K. E. CHAUHAN, J.-The petitioner appeared in M. A. Statistics Examination of the Punjab University in June, July 1967, on 21-7-1967, when he was taking up the papers No. VIII and IX-Option (C), he was allegedly caught by the invigilator for having in his possession two handwritten sheets of paper which were kept by him underneath the answer book. The invigilator compiled a report of this incident reciting that he had asked the candidate to make a statement which he refused to do.
This report was endorsed by the Deputy Superintendent and then by the Superintendent, (See Annexes. R1-A and R-B) for these reports). On receipt of these reports, it appears a charge-sheet dated 26/27-12 1967, just in routine (as we shall see in the later part of this judgment) was issued a copy whereof is Annex. "A" and it reads as follows:- "On 21-7-1967 at 10-15 a.m. While you were taking M. A. Statistics Examination of 1967. In papers VIII and IX Option (C) two handwritten leaves containing notes relevant to the question papers were recovered lying under your answer book from which you had copied. You also refused to give any statement to the Centre Superintendent."
2. This was supplemented by a further charge-sheet of the same date alleging that the petitioner had on 29-6-1967 instigated candidates to go on strike on account of the stiffness of the paper of that day. A copy of this charge-sheet is Annex. "B", but as it is not subject of adjudication before us because it is a common ground that the matter cited therein has ended, therefore, its contents need not be reproduced. However, the reply which the petitioner sent to these two charge-sheets is contained in Annex. "C", which reads as follows :- "To The Controller of Examinations, and Secretary Disciplinary Committee, University of the Punjab, Lahore.
Sir, With reference to your letter No. 9530/EU and 9525/EU dated 27-12-1967, I beg to submit the following facts:-
(1) I had neither tried to instigate the candidates nor any candidate walked out.
(2) As the letter No. 9525/EU is, concerned, all this is blame to me. Neither 1 was copying nor I had in possession of any kind of relevant or irrelevant helping notepapers.
On the basis of actual facts the real condition was that on some suspicion the Superintendent asked me to make a statement that I am copying but I refused to give him the statement because I was not guilty. Then he gave me threat to make here statement, otherwise he will turn me out from the examination hall. At this threat I requested him sympathetically that he could search of me but he refused to do so. Under this compulsion I wrote down those words which he has spoken to me.
Therefore it is requested that the matter will receive immediate attention with your kind decision.
Thanking you, Your obediently, (Malik Habibur Rahman)
Roll No. 5129 M. A. (Statistics) 893-B Police Colony, Layallpur.
Dated 30-8-1968.
3. The petitioner was heard on 2-10-1968 by the Disciplinary Committee which we are told consisted of there Members. On 9-10-1968, he sent a registered notice through his counsel to the Controller of Examination and the Secretary, Disciplinary Committee, alleging that his case which pertained to year 1967 was unusually delayed and should be decided expeditiously. In that notice it was pleaded that on 2-10-1968 he was not asked any relevant question by the Disciplinary Committee and all the questions put to him pertained to his past career and the only relevant question put to him was as to why he refused to make a statement before the Centre Superintendent to which he gave the requisite reply. It is not necessary to reproduce all the contents of that notice and mention of its relevant portions will be made in appropriate parts of this judgment. A further reminder was sent by the petitioner's counsel on 23-10-1968. It was after this, on 24-1-1968 by means of an endorsement No. 6393/E from the Controller of Examinations, that he was informed that he had been disqualified for a period of one year for using unfair means in the Examination Hall in July 1967. This letter reads as follows :- "University of the Punjab"
To FromThe Head of Statistics Mr. SIDDIQ AHMAD KHANDepartment University of M. A. Controller of Examina-the Punjab, New Campus tions, University of the Punjab,Lahore.
Lahore.
No. 6246/E Senate Hall, Lahore The 18-10-1968.
Unfair Means Case of Roll No. 5129 for the M. A. Statistics Examination held in July 1967.
Sir, I have the honour to inform you that the above-mentioned candidate has been disqualified for a period of one year for using unfair means in the examination held in July 1967, under Regulation 12(b) at page 196 of the University of Calendar, Volume I (1963-64). Both the punishments will run concurrently.
The candidate may please be informed accordingly and necessary information in this connection be sent to this office immediately."
Yours obediently.
(Sd.) Deputy Controller (Exams). For Controller.
