' Muhammad Amjad, petitioner was found guilty of having used unfair means in the Intermediate Examination of the Board of Intermediate and Secondary Education, Lahore held in Autumn 1978 as on 28th January, 1978, a chit containing objectionable material was discovered from under his answer book by the Inspector of the Inspection Committee who paid a surprise visit to the Examination Hall in Islamia High School, Bhati Gate, Lahore where the petitioner was solving his paper. The petitioner was served with a charge-sheet by the Discipline Committee of the Board and after considering the petitioner's reply the said Committee found that the charge against the petitioner was proved. The petitioner was accordingly disqualified from the examination in which he appeared together with one more examination to be held subsequently. The decision of the Committee was conveyed to the petitioner on 31st January, 1979 and the appeal against the said decision filed before the Jury of Appeal was dismissed on 3rd March, 1979. Subsequently the petitioner challenged the order of the Discipline Committee as also that of Jury of Appeal in a civil Court contending that the impugned orders were illegal and had been made with mala fide intention and further that the paper alleged to have been found in his possession was of no value as it did not assist the petitioner in any manner in solving his question paper of Economics. The suit was contested on behalf of the Board of Intermediate and Secondary Education inter alia on the grounds that the civil Court had no jurisdiction to try the suit and that the order disqualifying the petitioner for using unfair means in the examination was legal and based on facts. The trial Court framed the following issues for the disposal of the petitioner's suit :-
(1) Whether this suit is not maintainable in view of sections 27 and 29 of Ordinance XVIII of 1961 ? 0.
P. D.
(2) Whether the orders dated 28th January, 1979 and 3rd March, 1979 passed by the defendant are illegal, mala fide and of no legal effect as against the plaintiff ? 0. P. P.
(3) Relief.
2. The trial Court' found' Issue No, 1 against the Board of Inter mediate and Secondary Education and decided Issue No, 2 in favour of the petitioner and decreed his suit, An appeal was preferred against the judgment and decree of the trial Court by the Board of Intermediate and Secondary Education in the Court of District Judge, Lahore. The learned Additional District Judge, who heard the appeal maintained the finding of the trial Court under issue No,
1. He, however, found that the petitioner had failed to prove that the impugned orders passed against him by the Board of Intermediate and Secondary Education were illegal or were the result of mala fide intention. He accordingly accepted the appeal and dismissed the petitioner's suit vide his order dated 2nd September, 1979. The petitioner has challenged the aforementioned order in this Court under section 115, C. P. C.
3. Learned counsel for the petitioner has argued that the finding of the learned Additional District Judge on issue No, 2 is not based on evidence because the report of the Inspector of the Inspection Committee that the chit was discovered from under the answer book of the petitioner had not been established. Not only the petitioner had denied the recovery of the chit from his possession but the Deputy Superintendent of the Examination and the Invigilator also had not supported the Inspector's above version. The Discipline Committee did not conduct any enquiry into the matter.
The said Committee without recording the evidence of any of the officials who had any knowledge of the facts of the case passed an arbitrary order against the petitioner. According to the learned counsel for the petitioner, no opportunity was given to the petitioner to defend the charge brought out against him. In the case of the University of Dacca through its Vice-Chancellor and the Registrar University of Dacca v. Zakir Ahmad (1) relied upon by the learned Additional District Judge, the Supreme Court had also laid down that the authority obtaining information should give fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him, which observation, however, was not taken notice of by the learned Additional District Judge while deciding the appeal.
4. It was also urged by the learned Counsel for the petitioner that both the Discipline Committee and the Jury of Appeal had failed to appreciate the true import of the provisions of rule 6.6 (ii) of the Board of Intermediate and Secondary Education Rules relating to Disqualification for Use of Unfair Means in Examinations of the Board inasmuch as no finding was given by them as to whether the paper/chit alleged to have been found in possession of the petitioner contained any material which might have been of some assistance to him in solving the question paper. The chit, a photo stat of which is marked Exh. D. 2 contained only some portion of a printed matter which could hardly be of any assistance to the petitioner in solving his question paper.
