' By means of this Constitutional Petition the orders of the Discipline Committee dated 18th July 1979 and the Committee of Appeal dated 1st September 1979 of the Respondent Board of Intermediate and Secondary Education, Lahore, debarring the petitioner from passing the Secondary School Certificate Examination conducted in September, 1978, and from appearing in the three subsequent examinations to be held thereafter, are impugned.
2. The petitioner sat in the Secondary School Certificate Examination of the Respondent Board held in September, 1978, under Roll No, 14473. He was sent a Failure Intimation (Annexure A with the Petition) on 7th December 1978 according to which he was shown to have been absent in the Islamiyat Compulsory paper, and to have failed in the Islamiyat elective and Civics papers.
According to the Failure Intimation, he was declared eligible to re-appear in the three subjects till the Secondary School (Autumn) Examination, 1979.
3. Learned counsel for the Board conceded that the petitioner was wrongly shown to have been absent in the Islamiyat compulsory paper. It is stated that the intimation in relation to his absence was on account of a clerical error, Learned counsel for the petitioner by reference to the record states that it is alleged that on 24th September 1978 when the Islamiyat compulsory paper was being answered, the petitioner was detected by the Centre Inspector to be in possession of two pages of objectionable material which were recovered from him, and when asked he refused to record his statement. It is further alleged that the answers written by the petitioner were copied from the objectionable material found with the petitioner. Proceedings in Form S. F. 8 were accordingly drawn up and forwarded to the Board, and on 1st January the petitioner was served with a charge-sheet (Annexure B under rules 6.6 (ii) and 6.8 (i) for having had in his possession objectionable printed papers and copying therefrom and rule 6.7 (iii), for having disobeyed the Superintendent by refusing to record his statement. The petitioner was directed to submit reply within 15 days.
4. In the meantime, pursuant to the Failure Intimation sent to the petitioner he appeared in the three subjects of Islamiyat compulsory, Islamiyat elective and Civics under Roll No, 16603 in the Autumn Supplementary Examination. The result of the petitioner was, however, not declared, on account of the pendency of the aforenoted unfair means case against him,
5. On 3rd April 1979, the petitioner submitted his reply to the charge-sheet (Annexure C with the petition), in which he denied that he was found in possession of the objectionable material in the examination hail and also denied that he refused to give any statement to the Centre Superintendent or that he had disobeyed him. He pointed out that according to Failure Intimation sent to him by the Board, he was absent on the day the Islamiyat compulsory examination was held which showed that the records of the Board were properly maintained and that the charge- sheet appeared to have been the consequence of a misunderstanding or error. The petitioner prayed to be heard in person. The petitioner was accordingly asked to appear in person before the Discipline Committee which he did on 18th July 1979,
6. According to the respondent's counsel the record show that before the Discipline Committee, the petitioner contented himself by merely reiterating in writing that his reply afore noted was correct and sufficient.
7. The Committee noted that as the candidate had marked his attendance in the relevant attendance sheet maintained at the Examination Hall on 24th September 1978, his absence shown in the result sheet was due to clerical mistake, The decision of the Discipline Committee is as under :- "Candidate present and heard. Copying is established. Candidate is debarred from passing the examination and from appearing in three subsequent examinations, under rules 6.6 (ii) and 6.8 (i).
8. The petitioner preferred an appeal against the decision of the Discipline Committee on 11th August 1979 and appeared before it on 1st September 1979. He filed a written statement before the Committee of Appeal, giving his own version and totally denying the allegations against him.
According to the written statement of the petitioner, when he was answering the paper of Islamiyat compulsory, some persons asked the examinee sitting next to him whether a chit of paper was his, which he denied. Thereafter they came to the petitioner and asked him to stand up and to recite the Quranic Verses written by the petitioner in his examination paper, which he did. These persons then went to the Centre Superintendent and left the Hall taking Roll No, list with them.
' The petitioner was not asked to sign any document or to give any statement, nor was any paper taken into possession from him and after the examination the Centre Superintendent informed him that no unfair case had been detected against the petitioner, Thereafter the petitioner received the Failure Intimation in which he was shown to have been absent on the day on which the afore- referred occurrence is alleged to have taken place, and was informed that he could re-appear in three subjects. As such he applied for a Roll Number which was issued, and thereafter, he appeared in the subsequent examination, in three subjects. He received a charge-sheet from the Board and was directed to appear before it, but when he appeared before the Committee two ladies present there in the office of the Board discussed amongst themselves his case and then left. He further stated that all the allegations leveled against him were false. According to the record, the Committee of appeal. Made the following order :- "Heard the candidate in person. His fresh statement denying the charges is attached. The cam was detected by the Inspector as reported by Spud. The charges are clearly proved. Rightly punished.
