1. B. G. N. KAZI, J.-The petitioner who was a Political Science student in third year class of B.A.
2. (Honours) of the University of Karachi in the year 1977, by this petition seeks to challenge the order of the Vice-Chancellor dated 3-1-1978 cancelling his admission and expelling him from the University for good ; and the order of the Discipline Committee dated 14-5-1980 passed on his appeal.
3. The facts leading to the filing of the petition are as under; On 12th October, the petitioner in company of his friend Qamar Abbas also a student of the University, visited the Registration Unit of the University as they both wanted to get clearance certificates. The students usually form a queue at the window for being attended to by the clerk concerned. How--ever, it is the case of the petitioner that since other persons were getting their work done by going inside the office room he and his companion tried to enter through the door.
4. One person who was standing near the door stopped them from entering. According to the petitioner, that person was not known to him previously but later he came to know that he was Mr. Aqeel Zuberi, Curator, Zoology Department of the University. It would appear that in the ensuing tussle Mr. Aqeel Zuberi received serious injuries on his face as a result of which he started bleeding.
5. There are conflicting versions of what actually happened, and whereas, according to the petitioner, Mr. Zuberi gave him a push trying to throw him out and as a result both he and the petitioner lost their balance and Mr. Zuberi struck against the door and got injured ; it is the case of the University Authorities that the petitioner, who was carrying knuckle duster, hit Mr. Zuberi on the face causing him grievous injuries. Further whereas it is the case of the petitioner that he was given fist blows and kicks and taken before the Vice-Chancellor, it is the version of the University Authorities that the petitioner was overpowered with the help of Chowkidars and others and taken along with Mr. Zuberi before the Vice-Chancellor. It is however admitted fact that a report was lodged with the Police and the petitioner and his companion were sent up for trial before a Magistrate for offence punishable under section 325 read with section 34, P. P. C. Ultimately however there was compromise by Mr. Aqeel 'Zuberi with the petitioner, and since the offence was compoundable, the petitioner was, in view of the compromise acquitted.
6. On 12-10-1977 the date on which the incident took place the petitioner was given notice to show cause why disciplinary action should not be taken against him and he had submitted explanation which has .Already been referred to as his version of the incident. He was asked to appear before the Discipline Committee of the University on 5-11-1977. After finishing the proceedings the Discipline Committee which was presided over by the Vice-- Chancellor unanimously recommended that the admission of the petitioner be cancelled and he should be expelled from the University for good. The Registrar of the University of Karachi informed him about the order on 3rd January, 1978 and the circular letter that was issued reads as under :- "UNIVERSITY OF KARACHI January 3, 1978 No. A. F. 58 (9) 434 The Chairmen of all the Departments of Studies, University of Karachi, Karachi.
7. Sub :-Cancellation of admission of Mr. Kbalid Mahboob, student of B.A. (Hons.) III Year Class, Political Science.
8. Dear Sir, "I have to communicate to you the following decision of the Vice--Chancellor for information and necessary action :- "On the unanimous recommendation of the University Discipline Com--mittee, the Vice- Chancellor, by exercising the powers vested in him under University Ordinance No. 24 clauses 5 (a)
(iv) and 7 (a)(v), has cancelled the admission of Mr. Khalid Mahboob to B.A. (Hons. III year class, Department of Political Science and expelled him from the University for good.
9. "The above-named, Mr. Khalid Mahboob, shall not be admitted to any department or course of study in the University without clearance from the Students' Adviser and the written permission of the Vic-.-Chancellor.
10. Yours faithfully, (Sd.)
11. Copy to :Registrar
(1) Controller of-Examinations.
(2) Mr. Khalid 'Mahboob, 36, Qasimabad, Karachi."