Endst. No. 6393/E dated 24-10-1968.
Copy is forwarded to Malik Habibur Rehman 893-B People Colony, Layallpur for information.
(Sd).- Deputy Controller (Exams.), for Controller.
4. The above letter, apart from being misleading even otherwise seems to be suffering from certain lacunas. Actually, the decision of the Disciplinary Committee is reproduced in Annex. "G" dated 2-11- 1968, which is a reply to the petitioner's counsel's notice. The said decision reads as follows:- "The candidate appeared before the Committee on 2-10-1968. After hearing him the decision on this case was postponed till the next meeting of the Committee. We have today examined this case thoroughly. We have noted that the answer-book and the objectionable papers recovered from the candidate have been lost. It is an administrative matter and necessary action be taken according to rules. We cannot however, ignore the reports of the Invigilator, Deputy Super-- intendent and the Centre Superintendent. They have made a statement that objectionable papers were lying under his answer --book. The candidate is, therefore, definitely guilty of posses--sing objectionable material. He also refused to give an explanation to the Centre Superintendent.
Accordingly, we hold him guilty under Regulation 12(b) and 18(ii) and disqualify him for one year."
5. The petitioner has come up in writ petition against the aforesaid orders and proceedings of the respondents against him. Since the punishment is awarded to the petitioner under Regulation No. 12(b) and No. 18 of the University Calendar (1963-64), Volume I, pages 196 and 197 respectively, it is necessary to examine these Regulations in detail. We shall first take up the case of Regulation 18(2).
Regarding case under Regulation No. 18(2).
6. For the purpose of appreciating the point arising in this behalf, it is necessary to reproduce the said Regulation. It reads as follows :- "18. Any candidate who refuses to obey the Superintendent of an Examination in the Examination Hall, or changes his seat with another candidate, or changes his roll-number card, or creates disturbances of any kind during the examination, stages a walkout, resorts to a pen-down strike, or instigates others to do so otherwise misbehaves in around any Examination hall shall be liable to expulsion by the Superinten--dent or the Controller of Examinations or Inspector of a Centre or any officer duly authorised by the Controller of Examinations as well as to any of the following punishments according to the seriousness of the offence:
(1) Cancellation of the particular answer-book concerned.
(2) Disqualification for one year only.
(3) Disqualification up to three years.
The Superintendent of the Examination Hall shall report without delay such case in detail with evidence and explanation of the candidate concerned for final orders of the University."
7. The petitioner has been punished in the instant case because it is alleged that when the Centre Superintendent asked him to make a statement he refused to do so. It has been argued before us by the learned counsel for the University that refusal to make a statement amounted to refusal to obey the Superintendent within the meaning of the aforesaid Regulation and was punishable thereunder. We must say that this is not correct. Nowhere it is laid down either in the W. P.
(University of Punjab) Ordinance, XXII of 1961, or in the Rules or Regulations made thereunder that a student who is trapped or involved in any incident in the Examination Hall, is bound to make a statement before the Centre Superintendent when the latter asks him to do so. Question of refusing to obey any particular command of the Centre Superintendent can arise only when there is a corresponding duty to carry out the said particular command. The position of a student in a situation of present type is analogous to that of an accused and we cannot hold that when an accused is involved in a case, he is bound to make a statement, failure to do which is an additional offence by itself. Penal liabilities cannot be created just by inference and unless clearly defined and prescribed no one can be punished on mere considerations of ethics or good morals. If the student fails or refuses to make a statement, this may be a circumstance which may be taken note of at the subsequent stages when punishment or guilt or innocence of a candidate is to be determined with regard to the main incident itself but it cannot constitute an offence in its own place. Learned counsel for the respondents argued that since towards the end of Regulation No. 18 it is written that, "the Superinten--dent of the Examination Hall shall report without delay each case in detail with evidence and explanation of the candidate concerned for final orders of the University", it impels that the candidate concerned is bound to make a statement in the form of an explanation. This again is not a correct inference. All it means is that if any explanation is given by the accused candidate, the same is to be forwarded to the University for final orders. It does not create any obligation to make a state--ment on the spot. Furthermore, when a candidate says that he refuses to make a statement, this by itself is his statement and in this respect he cannot be punished under Regulation No. 18 hold--ing him guilty for not making a statement.