Appeal rejected..
9. The petitioner thereafter filed the present petition before this Court on 27th September 1979.
According to the petitioner, the proceedings taken against him by the Discipline Committee were not in accordance with law, he was not shown the evidence against him or allowed to contradict the evidence, that neither Inspector nor the Superintendent of the Centre who reported against him were examined in his presence nor was the material on the basis of which the impugned orders were made shown to him, that he was not even allowed to produce evidence in defence, or cross- examine the persons who had reported against him.
10. The respondent Board in its written statement has raised certain preliminary objections which will be noted hereafter. On merits it is stated that the petitioner was caught red-handed in the Examination Hall on 24th September 1978 in the circumstances already noted above, and was found having in his possession objectionable material identical with the answers written by him in his answer book, and on being asked refused to give a statement to the Centre Superintendent, that the result of the petitioner could not be withheld due to clerical mistake, that the petitioner thereafter re-appeared in the three papers afore referred by concealing the fact that an unfair mean case was pending against him, that the documents comprising the objectionable material were shown to the Petitioner by the Discipline Committee, and after seeing them, the petitioner had contended himself by noting that his reply to the charge sheet was correct and sufficient, that the petitioner was heard and his statement was recorded before the Committee of Appeal tand he was confronted with the material, that it was not necessary to record the statements of the supervisory staff, because the petitioner did not allege any mala fide or bias against them, and that the evidence on the record was sufficient to justify the impugned orders.
11. Arguments have been heard at length. Learned counsel for the petitioner contended that before the Committees the petitioner was never confronted with the material allegedly recovered from his possession in the Examination Hall. And further that whereas the Petitioner had been charged under rules 6.6 (ii), 6.8 (1) and 6.7 (iii). a reference to the order of the Discipline Committee (reproduced earlier), shows that the Committee only found that copying had been established and debarred the petitioner from passing the examination in which he had appeared, and form passing the three subsequent examinations under rules 6.6 (ii) and 6.8 (i). In other words the petitioner was not found guilty of the chary under rule 6.7 (iii), which related to his having disobeyed the Superintendent by refusing to give his statement.
12. Learned counsel has argued on the basis of the record of the proceedings of the Discipline Committee, that there is no finding on the record to the effect that the petitioner was found to be in possession of any objectionable material. It had only held that copying had been established. He contended that there is no evidence on the record to justify such findings. Learned counsel pointed out that one sheet of the printed material allegedly found in the possession of the petitioner had on it a Qur'anic Verse and its translation and that it was not usual to memorise Qur'anic Verses and their translation, and that the mere fact that answer written by the petitioner corresponded with the Qur'anic Verses and its translation as printed on the material can by no stretch of imagination lead to the inference that the petitioner had copied. Learned counsel argued that a comparison of the second she of the material and the answer-sheet shows that the two are exactly identical.
Learned counsel then argued that in any event the Petitioner was not confronted with the material or the answers books nor the statements of the witnesses who allegedly recovered the objectionable material from him. The latter argument is obviously correct because there is no such statement on the record and indeed in the written statement it is contended that it was not necessary to record the statements of the supervisory staff. How this can be so, is beyond my comprehension.
13. It was further argued that no witnesses were examined in the presence of the petitioner and in fact no witness appeared to support the allegations before the Discipline Committee and that the petitioner had no opportunity to controvert the evidence used against him either by cross examining the alleged witnesses or by producing witnesses in rebuttal. In short, the contention of the learned counsel for the petitioner is that the entire procedure followed by the two Committees is utterly contrary to the recognized and well-known principles of natural justice governing such proceedings.
14. An examination of the record does not show that any evidence was recorded in the presence of the petitioner, nor does it show that the petitioner was allowed to controvert the allegations against him by cross examining the witnesses on the basis of whose statements the petitioner was punished or to lead evidence in rebuttal. It cannot be denied that disciplinary action involving moral turpitude can be of severe consequence to the future career of the student proceeded against.
15. At this stage, it will be appropriate to notice the preliminary objections raised by the respondent.
According to the respondent, the Discipline Committee being a domestic forum free from fetters and formalities of judicial trial, that if the proper procedure is followed by a domestic tribunal its orders cannot be challenged in writ proceedings and that it was not necessary for the tribunal to have served a charge-sheet or given an opportunity to examine witnesses or cross-examine witnesses in the presence of the accused student. The superior Courts have on many occasions examined the nature of the jurisdiction exercised by disciplinary forums, and for the purpose of determining the issues raised in this petition, it would be of assistance to notice some of the leading pronouncements on the subject.