12. After receipt of the impugned order dated 3rd January, 1978 the peti--tioner moved an appeal or representation after about two years on 27-12-1979 stating therein that Mr. Aqeel Zuheri had forgiven him and he should be allowed to complete his education. It is the case of the petitioner that the aforesaid appeal was recommended for acceptance by Mr. Mehboob Illahi, President, Teachers' Association of the University. However, the appeal was rejected by the Discipline Committee. The petitioner then filed petition in this Court on 0lth day of June, 1980 seeking declaration that the aforesaid orders dated 3-1-1978 and 4-5-1980 were passed without lawful authority and were of no legal effect and he also prayed for a direction to be issued to the respondent to admit him and allow him to pursue his education. In the petition, as initially filed, the only ground of substance was that the penalty of expulsion for good from the University was extremely harsh. The petition was admitted and came up for regular hearing on 4-3-1981 and as the order of this Court of that day would show arguments of the learned counsel for the petitioner were fully heard and during the course of the arguments of the learned counsel for respondents, the question arose whether the ground of violation of the rules of natural justice could be pressed on behalf of the petitioner, since no such ground had been taken in the main petition ; but had been raised in the rejoinder affidavit filed by the petitioner. It was argued by the leaned counsel for the petitioner that the facts in support of the ground were revealed to him only after the counter affidavit was filed by the respondents. At his request the hearing was adjourned to enable him to submit an application for amendment of the petition. However, since the learned counsel for the respondents stated that he may oppose the application for amendment of the petition, it was finally made and heard on 12-5-1981 when the proposed amendment was allowed. In the amended petition the further ground was taken that statements of witnesses were not recorded in presence of the petitioner on 5-11-1977 when he appeared before the Discipline Committee and only Mr. Aqeel Zuberi and he himself were examined. It was further contended that the petitioner was not provided opportunity to cross-examine the witnesses whose statements were brought on record at his back.
13. Since the impugned orders of the Vice-Chancellor and the Discipline Committee have been challenged the legal position with regard to the power to pass such orders has to be examined in the first instance.
14. Section 5 of the University of Karachi Ordinance, 1962 (Ordinance V of 1962) (hereinafter referred to as the Ordinance) provides for powers of the University. Clause (xv) mentions that the University shall have the power to frame rules for disciplinary action in relation to the students of the University, and its affiliated Colleges and for imposing penalties, including the penalty of rustication and of expulsion. Section 23 of the Ordinance provides for making of University Ordinances inter alia for powers and duties of advisers and teacher of the University. In exercise of the aforesaid power University Ordinance No. 24 which prescribes duties of the Vice-Chancellor, Proctors, Deans and others regarding maintenance of discipline was made. Clause (1) of the aforesaid Ordinance reads as under; "(1) Discipline among the students of the University and those of colleges shall be enforced and maintained by the Vice-Chancellor who, shall be the final authority to determine whether the charge of an act of in---discipline has been proved or not."
15. Clause (5) describes the acts which, among others, shall constitute acts of indiscipline for which action may be taken against the student or students concerned and in the enumeration in sub- clause (a) item (iv) mentions, "dis--orderly behaviour such as shouting, abusing, quarrelling, fighting and insolence," and sub-clause (b) mentions "defiance of authority." Clause (6) of the aforesaid Ordinance provides the punishment or penalty for offences mentioned under the preceding clause . And further elaborates that the same shall be according to the gravity of the case. The punishments or penalties are as under :- .
16. "(i) a record in the Black Book maintained by the Proctor,
(ii) fine which may amount to Rs. 50,
(iii) expulsion from the class, hall or hostel for a specified period,
(iv) detention from examination,
(v) cancellation of examination results or withdrawal of a Certificate granted, and
(vi) expulsion or rustication from the University for a specified period or for good.
17. Clause (7) names the authorities empowered to impose punishment or penalty and the Vice- Chancellor has been given authority to impose the following punishment or penalty-- "(i) fine a student up to Rs. 50 for each single offence and deprive him of privileges and positions open to students ;
(ii) detain a student from a University Examination ;
(iii) cancel the admission of a student or refuse to admit a student with--out giving any reason ;
(iv) direct a Principal to cancel the admission of a student or direct the Principal not to admit a student ; and
(v) expel or rusticate a student for a specified period or for good."
18. Mr. S. A. Wadood, the learned counsel for the petitioner has raised two grounds of substance, firstly that the principles of natural justice applicable in cases of ex post facto investigation were not observed, although the petitioner had the right under section 7 of the Ordinance not to be excluded from the course of his study for which he had been admitted and, therefore, further the power vested in the Vice-Chancellor affecting such right of the petitioner must be exercised quasi- judicially ; and secondly; that the punishment or penalty imposed is very harsh as the petitioner has been debarred from pursuit of further studies.
