M. TABASSUM AFTAB ALVI, C.J.---The captioned writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby , show-cause notice dated 12.06.20,13, recommendations dated 01.07.2013 and order dated 02.08.2013, have been called in question for having been issued without lawful authority .
2. Precise facts culminating into filing of the instant writ petition are that petitioner is 1st class State Subject of Azad Jammu and Kashmir . It is stated that petitioner earlier filed a Writ Petition No.648/2013, titled "Mirza Kamran Bain v. The University of Azad Jammu and Kashmir and others" on 06.05.2013, for regularization of his admission, which was accepted by this Court vide judgment dated 06.06.2013. It is stated that respondents being aggrieved from the aforesaid judgment, issued him a show-cause notice dated 12.06.2013. It is further maintained that petitioner submitted his reply to the University authorities on 13.06.2013. Howeve r, the Disciplinary Committee of the University again issued a notice on 14.06.2013, to appear in person before the aforesaid committee, whereupon, petitioner verbally rebutted all allegations on the same day i.e. 14.06.2013, and submitted an application with the request to deliver documentary evidence so that he could rebut the same in written form on 21.06.2013. It is stated that despite of that, the disciplinary committee decided to rusticate petitioner from University with the caution that he could file an appeal before Vice-Chancellor within 10 days vide order dated 01.07.2013. It is maintained that petitioner being aggriev ed from the said order filed an appeal before Vice Chancellor , which was also dismissed vide the impugned order dated 02.08.2013, hence, the instant constitution petition.
3. The writ petition has been resisted by respondents through written statement, wherein it is stated that the University of Azad Jammu and Kashmir formulated the Code of conduct, and the same was approved by Syndicate on 22.06.201 1, with the enforcement from 31.07.201 1. It is further stated that all the students are duty bound to get themselves familiar with the terms of the Code of Conduct at the time of admission , however , petitioner committed severe violation through creating hurdles in the smooth flow of the educational activities, launching the protest and strike against the University Authority , hence, was awarded with the penalty of fine by the Disciplinary Committee on 28.12.2010. It is maintained that petitioner confessed the charges alleged against him while submitting the written replies before the Disciplinary Committee on 13.06.2013, and 21.06.2013, therefore, the said Committee had rightly recommended that petitioner violated the Code of Conduct and awarded major penalty vide order dated 01.07.2013, against which his appeal was rightly dismissed by Vice-Chancellor vide the impugned order dated 02.08.2013, hence, submitted for dismissal of the same.
4. The learned counsel for petitioner was directed to file written arguments within 02 days, vide order dated 17.10.2019, however , needful has not been done.
5. Raja Amjad Ali Khan, Advocate, appearing on behalf of respondents filed written arguments on 20.11.2015, wherein, it is contended that petitioner being student of the University was bound to follow the code of honor , as well as, code of conduct of the Univers ity. He further contented that petitioner failed to point out any illegality , infirmity , perversity or violation of law on part of respondents. It is averred that petitioner has concealed the facts from this Court, hence, writ petition is liable to be dismissed. It is also maintained that findings of the Disciplinary Committee are according to procedure laid down in the Code of Honor , as well as, Code of Conduct of students, therefore, he is not entitled to invoke extraordinary jurisdiction of this Court. It is further maintained that Vice Chancellor , who is principal executive of the University , enjoyed all powers as per the University of Azad Jammu and Kashmir Act, 1985, hence, the appeal of petitioner was rightly dismissed vide the impugned order dated 02.08.2013, therefore, craved for dismissal of writ petition.