8. This was on the legal plane. Coming to the factual aspect of the case, learned counsel for the petitioner argued that the record does not show the commission of the alleged offence on the part of his client and that the authorities concerned have misread the said record in this respect. He submits that the requirement of Regulation No. 18 is that the command should have been given by the Superintendent of the Examination Hall (and no other officer) and it is his order which should have been disobeyed. He referred to the reply as given by the University in the form of Annex. "G" to the notice which was issued by the petitioner's counsel. In para. 4 of the said reply, the University had written as follows:-- "In his letter dated 30 August 1968, your client admitted that he refused to give the statement to the Centre Superintendent. Under the circumstances, the allegation of your client that he gave exculpatory statement cannot be true and so are other allegations made by him."
The letter which was relied upon by the University in the above paragraph is Annex. "C" and has already been reproduced earlier in Para. 2 of this judgment. From a perusal of the same it will be evident that in the said letter, there was no admission of the kind as was assumed by the University.
Rather the tenor of the letter from the portions, underlined' by us shows that the Superintendent asked him to make a statement "that he was copying" i.e., an inculpatory statement which he refused to give because he was not guilty. This is further corroborated from the report of the Centre Superintendent himself which he compiled on the day of the occurrence on 21-7-1967, a copy of which has been filed by the University in the form of Annex. R-B. It reads as follows:-- "The objectionable handwritten papers at pages 11 to 14 of the file were recovered from the possession of the candidate by the invigilator, Mr. Irtiza Rasul. The candidate (Roll No. 5129) was hiding these papers under the answer book and on the desk. When the candidate was asked to make a statement to this effect he refused to do so."
The words "to this effect" and "to do so" underlined by us in the above passage clearly show that the Superintendent wanted an inculpatory statement, but the candidate refused to give any such statement. It will thus appear that the University authorities totally misread their own record which, even if accepted in its apparent tenor, did not establish any offence. In these circum--stances, we have no choice but to declare the order passed under the said Regulation as to be without lawful authority and of no legal consequence against the petitioner which we hereby do.
Re. Case under Regulation No. 12
9. This Regulation is to be read along with order connected Regulations which are Regulations Nos.
10, 11, 12, and 13. They are reproduced below:-- "10. Every day before the Examination begins the Super--intendent or the Deputy Superintendant shall call upon all the candidates to search their pockets/and part with and deliver to him all papers, books or notes, which they may have in their possession. No late-comer shall be admitted unless this warn--ing has been repeated to him at the gate. The Superintendent or the Deputy Superintendent or both, as the case may be, shall forward to the Controller of Examinations every day a declaration signed by him or them and witnessed by all the Invigilators then on duty to the effect that he did, as a matter of fact, call upon the candidate to search their pockets and to surrender all papers, books or notes in their possession."
11. Any candidate who, after announcement made under Regulation 10, fails to part-with or is found to have in his possession or accessible to him, papers, books or notes relating to the subject of examination of that paper or detected in giving or receiving assistance, or using or attempting to use any other unfair means in connection with the examination, shall be expelled by the Superintendent of the Centre from the examination room.
12. If it is found that a candidate has access to, or is in possession of papers, books or notes, which might possibly be of assistance to him.
(a) but that his access to, or possession of such books, notes or paper was inadvertent, and was not mala fide his answer --book shall be cancelled, as a disciplinary measure without any implication of moral turpitude, and
(b) In other cases of possession be disqualified from passing any examination that year.
13. Any candidate detected in giving or receiving assistance, or found guilty of copying from any paper, book or note, or allowing any other candidate to copy his answer-book, or using for attempting to use these or any other unfair means shall be disqualified from passing any examination for a period not exceeding three years."
