1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 22-3-1981 of the Lahore High Court, whereby a Constitutional Petition, against disciplinary action taken by the respondents (University Authorities) against the petitioners, was dismissed.
2. On 9-12-1980, a clash took place between the petitioners (students) and another group of students.
3. It is stated that both parties suffered injuries. A case under sections 307 and 148, P. P. C. For rioting and attempt to commit murder, was registered against the petitioners. They were arrested by the Police but were later on allowed bail by a learned Magistrate. The Vice-Chancellor of the University (respondent No. 1) was informed by the Police about the case and the arrest on 11-12-1980. The Discipline Committee of the University (respondent No: 2) suspended the petitioners and the other students involved in the matter from the rolls, expelled -them from the hostels and directed them to appear before the Committee for explaining their conduct on 2d-12-1980 at 10-30 a.m. This order/notice was put up on all the notice-boards. In the meanwhile the University and hostels were closed, it is stated, on account of another incident of rioting in which a student had lost his life. The petitioners did not appear before the Discipline Committee in response to the notice ; though they having become aware of it had contacted its Secretary-a Professor/Director of Students Affairs.
4. The Committee by its order dated 24-1-1981 found the petitioners guilty of gross act of indiscipline on account of involvement in the aforementioned criminal case and expelled them from the University: The other group of students who had submitted their explanations were also found guilty, but of simple indiscipline. They were rusticated from the University for one year. On appeal the punishment of the petitioners was reduced to rustication for one year and fine of Rs. 500 to each of them. The punishment -to the other group was also reduced to rustication for a lesser period.
5. The petitioners' challenge to .The disciplinary action/punishment, in the High Court through a Constitutional Petition, failed; because both the grounds dressed in this behalf ; namely, lack of proper opportunity of hearing and lack of proof regarding charge of attempted murder, were repelled by a learned Single Judge. Their Intra-Court Appeal failed on account of the same being incompetent. They have, therefore, sought leave to appeal. .
6. The points now raised are ; that no formal notice for appearance was served on the petitioners ; that no charge was framed against them ; that no evidence was recorded in their presence-thus there was no fair opportunity of showing cause; and that the act of the petitioners did not fall within the mischief of clause 5 of the Revised General Discipline Rules of the University.
7. The law on the opportunity of hearing as declared by this Court in University of Dacca 2and another v. Zakir Ahmed (PLD 1965 SC 90) regarding educational institutions and other similar institutions and departments mentioned therein, where maintenance of discipline is essential for the orderly conduct thereof, is as follows :-
(i) In, principle there is no distinction between the cases involving maintenance of discipline, whether, (a) it is in examination hall ; (b) it is in the class-room ; or (c) it is out of the class-room (and in this case out of the University also ; Except that;
(i) Where such misconduct is discovered in the examination hall itself by the Invigilator, or is committed in view of the authority empowered to punish, it would be permissible depending upon the circumstances of each case, to assume that there is no necessity of giving any separate show- cause notice ; because the student concerned knows the wrong that he has committed and is punished immediately by the authority concerned ; and
(ii) Where action is intended to be taken ex post facto after investigation on the basis of evidence subsequently collected from other persons or sources, it would be essential where the proceedings, whether judicial or administrative, are likely to affect the person, property or other rights of the parties concerned, that the principles of natural justice regarding opportunity of showing cause/submitting explanation, are observed.
(2) All or any of these requirements can by express words be excluded by the enactment giving the power to proceed in the matter.
(3) Requirements of natural justice must depend upon the factors like the relevant law/rules, nature of enquiry, the subject-matter, the circumstances of the case.
(4) The minimum requirement of fairness would be-
(i) the person concerned must be made aware of the nature of the allegations against him ;
(ii) he should be given reasonable opportunity to make any relevant statement putting forward his own case ; and
(iii) he should be able through such a statement to correct or controvert any relevant statement brought forward to his prejudice.
(iv) the statement can be oral or written and it can also be made during discussion or confrontation and/or questioning by the appropriate authority.
(5) On the assumption that the authority concerned is acting in good faith ; (which would ordinarily, it may be pointed out in matters relating to educational institutions, on account of their peculiar jurisdic--petition akin to the parental authority, be presumed in the affirmative) it would not be bound----- (i)to treat the matter as-if it was a regular trial in the normal sense of the term ; or to administer oath ; or
(ii) to examine witnesses in a formal manner (which otherwise, can also be in form ofconfrontation, in proper cases) ; or (iii)to examine them in presence of the accused person ; or
(v) to give him facility for cross-examining the witnesses ; or
(vi) even to serve a formal charge-sheet upon him.
(6) It would not be necessary for the authority concerned to obtain information regarding the subject-matter in any formal manner-the mode in this behalf would depend upon its own discretion but subject to a very important condition as already stated that the person sought to be affected should have a fair opportunity to correct or contradict any relevant statement prejudicial to him by the above minimum safe--guards.