6. We have perused the contents of writ petition and examined the appended documents with utmost care.
7. A contemplate perusal of record reveals that petitioner during the period of his admission in Kashmir Studies, in the University of Azad Jammu and Kashmir Muzaf farabad, was served a show-caus e notice on 12.06.2013, against which he submitted his reply to University authorities on 13.06.2013. The Disciplinary Committee issued a notice to appear in person on 14.06.2013, hence, petitioner appeared and allegedly rebutted allegations and also submitted an application with the request to deliver documentary evidence so that he could rebut the same in written form on 21.06.2013. The committee, however , rusticate petitioner from University through order dated 01.07.2013. Being aggrieved from the aforesaid order petitioner filed an appeal before Vice-Chancellor , as per section 50(7)(2) of the University of Azad Jammu and Kashm ir Act, 1985, which was dismissed vide the impugned order dated 02.08.2013. The stance of petitioner is that his appeal was dismissed without providing an opportunity of hearing vide the impugned order dated 02.08.2013. In this regard, paragraph No.6, ground (C) of writ petition is reproduced as under:-- "6(C) That the Vice Chancellor also before rejecting the appeal has not heard the petitioner and even not considered the request of petitioner with regard to documentary or oral evidence as requested by petitioner . The act of V ice Chancellor is arbitrary with mala fide intention and with personal malice."
The reply of respondents in written statement speaks as follows:- "C. That the Para No. (C) of the grounds of the writ petition is incorrect, hence, denied. The respondents have provided more than the appropriate opportunity to defend, deny or rebut the charges alleged against him. The petitioner not only failed to do so, but antagonistically confessed the charges."
From the aforesaid reply , it reveals that respondents failed to specifically denied the stance of petitioner about hearing by the Vice chancellor . As per Order VIII Rule 5 of Civil Procedure Code, 1908, every allegation of fact, if not denied specifically or by necessary implication, the same shall be taken to be admitted. The point pertaining to specific denial came under consideration before the Hon'ble Supreme Court in case titled "Qurban Hussain v.
Mst. Bashir Begum and 6 others" (PLD 1986 SC (AJ&K) 109). At page 1 15 of the report, it was held as under:- "The law, therefore, which admits of no exception, is that if the allegation of fact contained in the plaint is not specifically or by necessary implication denied in the written statement it may be taken as admitted in the discretion of the Court."
8. The petitioner specifically pleaded in paragraph No.6(c), of writ petition that the impugned order dated 02.08.2013, was issued by violating settled principle of audi-alteram-partem . The contents of the aforesaid paragraph No.6(c), have not been categorically denied by respondents in their written statement. The denial if any, shall be deemed as evasive, therefore, the impugned order was issued against the principle of audi alteram-partem hence, the same is bad in law. The principle of audi-alteram-partem , was considered by the Hon'ble Supreme Court in case titled "Muhammad Rafique Chaudhary , S.O. presently posted in Prime Minister Secretariat J&K and another v. Muhammad Yaqoob Janjua and 8 others" 2016 CLC 1240 . At page 1242 of the report, it was observed as under:-- "5. .... The hearing based on principle of audi alteram partem is a fundamental right of every person and no one can be deprived of such right...."
The same point came under consideration before the apex Court in case titled as "Muhammad Khurshid and another v. Secretary Education Schoo ls and 4 others" (2011 SCR 175), wherein, at page 180, it was opined as under: -- "The hearing based on principle of audi alteram partem is a fundamental right of every person. No adverse order can be passed against a civil servant without providing him an opportunity of hearing. The Constitution guarantees fundamental rights but when any order has been passed in violation of the rules or it is void ab initio, such an order can be cancelled or taken away without issuing a notice or hearing."
An identical point was resolved by the Hon'ble Supreme Court of Pakistan, in case titled "Ali Muhammad v. State PLD 2010 SC 623 . At page 630 of the report, it was opined as follows:-- "11. Issuing of notice to the parties is an essential requirement of the law to hear the parties as it is a well settled principle of law that nobody should be condemned unheard and no adverse order , concerning his rights can be passed against any party without hearing him......
The impugned order dated 02.08.2013, was therefore, issued without providin g an opportunity of hearing to petitioner , hence, the aforesaid order merits abrogation accordingly .
9. The crux of above discussion is that by accepting the instant writ petition, the impugned order dated 02.08.2013, is set-at-naught, as having been issued without lawful authority , hence, having no legal effect. The Vice-Chancellor- respondent No. 2, is hereby directed to provide an opportunity of hearing to petitioner and then decide appeal afresh as per law . No order as to the costs.