A study of these Regulations will show that no candidate is allowed to keep any kind of paper with him in the examination hall and if after an announcement to part with all types of papers, by the Superintendent or the Deputy Superintendent, a candidate is found in possession of any paper, "relating to the subject of examination of that paper," he shall be expelled by the Superin--tendent of the Centre from the examination hall. It will be seen that mere possession of notes, papers etc., relating to the subject of examination of that paper is actionable. In the instant case, it is to be remembered as was a common-ground before us that the candidate was not expelled by the Centre Superintendent. Another thing to be noticed is that within the meanings of Regulation 12, any allegedly recovered sheet of papers, can be said to be possibly of assistance to a Candidate only if it related to the subject of examination of that paper which the candidate was undertaking on the day of recovery. To continue with the narration of facts, when the report of the Centre Superintendent reached the University, the latter straightway issued a charge-sheet which has been reproduced in an earlier part of this judgment. An important feature of the said charge--- sheet is that it accused the petitioner of having copied from the an allegedly recovered papers. We asked Mr. Qureshi, Controller of Examinations who appeared before us along with his learned counsel Mr. M. Ismail Bhatti, as to how the charge of copying was levelled against the petitioner when it was not in the Centre Super--intendent's report. He submitted that in such cases the charge-sheet is firstly, issued just in routine and the recovered material and the answer book are separately sent at the same time to the Examiner to find out whether the candidate had copied from the impugned material or not. He said that various subjects being of technical nature, the Administrative Officer in the University could not say anything about the nature of the material recovered and its potentialities for being helpful in any respect to the candidate, nor could they pronounce upon the point as to whether any thing from them had been copied. This, according to Mr. Qureshi, could be done only by the Examiner, who is supposed to be a technical hand and an expert on the subject. This may be all right in its own direction but we are surprised to understand as to how a charge of copying had been framed without their being any initial report or suggestion in that behalf. However, for the purpose of finding out as to whether any copying had been done, the matter was referred as we were told by Mr. Qureshi, to the Secrecy Branch to solicit the views of the Examiner concerned vide Annex. R-2 on 11.8-1967 but unfortunately, the answer book and the allegedly recovered papers were all lost in that Branch without reaching the Examiner. Mr. Qureshi stated that in these circumstances no punishment on the charge of having copied anything from the allegedly recovered sheets of papers was awarded and -the petitioner was punished only under Regulation No. 12(6) for being in possession of two sheets of papers which might have possibly been of assistance to him. This statement of fact is not correct because in Annex. "F", dated 18-10-68 which is a letter from the Controller of Examinations to the Head of Statistics, University of the Punjab, New Campus Lahore, with a copy to the petitioner, it was written that the petitioner had been disqualified for using unfair means in the examination which shows that the actual use of some unfair means was found against him. The communication thus sent to the petitioner was at variance in material particulars from the order of the Disciplinary Committee, the context of which was totally different and which has already been reproduced earlier. It will thus be seen that not only the charge-sheet was prepared just in routine but the order conveying punishment was also issued in the same manner. However, when asked as to how could the nature of these documents be determined for finding guilt of mere possession if it could not be determined for the purpose of seeing whether the candidate had copied anything from the same or not, Mr. Bhatti answered that in this respect there were two pieces of circumstantial evidence before the Disciplinary Committee.
The first was the factum of the loss of the answer book and the allegedly recovered material. This loss, according to him, could have been at the instance of the petitioner and nobody else, because by that loss only the petitioner gained in shutting out the relevant evidence. The second was the recital in the reports of the Invigilator, Deputy Superintendent and the Centre Superintendent who all termed the two sheets of papers as "objectionable". The word" objectionable", according to Mr. Bhatti was comprehensive enough to indicate that the papers recovered must have related to the subject of which the examination was being taken by the student on that date. After making these submissions Mr. Bhatti argued that since we were not sitting in appeal against the orders of the Disciplinary Committee, therefore, we should not go into the point of the quantum of evidence in this case on the aforesaid matters and so long as there was some evidence, circumstantial or otherwise, before the Disciplinary Committee, on which it could give a verdict against the petitioner, that was not liable to be questioned in this Court on that ground. For this purpose, he referred to University of Ceylon v. Fernando ((1960) All E R 631) and University of Dacca and another v. Zakir Ahmad (PLD 1965 SC 90). There is no quarrel with the general proposition that in that cases pertaining to disciplinary actions against students, all that has to be seen is as to whether the matter has been decided in accordance with the rules of natural justice and the Court is not concerned with the quantum of proof. So without doubting the legal propositions propounded by the learned counsel for the University, let us see as to whether the above two circumstances were relied upon against the petitioner by the Disciplinary Committee. The order of the Disciplinary Committee has been reproduced in an earlier part of this judgment. Its perusal shows that though due notice was taken of the factum of the loss of the papers, but the matter was left at that stage by observing :- "It is an administrative matter and necessary action be taken according to rules."