16. In University of Dacca v. Zakir Ahmad (I) the respondent had been expelled for a period of two years by the University on account of disturbances which took place at the Convocation. He had been named as a person involved in the said disturbances. Before the Supreme Court it was argued on behalf of the University, that in matters of internal discipline in educational institutions, the rule of audi alteram partem is not applicable, and that in any event where this rule is not applied, the superior Courts should exercise their jurisdiction in favour of the educational institution.
Repelling these contentions it was observed by the Supreme Court :- "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 ' From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case.
' What these principles of natural justice are it is not possible to lay down with any exactness, for they have been variously defined in various cases 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 of the nature of the allegations against him, he should be given a fair 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 authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve a formal charge-sheet upon him. 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 effected to correct or contradict any relevant statement prejudicial to him. In other words, "in order to act justly and to reach just end 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.
(1) PLD 1965 SC 90 ' In saying this we are 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 are we unmindful 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 of justice and fairness, by at least telling the person sought to be punished or condemned what are the allegations against him and by giving him a fair opportunity to correct or contradict any relevant statement to his prejudice. In the present case, it is patently clear that this was not done. The respondent was afforded no opportunity of any kind whatsoever to submit any explanation or put forward his version."
17. In Abdus Saboor v. Karachi University (1), where on the complaint of the Examiner that the appellant had used unfair means in the examination, the result of the appellant was withheld and later he was debarred from appearing in any examination of the University and from admission o any class in the University for a period of two years, the Supreme court observed :- "the principle embodied in the maxim audi alteram partem...Has been applied by this Court in other cases where orders passed by the administrative tribunals or authorities, affecting the rights of citizens, in point of property, or other rights, had been passed, without giving an opportunity for defence to the person concerned. "No one can be condemned unheard", is one of the settled principles of law, and such a principle will be read into the relevant law, unless its application is excluded by express words. A duty is cast on every administrative Tribunal to act fairly and justly and with due regard to the principles of natural justice, unless specifically exempted from such a limitation. Mere omission from the relevant law, of a provision for notice, would not affect this position- ' It was a very serious matter disqualifying him from appearing in any University examination, or joining any University class or college, for a period of two years. The stigma thus attached to his character, might dog his footsteps all his life. Before such a drastic step was taken, it was incumbent upon the University authorities to give an opportunity of showing cause against the proposed action, to the appellant and to afford him a fair opportunity of defence."
18. In Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore (2), in which on the allegation that marks actually obtained by the appellant in the' Intermediate Examination had been (1) PLD 1966 SC 536 (2) PLD 1971 SC 838 altered from 533 to 643 marks the appellant was after enquiry disqualified for three years, the Supreme Court observed that :- "It is true that domestic Tribunals like a 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 an suspicion but upon legal grounds established by legal evidence."
19. In case of Federation of Pakistan v. Sardar Ali (1), where the Collector of Customs ordered confiscation of goods belonging to the respondent, the Supreme Court observed that :- "Certain witnesses were apparently examined by the Intelligence Officer behind the back of the respondents who had no chance of cross-examining them to elicit facts in their own favour. The statements made by those witnesses were not even put to the respondents at any stage and we have it on the authority of the learned counsel for the respondents that for the first time they became aware that any such statements had been recorded by a departmental officer, during the pendency of the writ proceedings in the High Court. We feel not a little disturbed that prejudicial action could be taken by the Customs Officers in a matter touching valuable rights to property as well as the personal liberty of the subject, on the basis of a private enquiry in which the person concerned was not allowed to participate- ' These were quasi-judicial proceedings of which the substance of a fair hearing and opportunity for defence at the appropriate stage are essential incidents."
20. In Muhammad Bashir v, University of Punjab (2), the petitioner was found to be in possession of certain material in the examination hall and was disqualified for three years. It was observed :- "Another important principle of natural justice is that a delinquent must be given an opportunity to produce evidence in his defence and refute the evidence produced against him and in the words of the Supreme Court in The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmad, he should be given an opportunity to correct or controvert any relevant statement brought forward to his prejudice."
