga had already been removed before filing of the suit and that no mandatory injunction could be granted under Order XXXIX, rules 1 and 2, C.P.C. except in exceptional circumstances to restore the status quo as on the date of filing of suit and not before the same. In the case of Iftikhar Siddiqui v. Clifton Cantonment Board the relief of mandatory injunction requiring defendants to allow construction of additional storeys was turned down. In the case of M. Ayub v.
16. Federation of Pakistan it was held that for grant of mandatory injunction there should be a very strong prima facie case and it should be shown that if the relief of injunction is not granted in the form of mandatory injunction very purpose of the suit will be frustrated. From the perusal of the above reported cases it can be seen that grant of mandatory injunction is permissible on showing a very strong prima facie case. As stated above in this case career of a student is involved. In case the injunction is not granted and in the end the suit was dismissed no harm will be caused to anyone, but in case the suit is decreed the plaintiff will suffer irreparable loss which cannot be calculated in terms of money. The class fellows of the plaintiff has already one year ahead from the plaintiff and in case the injunction is not granted the plaintiff will not be in a position to compete them and his career as a medical student comes to an end.
17. In view of above discussion the application is allowed as prayed and the plaintiff is allowed to attend the classes at his own cost and risk subject to decision of the suit.
18. Before parting this order it is observed that in case the plaintiff is found indulging himself in activities which constitute Disciplinary Offences the defendant is free to institute proceeding against the plaintiff and to take action in accordance with law and rules of the defendant and this order will not come in the way of the defendant.
19. Assessm ent made and finding given in this order is tentative in nature and is subject to prove at the trial of the suit.
20. The application is allowed with no order as to costs.