No inference adverse was drawn against the petitioner on that count and the first plea raised by the learned counsel for the University, does not flow as a matter of fact from the decision of the Disciplinary Committee. The said contention, as such, drops out on the factual plane. Even otherwise, the petitioner was never charged with the accusation of having conspired on the loss of answer book and the allegedly recovered papers. The Disciplinary Committee as a body never heard him in that respect. This is also evident from the pleas taken in Para. 5 of the written- statement, relevant portion whereof reads as follows :- "The Committee was fully justified in passing an order under Regulation 12(b) and 18(11) on the basis of the reports made by the Invigilator, Deputy Superintendent and the Centre Superin-- tendent (Annex. "A") even though the objectionable material had been caused to disappear."
It is pertinent to mention at this stage that the decision was taken by the Committee in its meeting, dated 16-10-1968. Prior thereto, however, the petitioner had, through his counsel, on 9-1U- 19681evelled serious accusations against the Controller of Examinations and Secretary Disciplinary Committee, by a written registered A. D. Notice (Annex. "D"). In that notice, a clear position had been taken as regards nature of the questions put to the petitioner and of his having actually given a statement n to the Centre Superintendent which it was pleaded was exculpatory and it was suggested that it was for that reason the said statement was being concealed. Since by this letter serious questions of dispute had arisen, probably it was for this reason that the Disciplinary Committee in its order did not make the circumstance of the loss of the relevant answer book and the allegedly recovered papers, as a ground against the petitioner. Learned counsel for the University, therefore, cannot now use a circum--stance of such a disputed nature in support of the Disciplinary Committee's order when that Committee itself sought no support from the same while writing that order.
10. The second circumstance on which Mr. Bhatti has relied was the use of the word "objectionable" with reference to the allegedly recovered papers. Mr. Bhatti submitted that this nomenclature was clear enough to suggest that the recovered sheets must be such "which might possibly be of assistance to the candidate". We are not able to maintain the punishment of the petitioner on this count as well for various reasons. Firstly, the word "objectionable" does not necessarily mean that papers were of the kind contemplated is Regulation 12 (b) because as a matter of fact, keeping of any papers after warning of Regulation No. II, is objectionable. Secondly, no question regarding nature of the allegedly recovered sheets were put to him by the Disciplinary Committee as was alleged by the petitioner in his notice through his counsel (Annex. "D") and in para. 4 of the writ petition where it was clarified as to on what points his answers were obtained. These pleas were not specifically denied either in the reply to the notice or in the written-statement. This shows that the petitioner was not afforded hearing on this specific point. Thirdly, no oral statements of Invigilator, Deputy Superin--tendent or the Centre Superintendent were recorded though there is a misleading statement in the order of the Disciplinary Committee, which reads as follows : -- "They have made a statement that objectionable papers were lying under his answer-book"
It is a common-ground before us that this sentence has reference only to the statement contained in the reports of the officers concerned and no further statements were obtained from them.
Fourthly, the petitioner was not confronted with these reports and no question was put to him in this respect of the matter. All this shows that on this aspect of the case, the petitioner was not heard. Fifthly the charge was of using unfair means but that has been dropped because the nature of the contents of the documents and the answer book were not forthcoming and also because in none of the reports of the Invigilator, Deputy Superintendent and the Centre Superintendent accusation of copying was contained. In these circumstances, if it is a case of no evidence in that respect, it equally remained a case of no evidence in this respect as well, because the Disciplinary Committee recorded no statement of any person to explain the word "objectionable." Sixthly, if the material recovered related to the subject of examination of that paper, there was no reason as to why the Centre Superintendent did not expel the candidate from the Examination Hall. This was a strong circumstance relevant on the subject under discussion, but the University authorities failed to take it into consideration and even did not notice it at all. At least this shows that the nature of the allegedly recovered material was not known to the Centre Superintendent otherwise, he would have expelled the student. In this context, the mere use of word "objectionable" in his report was, therefore, not conclusive on the subject. All this indicates that there was neither any proper enquiry nor proper hearing and there was no evidence on which the impugned punishment could have been awarded to him.
11. The upshot of the above discussion is that the writ petition is accepted. The impugned orders of the Disciplinary Committee are hereby declared to be without lawful authority and of no legal consequence against the petitioner and are quashed. There will, however be no orders as to costs.