19. With regard to contention No. 1, Mr. Rehanul Hassan Farooqui, the learned counsel for the respondents has taken a preliminary objection that since in the petition initially filed neither the facts constituting breach of rules of natural justice had been enunciated nor such ground taken, and further since even in the proceedings before the Discipline Committee or even in appeal which was filed after" two years of the impugned order expelling the petitioner for good, no such ground was taken, it was not open to the peti--tioner to take the entirely new ground by amending his petition. He has also raised the contention that the petitioner being guilty of laches is not entitled to get the discretionary relief from this Court.
20. With regard to contention No. 2, it has been urged on behalf of the respondents that the award . Of the punishment or penalty of expulsion . For good was reasonably made, after giving full opportunity to the petitioner to be heard and to exercise his right of cross-examining witnesses, and further that looking to the seriousness of the act of indiscipline the aforesaid punish--ment was rightly awarded by the Vice-Chancellor after the unanimous recommendation of the Discipline. Committee which consisted of senior Professors of the University, including the Vice- Chancellor.
21. With regard to ground No. 1, it is true that the same -,N as never raised before the Discipline Committee or the Vice-Chancellor and also that it was not initially raised in the writ petition filed in which the only ground taken was with regard to the harshness of the penalty imposed. It may here be stated that the explanation that the ground occurred to the petitioner only after the counter affidavit along with the documents had been filed by the respondents presumably has reference to copies of the statements made by witnesses Muhammad Hanif, an Audit Assistant and Muhammad Akram, Field Assistant who were witnesses of the incident that took place in which the petitioner is stated to have caused grievous injuries to Mr. Aqeel Zuberi. It is apparent from the first counter affidavit filed on behalf of the respon--dents that it was the version regarding the proceedings that took place before the Discipline Committee that not only the petitioner was heard in person, but he was given the opportunity to cross-examine the aforesaid witnesses, although he did not avail of the same and merely stated that his explanation was, as already given by him ; and that the witnesses in fact made the state--ments verbally before the Committee, but they were directed to write out ~: their statements for record. The same procedure was followed in the case of witness Qamar Abbas who had appeared for the petitioner also and since Dr. S. I. Ahmad who was Member Secretary of the Discipline Committee and also the Student Adviser had asked the witnesses to write down whatever they had said, the written version was addressed to him and did not bear any date, although there was the signature of the witness concerned under his own writing. Having seen the copies of the aforesaid statements it is argued that probably the petitioner was advised that be should take the ground by asserting that he was not given proper opportunity to cross-examine the witnesses who had just sent reports about the incident and had not appeared before the Discipline Committee. The assumption however that mere reports were signed is not supported by the fact that the writings are not dated and the version that the witnesses were told, after they had made their statements to reduce the same in writing' would appear to have support from the fact that the same were not dated. There are affidavits filed by Mr. Iqbal Mahmud Kidwai, Students Adviser and presently Member and Secretary of the Discipline Committee and Professor Dr. Riazul Islam who on 5-11-1977 had, attended the meeting of the Discipline Committee of the University as one of its members. The assertion about the procedure adopted during the enquiry proceedings made on behalf of the respondents has been consistent, whereas as already stated fresh facts not mention.-d have been alleged after the amendment of the petition in connection with the ground that the rule of natural justice, as contained in the maxim: "audi alteram parten" had not been followed. It is argued by Mr. Rehanul Hassan Farooqui and, in our opinion, appropriately, that the facts under dispute relate to an issue of fact and the petitioner.' is not entitled to seek a decision on the disputed facts b this Court in exercise of constitutional jurisdiction. . The facts now alleged b the petitioner are supported only by his own affidavit and we see no reason -4 why the version as given should be accepted when it is contrary to the version given in the affidavits of Senior Professors of the University against whom there is no allegation of mala fides or prejudice, by the. Petitioner. The only ground which remains for consideration and decision is whether the punishment and penalty awarded is arbitrary and unreasonable. Mr. S. A. Wadood, the learned counsel for the petitioner, has firstly relied on the Indian decision reported in AIR 1954 Pepsu 151 in connection with his contention that the power of the V. C. Must be exercised quasi judicially. It was held in that decision that the authority of the Head of Institution to expel a scholar is not unfettered or uncontrolled, but it is subject to the limitations (a) that he is not to exercise his power of expulsion arbitrarily and on grounds that are not reasonable and (b) that a solitary instance of misconduct would ordinarily not merit summary expulsion from the Institu--tion. However, there is the further observation with regard to the second condition that it should depend upon the nature of the misconduct in the circumstances of a particular case, because a solitary instance of misconduct may be of such a grave and serious nature that it by itself would merit a complete justification for the expulsion of a scholar from an Institution. The legal position with regard to the power of the Vice-Chanceller of Karachi University to expel a student has already been discussed above, and as statedby the learned counsel for the respondents, .There is no cavil with regard to the proposition that the power must be exercised quasi judicially.