21. In Abdul Majid v. Disciplinary Committee of the University of the Punjab (3), where the petitioner who allegedly confessed to copying in the examination hall and latter denied the allegation, was disqualified (1) PLD 1959 SC (Pak.) 25 (2) PLD 1967 Lah. 1204 (3) PLD 1970 Lah. 416 for three years, it was contended on behalf of the University that it would be extremely inconvenient for the University Authorities to examine witnesses in the presence of candidates or to permit candidates the facility to cross-examining them. Repelling this contention it was observed that :- "It pained us to hear an argument from the bar which is to the effect that valuable rights of citizens can be taken away without even hearing them and permitting them to test the credibility of witnesses simply because it would cause inconvenience to certain authorities. We have always been told that convenience and justice have never been on speaking terms with each other. We may say it with all the emphasis at our command that it is not possible for us to permit justice to be sacrificed at the altar of convenience. If during the dispensation of justice the giving of a fair opportunity to a person accused causes inconvenience to the accuser, then the former cannot be sacrificed at the altar of the latter. If it is a question of convenience alone, the inconvenience caused to the accused in the absence of a fair opportunity, is much greater than the so-called inconvenience caused to the accusers in producing the witnesses for cross-examination."
22. In this very context reference can also be made to certain foreign judgment on this subject where the very principles identified above have been examined and approved. Reference : University of Ceylon v. Fernando (1), Board of Secondary Education v. Rice (2), Local Board v. Arlidge (3), Errington v. Minister of Health (4), General Council of Medical Education v. Spakman (5).
23. Respondents counsel relied on Akhtar Ali v. University of Punjab, (6) ; but in that case the Court found that the Discipline Committee had afforded more than adequate opportunity to the student and also it could not be said that there was no material before the Committee to hold the appellant guilty. This judgment, therefore, is not attracted to the facts of this case. Counsel also placed reliance on a judgment of the Sind High Court in the case of Quadri Brothers v. Sind Employees etc. (7) in which it was held that when adequate opportunity had been given at the appellate stage, the requirements of natural justice are satisfied. This citation again is not at all attracted to the facts of this case. Learned counsel also relied on M. Mahadevan v. K. Anandrajan
(8) which was a case involving disciplinary action against a minor by the Headmaster of his School, where it has been observed that natural justice requires a person charged with making decisions to act fairly, but that it would be inappropriate to model the procedure on that of a criminal trial. This is so, but the minimum requirements which the procedure should satisfy have been clearly identified in the judgments of the Supreme Court of Pakistan, noted above.
It will thus be seen that in disciplinary proceedings involving students, the principles of natural justice have to be observed, in the absence of any express words in the enactment to the contrary.
(1) (1969) 1 A E R 631 (2) 1911 A C 179
(3) 1915 A C 120 (4) (1935) I K B 249
(5) (1943) 2 A E R 337 (6) 1979 SCMR 549
(7) PLD 1977 Kar. 112 (8) 1974 Law Notes 483 (P C)
' The person effected must at least be made aware of the nature of allegations against him, he should be given fair opportunity to make any relevant statement putting forward his own case, and given a fair opportunity to correct or contradict any statement to his prejudice, he must be afforded a fair opportunity of defence, and unless there is legal proof the allegations cannot be taken to be proved, the decision must rest on legal evidence, the accused should have a chance to cross-examine the witnesses deposing against him and the delinquent must be given an opportunity to produce evidence in his defence. In the above view of the law, the preliminary objections raised by the respondent have no force and are rejected. It now remains to examine the validity of the proceedings and the impugned orders in the light of the law declared.
25. An examination of the record of the proceedings before the Discipline Committee and the Committee of Appeal shows that the witnesses were not examined in the presence of the petitioner, and further that apart from the initial report of the Centre Superintendent, even the statements of the invigilation staff were not recorded by the Discipline Committee. It merely contented itself by relying on the report of the Superintendent of the Examination Centre and penalized the petitioner on that basis, notwithstanding the denial by the petitioner of the allegations contained in the charge-sheet. It these circumstances, it is apparent beyond doubt that the minimum procedural and substantive requirement of the principles of natural justice repeatedly identified and declared by the superior Courts have not been met, and as such the impugned orders of the Discipline Committee and the Committee of Appeal cannot be sustained.
26. It is accordingly declared that the order of the Discipline Committee dated 18th July, 1979 debarring the petitioner from passing the examination in which he had appeared and also from appearing in three subsequent examinations, and the order of the Appeal Committee dated 1st September, 1979' upholding the order of the Discipline Committee are without lawful authority and of no legal effect.
27. However, before taking any further action in the matter, the respondent should take into consideration the fact that the petitioner appeared in the subsequent examination in the three subjects without let or hindrance and except for the Islamiyat compulsory paper, there is no compulsory paper. This is a matter for the Board to consider and allegation of unfair means in the other two papers and for that he has suffered for more than two years. Indeed learned counsel for the Board stated that the Board would be willing to consider the possibility, of declaring the result in the papers of Islamiyat elective and Civics, and determine in keeping with all the attendant circumstances. With these allowing the petitioner to sit in the next examination in the Islamiyat observations the petition is accepted. In the circumstances of the case there will be no order as to costs.