(7) The Court including the High Court in its writ jurisdiction where questions relatable to the above matters are raised shall not be unmindful
(1) 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
(ii) of the fact that persons in charge particularly of educational institu--tions 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: Provided that even in such cases the authority concerned would not be free to exclude the requirements pointed out above "which have been designed to assure the minimum essential principles of justice and fairness": Provided further that if the educational institution acts in a manner substantially contrary to these minimum requirements-where no opportunity of any kind whatsoever to submit any explanation or put forward his reasons, is afforded to the student, the proper course even in discretionary jurisdiction, would be to set aside the impugned order/action with a direction to the authority concerned to act in accordance with the above-indicated manner ; in case the authority concerned is still of the view that the action should be taken.
(8) The observance of the foregoing rules by the authorities concerned is not at all on the assumption that they are designed to guard against an ulterior motive or bad faith on the part of the authorities responsible for the maintenance of discipline in the Universities and other educational institutions-indeed these minimum requirements of fairness would exclude the possibilities of honest mistake on their behalf.
(9) The observance of these rules of fairplay and justice on the part of the parties concerned would not adversely affect the prestige and dignity of the institutions viz-a-viz the wards nor these minimum standards be treated as a hurdle for taking any action against the students' misconduct.
8. All these institutions, it is well established, are armed with abundant powers of disciplinary nature for taking action against the recalcitrant students
(10) While _ applying, observing and interpreting these rules, it shall not be presumed by the Courts, the institutions and the students, that the institutional powers to take action have in any way been reduced-- it has only been held that -the Courts are entitled to insist upon the observance of these minimum requirements of fairness ; because- `it is equally important to remember that unfair action may cause greater harm to the prestige of the heads of educational institutions who arc expected to be in loco parentis to the students and may seriously undermine the authority which they claim to possess over the students placed in their charge."
9. Muhammad Aman Nomani v. Principal, Government College, Lahore etc. (PLD 1973 Note 146 at p.
10. 221). When dealing with the question of propriety of a punishment, it was observed as follows :--.
11. "The best Judges are the authorities concerned who by virtue of their peculiar position, are considered as well-wishers of the students in the same manner as parents are, and thus are expected to take com--passionate, liberal and sympathetic attitude towards their wards. On the other band unless they maintain discipline and deal with disciplinary questions firmly and consistently, the atmosphere is not only likely to be vitiated in the institution, but also, sometimes such atmosphere per--colates out of the institution and while drifting away proves detrimental to the health of the society. In this case it appears from his parawise comments that the Principal understood the above position and further that he does not appear to have taken any action which is contrary to these considerations.
12. Be that as it may, in its writ jurisdiction, this Court would not annul an action taken by an educational institution in the field of discipline only on the ground of impropriety. The institutional traditions, rules, practices and the facts of each case together with such considerations as are indicated in the preceding paragraphs, should normally be allowed to determine the questions of propriety of an action."
13. The points raised on behalf of the petitioners regarding the so-called lack of opportunity of bearing stand concluded by the findings of fact in this case. It is clear that the petitioners having become aware of the accusation against them, after the initial notices had been put up on the notice board of the University, had also established contact with the Secretary of the Discipline Committee. He happened to be the Professor/Director of Students Affair. Thereafter they intentionally, for reasons best known to them (may be on some ill-advice failed to appear before the Discipline Committee, and thus deprived themselves of a fair opportunity afforded to them to correct and/or contradict by appearing before the Committee, any statement or information obtained by the Committee, which was to their prejudice. They were rightly not permitted by the High Court to agitate this aspect of the case in its writ jurisdiction. The law as declared in Zakir Ahmed's case did not require any formal notice to be served on the petitioners. It was enough if they became aware of the proceedings which were to be conducted by the Discipline Committee. And it was not necessary to frame or serve them with any formal charge-sheet nor as laid down in the said case, was it necessary to formally examine any witnesses and if there was any need for examining the witnesses, it was not essential to examine them in the presence of the petitioners nor any so-called right to cross-examine the witnesses in these proceedings was available to them. The first ground for the challenge to the decision of the High Court thus is without any substance.