5. The learned counsel appearing on behalf the respondent Board of Intermediate and Secondary Education, Lahore, has contended that the present revision petition is not competent as it is not covered by the provisions of section 115, C. P. C. Inasmuch as the finding of the learned Additional District Judge under issue No, 2 is based on appreciation of evidence on the record and it cannot be said that the learned Additional District Judge had exercised a jurisdiction not vested in him by law or that he had acted illegally or with material irregularity in the exercise of jurisdiction. The learned counsel for the respondent has also not accepted the interpretation of Rule 6.6 ii) of the Board of Intermediate and Secondary Education Rules Relating to Disqualification for Use of Unfair Means in Examinations of the Board as given by the learned counsel for the petitioner as according to him it is not necessary to show that the objectionable material found from the possession of a candidate should have been actually used by him in solving his paper. If the objectionable material pertained to the subject in which the candidate was taking the examination it was sufficient for the purpose of the aforementioned rules.
6. I have carefully considered the arguments of the parties' counsel. There is no doubt that the learned Additional District Judge has reversed. A the finding of the trial Court on a point of fact but the reversal of table (1) P L p 1965 SC 9Q finding of the trial Court by itself cannot attract the provisions of section 115, C. P. C. The learned Additional District Judge accepted the testimony of Muhammad Tufail Butt, Inspector D. W. 1 as against the deposition of Muhammad Iqbal P. W. 1 and Farkh Riaz P. W. 2 and for that he has given reasons in his judgment, One may not fully agree with the said reasons but the conclusion arrived by the learned Additional District Judge cannot be interfered with by this Court while exercising revisional jurisdiction under section 115, C. P. C. It is only where the order of the subordinate Court is perverse that the revisional jurisdiction of this Court can be invoked. In the instant case the finding of the learned Additional Sessions Judge is based on appreciation of the parties evidence on the file and as noticed above, the conclusion arrived at by him is well supported by reasons. It is, therefore not legally possible for the petitioner to assail the finding of the learned Additional District Judge under Issue No, 2 in the present revision petition.
7. The petitioner's contention that he was not afforded proper opportunity to defend himself and to meet the charge brought out against him by the Discipline Committee does not seem to be of much substance because the petitioner had not taken up that plea in his pleadings nor he had led any evidence in support thereof. The petitioner was served with a charge sheet by the Discipline Committee and he had filed his reply to the said charge-sheet which was duly considered by the Committee. The petitioner had requested the Committee to call the Superintendent, Deputy Superintendent or the Invigilator but his request was not acceded to by the Committee for good reasons. The Committee had found that the supervisory staff that is the Superintendent, Deputy Superintendent and the Invigilator had tried deliberately to shield the petitioner as was evident from the manner in which the printed form used for initiating disciplinary action against the candidate using unfair means, a photo stat of which is exhibited Exh. D 1, was filled in by the Superintendent. The Discipline Committee had attached more weight to the report of Muhammad Tufail Butt, D. W. 1 keeping in view the afore-mentioned conduct of the supervisory staff and the inconsistent stand taken up by the petitioner at the time of recovery of the objectionable chit and at the time of submission of written explanation to the Discipline Committee in reply to the charge sheet. Under the circumstances of the case, the petitioner is not entitled C to invoke the principle embodied in the Maxim audi alteram partem tha he was not afforded proper opportunity to meet the charge brought out against him.
8. The objectionable chit admittedly referred to Malthus's theory of population which certainly is a matter germane to the subject of economics in which the petitioner had appeared in the examination. Whether the petitioner actually made use of the contents of the chit in question was not material because it was not necessary to show that the question paper contained any specific question which could be solved by making use of the chit. Rule 6.6 (ii) of the Board of Intermediate and Secondary Education Rules relating to Disqualification for Use of Unfair Means in Examinations of the Board does not envisage that the objectionable material found in possession of a candidate should have been used by him in the examination or that it might have been of some use to him in actually solving some question in the question paper. Considering the pigments of Exh, D. 2, it could be reasonably inferred that the chit did contain matter which attracted the application of the provisions of rules 6.6 (ii) to the facts of the case.
9. Having regard to the above facts and consideration, I find no ground to interfere with the judgment and decree dated 2nd September, 1979 passed by the learned Additional District Judge, Lahore. The revision petition is accordingly dismissed. The parties are, however, left their own costs,