22. The learned counsel for the petitioner has relied upon the Full Bench decision of the Allahabad High Court in Gajadhar Prasad Misra v. The Vice---Chancellor of the University of Allahabad and others AIR 1956 All. 477In that decision also it was held that the Vice-Chancellor in inflicting punishment upon students performs quasi-judicial function. It was observed as under :--- "In the process of deciding whether or not to punish a student, and if to punish, what punishment to award, the Vice-Chanceller cannot avoid objective determination of certain facts. It is only when he is fully satisfied that these facts have been established that he can proceed to punish the student.
23. There can be no escape from the conclusion that whether or not a student has breached the discipline of the University can only be decided objectively on the basis of the material available and is not capable of being determined on the subjective opinion of the Vice-Chancellor. Breach of discipline involves misconduct of some kind. How can the Vice-Chancellor determine whether or not a student is guilty of mis--conduct unless he has before him material in support of the alleged misconduct and satisfied himself that the same is trustworthy and sufficient to enable him to hold the student guilty of the misconduct charged. It is thus clear that the Vice-Chancellor can carry out his duty of deciding whether or not the student is guilty of misconduct only by judging the material in his possession and it is equally clear that be would not be able to discharge this duty properly and fairly or decide the matter justly without hearing the student."
24. The facts of the case under discussion were different and, as already stated, there is material on record to show that not only the petitioner was given proper a hearing but he was given full opportunity to defend himself by cross-examin--ing the witnesses, but he failed to take that opportunity for reasons best known C to him. The very fact that he filed the representation against the order after a period of two years indicates the attitude of his mind in the instant case. As already stated, the Discipline Committee which consisted of Senior Professors of the University recommended to the Vice-Chancellor to exercise his powers which recommendation he accepted and passed the impugned order. The afore--said order cannot be considered as unreasonable or arbitrary also because of the fact that the punishment inflicted is indicated in University Ordinance No. 24 as within his power to inflict and the act of indiscipline of which under the Rules, as already stated, he was the final judge to say whether the charge had been proved, was of such a nature that it was punishable as a criminal offence which, on conviction, could well have meant awarding of rigorous imprison--ment. It is a different matter that the victim compounded the case with consent of the Court which was done under the law, but the fact remained that the petitioner had committed breach of public morale by causing grievous hurt to a senior member of the teaching staff of the University in a most insolent and blatant way which could leave a very bad example for the other students to follow, if no punishment bad been awarded. The Vice-- Chancellor and the Senior Professors who could well be considered as having the best interest of the students at heart and due to their knowledge and erudition could be considered at least ordinarily to be above personal prejudice were parties to the impugned order. It is, therefore, clear that there is no arbitrariness or unreasonableness in the impugned order which could need interference in exercise of the constitutional and discretional jurisdiction of this Court. The learned counsel for the respondents has contended that the petition must also fail because of laches on the part of the petitioner who obviously acquiesced in the impugned order having taken no action and having made no protest for two years till he made the appeal which the law and the Rules did not allow.
25. The Discipline Committee did not consider the belated effort on the part of the petitioner to be such that they should take back the order passed two years earlier. There were no proper and valid grounds made out for reconsideration of the order passed two years earlier. The learned counsel for the respondents has relied upon a number of authorities to show that when the explanation for the delay is unsatisfactory, the only order is to dismiss the petition on the ground of laches. He has relied on the Supreme Court decision in Muhammad Latif v. The Chief Settle--ment Commissioner and others1975SCMR217 In that case the petitioner had exhausted his remedies under the Settlement Laws on 15th February, 1962, but filed writ petition on 13-12-1965. It was held that he should not have waited, after exhausting his remedies under the Settlement Laws, and therefore, the exercise of discretion of High Court in dismissing the writ on the ground of ]aches was upheld.