14. Before dealing with the second contention, it is essential to clarify a somewhat wrong impression with regard to the law laid down in Zakir Ahmad's case. It was cited before the Lahore High Court in Malik Abdul Majid v.Disciplinary Committee of the University of the Punjab, Lahore and another (PLD 1970 Lab. 416 A Division Bench of the said High Court interpreted it as if it is the right of a student that the Disciplinary Committee should examine the witnesses in his presence and that he has a right to cross-examine them. The case of Malik Abdul Majid was taken to the Supreme Court in appeal filed by the University. On the facts, certain developments having taken place, the Supreme Court dismissed the appeal on the ground that it had become infructuous. The reason being that consistent with its practice,, the Court refused to enter into any academic discussion in case the appeal had become infructuous. However, while clarifying that the "dismissal 'of this appeal does not mean that this Court is approving of the principle laid down by the High Court in the impugned judgment", it was observed that the same "ran counter to the principles already laid down by this Court in the case of University of Dacca and another v. Zakir Ahmed (PLD 1965 SC 90Therefore, it is clear, in our view, the Lahore High Court's judgment in the case of Malik Abdul Majid stood over-- ruled by the Supreme Court in Civil Appeal No. 256 of 1969, decided on 7-5-1970, which, had arisen from the same judgment. As the case of Abdul Majid stood overruled, therefore, the other cases wherein reliance was placed on the said case or "principle" to that extent, also stood overruled. We might make mention of three cases in this behalf which have come to our notice. They are Ghulam Haider v. Discipline Committee, Board of Intermediate and Secondary Education, Lahore. And another (PLD 1971 Lah. 952), Azhar A.I v. ?He Chairman, Board of Intermediate and Secondary Education, Multan and another (PLD 1971 Lah. 972 )and Shahid Javid Malik v. Board of Intermediate and Secondary Education and another (PLD 1980 Lah. 176 There is some misunderstanding also, it seems, with regard to the observations made in the majority order in Controller of Examinations, Board of Intermediate and Secondary Education, Lahore v. Muhammad Yaqub (PLD 1977 SC 69It needs to be explained that the report contains an order of refusal to grant leave to appeal. The facts and circumstances of the case were highlighted in the majority view while the minority view took note of the rules laid down in the case of Zakir Ahmed. The ratio in either case did not have the effect of changing or diluting the effect of the law laid down in the case of Zakir Ahmed. It was reiterated by this Court in Shaukat A.I v. The Controller of Examinations, University of the Punjab, Lahore and another (1981 SCMR 364While doing so, due notice was taken of the views expressed in the case of Muhammad Yaqub and Malik Abdul Majid as also two other cases, namely, Abdus Saboor Khan v. Karachi University and another (PLD 1966 SC 536) and Syed Arif A.I v. Vice-Chancellor, University of Karachi and another (1969 SCMR 239 Keeping in view the case-law position, there has been no departure in reality from the law relating to the minimum requirements of natural justice in cases like the present one laid down by this Court in Zakir Ahmed's case. We may observe here that the law laid down in that case is of minimum requirements which would satisfy a Court when considering the question of the application of rules of natural justice. But as held in the case. Of Sh. Muhammad A wan Nomani, an educational institution is neither required to act as a criminal Court nor is bound to follow the legal or proceduralformalities of such a Court. While the student is being dealt with for misconduct or indiscipline, he is not to be treated as an ordinary criminal nor the authorities are to get into the robes of the Police prosecuting agency. During the investigation and inquiries, preliminary or final, the attitude of all concerned is, not necessarily of adversaries and thus should not become antagonistic. In such like cases, during the inquiry involving the student and other concerned persons, the method of questioning, discussions and/o confrontation in a healthy atmosphere, would neither be illegal nor improper procedure. They are in these cases beneficial aids in reaching correct conclusions. The petitioners avoided appearance before the Discipline Committee. Had they availed of the opportunity of showing cause, .Before the Discipline Committee, it would not be an unfair assumption, the results might have been different. However, it is not necessary to make any further comment in this behalf because the authorities concerned, acting on the salutary principles underlying their parental jurisdiction, have even now showed their willingness to reconsider their case.
15. The contention that clause 5 of the Rules relevant in this case was not satisfied, is also without force. It reads as follows :- "(1) A student who--a) . . . . . . . . . . To . . . . . . . . . . . (g) . . . . . . . . . .
(h) commits any criminal, immoral or dishonourable act (whether committed within the University Campus or otherwise) which is prejudicial to the interests of the University ; shall be guilty of an act of indiscipline and shall be liable for each such act to one or more of the penalties mentioned in rule 6.
(2) The penalty or penalties imposed shall be appropriate and propor--tionate to the nature and gravity of the Act."
16. As already observed, the Discipline Committee is not to act as a criminal Court holding a trial for purpose of finding whether the person concerned is guilty of a criminal offence. The scope of sub; clause (h) reproduced above, is wide enough to include any act on the part of a student whether committed within the University Campus or otherwise, which in the judgment of the authorities concerned is dishonourable or immoral or criminal in nature. The intention underlying the rule is not to require, the fulfilment of the conditions to satisfy a criminal Court for convicting a person of criminal offence as defined in. The Pakistan Penal Code or any other special or local law. Therefore, the insistence from the petitioners' side on the satisfaction of the requirements of section 307 and/or 148, P. P. C. Is misconceived. The physical fight between two students' groups, which in this case incidentally also resulted in bodily injuries, is in the nature of a "criminal act" as used in the ralevant rules besides being dishonourable. The interpretation of the rule by the Discipline Committee in this behalf is unexceptionable. This contention accordingly is repelled.