26. In Settlement Authority v. Mst. Akhtar Sultana PLD1976SC310where the delay in filing writ petition was enough to attract notice, it was held that the petitioner was duty bound to explain obvious delay in moving the writ petition and even though the High Court had admitted to consider con-- sequences of delay and laches the Supreme Court had to do so and to pass such orders as High Court could or should have passed.
27. In Akhtar Iqbal Puri v. The Chief Settlement Commissioner and others PLD 1977 Lah. 249 similarly where there was no proper explanation for inordinate delay in filing petition, the same was held liable to be dismissed on the ground of delay and laches.
28. In Inamur Rehman v. The Federation of Pakistan and others PLD 1977 Kar. 524where impugned directions were issued on 21-3-1972 and 28-3-1972, but the writ petition challenging the order was filed on 9-9-1973, it was held that the petition was barred by laches and hence liable to dismissal.
29. In Islamuddin v. Muzqffar Hussain Khawaja Aftab Ahmed and others (NLR 1979 Civil 346) it was observed as under :- "The Constitutional jurisdiction under Article 199 is combined with equitable jurisdiction as well and, for that matter, the conduct of the person invoking such jurisdiction is very important. Equity aids the vigilant and not the indolent. In the present case no reasonable explanation has been given for the inordinate delay. The petitioner must suffer from that."
30. In Aziz Ahmed Munshi Dil v. The Chief Settlement Commissioner, Lahore etc. PLD 1979 Note 68,where the writ petition was filed after a lapse of about three years from passing of the impugned order and explanation that petitioners had been pursuing civil suit was held not satisfactory. It was further observed that relief in constitutional jurisdiction being discretionary as well as equitable, the person aggrieved must act vigilantly and with clean hands. In that case findings of fact not in any way perverse and based on relevant evidence were considered and the High Court declined to go behind such findings of fact in its writ jurisdiction.
31. In the instant case the impugned order of expulsion for good was passed on 3-1-1978, and the writ petition was filed on 17th June, 1980. There is no explanation of the delay and it appears as if the petitioner had acquiesced in the order of expulsion. The mere fact that the order had remained effective so long cannot be considered as a ground for setting it aside by invoking the discretionary jurisdiction of this Court.
32. Before ending this judgment it is considered appropriate to point out that by order of this Court dated 17-8-1981 a directive was given to the respon--dent that one of the members of the Disciplinary Committee, as constituted, on the date that the impugned decision was taken should file affidavit in writing with regard to the procedure. Followed by the Committee inasmuch as the counter-affidavit already filed was by Mr. Iqbal Mahmud Kidwai who at the time of filing the counter-affidavit was not a member of the Discipline Committee at the relevant time.
33. Mr. S. A. Wadood, the learned counsel for the petitioner has filed appli--cation under Order XXIX, rule 1, C. P. C. Pointing out that the arguments in the matter had concluded when this Court directed the respondent to file affidavit of any professor' who was on the Discipline Committee at the relevant rime and the additional evidence at such late stage cannot be placed on record as it would prejudice the case of the petitioner. It may here be stated that under similar circumstances when the matter was fixed for final hearing and the arguments had been heard, the request of the petitioner for amendment of the petition had been granted, and since the ground that the procedure followed by the Discipline Committee was in breach of the rule of natural justice had been added at that late stage, it was considered fit and proper to pass the order with regard to the additional counter affidavit being filed, and the affidavit of professor Dr. Riazul Islam had been filed on the direction of this Court. It may further be stated that nothing new was added in the afore-- said affidavit of Dr. Riazul Islam except that it has supported the counter affidavit and the additional counter affidavit of Mr. Mahmud Kidwai ; and in any case for the reasons already given, since the ground had not been taken before the Vice-Chancellor or even in the initial petition filed before this Court the same has been held not fit for consideration at this stage, and since the additional affidavit has reference only to the aforesaid ground, no pre--judice is caused to the petitioner by considering it. The application is, there. Fore, dismissed.
34. Under the circumstances., stated, since the respondent in passing the impugned orders acted well within the ambit of provisions of law, we dismiss the petition with no order as to costs, and leave the respondent to consider whether the petitioner has had enough punishment already ; with full con--fidence that occupying such responsible position in the field of education and character building of youth, the respondent would be the best judge-to decide the plea of mercy.