MUSHTAQ HUSSAIN, J.---Malik Abdul Majid son of Malik Fazal Ilahi took the Supplementary Examination of the Punjab University for the Bachelor of Arts degree which was held in January 1967. He appeared under Roll No: 6316. While he was answering one of the question-papers on 23rd January 1967, he is alleged to have copied the answer to a certain question from a paper which he had in his possession. He is supposed to have confessed before the Superintendent of the Examination Centre and to have given the following in writing:- The Superintendent reported the case to the Assistant Controller (Examination) of the Punjab University for action against him. The Superintendent was Professor F. I. Malik, a Lecturer in Arabic in Government College, Jhelum, while the Examination Centre was at the Zamindar College, Gujrat.
The report was accompanied by a statement of Ghulam Nabi, P. T. I. Of the Zamindar High School, Gujrat, in which he stated as follows:- "Roll No. 6316 was copying from a piece of paper. The Superintendent caught him. I also saw the paper, the paragraph that he had copied. The Superintendent marked it with a red pencil in the copy."
Underneath this statement appears the following line which has been scored out- Below this is the statement of the Deputy Superintendent which is 23 follows:- "I agree with the statement written above."
Page 5 of the Enclosures bears the heading "Detailed Report of the Superintendent" which runs as follows:- "The candidate actually copied. He must be punished under unfair means rules."
These five pages are part of a stero-typed form, known as "No. S. F. 9'". Another page, i.e. Page 6 has been added to it wherein it has been stated by the Superintendent that-- "the candidate entered the hall at 12-20, suddenly took the unauthorised paper from the desk and swa llowed it. This is a very serious offence. He must be punished very heavily."
This again is signed by the Superintendent.
2. Another statement underneath runs as follows:-- "The statement of the Superintendent is correct. I witnessed the occurrence."
It is signed by the same Deputy Superintendent. The third statement underneath runs as follows:- The signatures of Ghulam Nabi, P. T. L, appear under it, The fourth statement is in the following words:-- "The statement of the Superintendent is correct. I witnessed the occurrence."
This is signed by some person whose signatures are not fully legible. The fifth and the last statement or the page is of M. Ayub Baig who deposed that: "The statement of the Superintendent is correct. I witnessed the occurrence."
On the 7th page is the statement of Sardar Muhammad, Laboratory Assistant of the Zamindar College which is in the following words:-
3. On .31st March 1967 the Deputy Controller (Examinations) sent the following charge-sheet under No. 1928/ E. U. To Malik Abdul Majeed- "You are charged as under:
(1) On 23-1-1967 at 11-40, a.m. While you were taking examination in English Paper `C' for the B.A.
Examination, you were found copying from a piece of paper. You took help of that objectionable material and swa llowed it.
(2) ------------------------------------------
(3) You are hereby called upon to submit your explanation to the above charge to the undersigned by name under a registered J cover through the principal and, also show cause within a fortnight of the receipt of this letter why you should not be disqualified under the Regulation printed on reverse.
(4) You will also have the opportunity to be heard in person, if you so desire."
4. Then follows the explanation of Malik Abdul Majid addressed to the Controller of Examinations of the University refuting the charge against him in toto and wishing to be heard in person. It was, inter alia, submitted in the reply that the petitioner's father is the leading political worker of the district and the petitioner suspected that the opponents of his, father had engineered the case against him.
5. This document is followed by a telegram requiring the petitioner to appear at his own expense before the Disciplinary Committee on 9 May 1967. Page 15 of the University File contains a synopsis of the case and is followed by an order signed by three persons probably the members of the Disciplinary Committee.
It runs as follows:-- "Candidate heard in person. Disqualified for three years under Regulation 18(3) and for two years under Regulation 13. Sentences to run concurrently."
6. The candidate was duly informed and he filed an appeal against this order before the Vice- Chancellor followed by another appeal. These two appals have been submitted one after the other on successive days. It was, inter alia, pointed out in these appeals that in spite of she persistent requests made by the petitioner the Disciplinary Committee neither summoned the Superintendent nor his staff for cross-examination so that truth could be sifted out.
A note was prepared by the Deputy Controller (Examinations) who sent it to the Chief Controller (Examinations). The Chief Controller wrote the following recommendation on it-- "I am afraid we will be in a fix in many ways if we allow this precedent to be correct.th
(1) The Supervisory staff is not in our permanent employ and we have no hold on them to keep them to their original report. Under local pressure they may tone down their statement in a cross- examination.
(2) if such cross-examination is permitted, it is bound to scare away people and we may not get persons for these appointments. As it is even now, senior teachers do not like to work as Superintendents."
The appeal malt, therefore, be rejected pl."
The Controller of Examinations forwarded it to the Vice Chancellor with this recommendation and the latter passer he following order on it--- "There is no merit in the appeal which is hereby rejected."
7. The marked Answer-book also forms part of the University File which shows that the candidate obtained only seventeen marks in all the five questions.
Hence this writ petition.
8. It has been urged before us by the learned counsel for the petitioner that the petitioner has been condemned unheard in so far as the statements which have been used against him in evidence were recorded in his absence and that he has not been given any opportunity to test their correctness by subjecting them to cross-examination. It was further contended by the petitioners that political pressure of his father's opponents has resulted in this false charge against him. To prove the falsity of the charge, he has filed duly attested affidavits of Abdul Aziz, Muhammad Ayub Beg and Ghulam Nabi, who have stated on solemn affirmation that they were invigilators at the aforesaid examination, that the petitioner's confession was obtained by the Superintendent under duress, that the witnesses never saw any paper with the petitioner nor was any removed by him from the table or swa llowed by him in their presence nor did trey see him copying and that their statements were recorded by the Superintendent under compulsion and a wrong statement of facts was made.
9. Learned counsel for the University has relied upon the judgment of the Supreme Court in the University of Dacca v. Zakir Ahmad (PLD 1965 SC 90), and more particularly on the following observations is that judgment which appear at page 104 and run as follows:- "Of course, the person, body or authority concerned must act in good faith, but 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."
It was submitted by learned counsel that it would be extremely inconvenient for the University authorities to examine witnesses in the presence of candidates or to permit the candidates the facility of cross-examining them. 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 the 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. The argument oft learned counsel for the respondent is based on an incorrect interpretation of this decision of the Supreme Court which has resulted from not considering the very next sentence of the judgment which runs as follows:- "`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 affected to correct or contradict any relevant statement prejudicial to hire: In other words, in order to act justly and to reach just ends 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."
"Provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him," was, at all, complied with. It may perhaps have been a different matter, if these statements had been brought to the notice of the petitioner and he had been given an opportunity "to correct or contradict them". This was, however, not done in the present case and, therefore, the basic minimum prescribed by the Supreme Court in the aforesaid case even was not adhered to.
10. We may state at this juncture that the only method available to the petitioner in a case like the one that we have before us, to correct or contradict these statements could have been by being permitted to cross-examine the persons who had made those statements. And is it not a fact that these very persons have sworn affidavits to say that the statements made by them are wholly incorrect and were given under compulsion. It could, therefore, be expected that if they were cross- examined by the petitioner before the Disciplinary Committee they would have repeated the same statements as they have made in the affidavits.
11. We may even go to the extent of saying that had the petitioner been given the opportunity to produce these affidavits before the Committee, and this could be given only if he were informed of the statements and the names of the makers of those statements which were utilised against him the decision of the Committee itself might have been, different; for, after all, would it be too much to assume that the members of the Disciplinary Committee were acting in good faith and honestly, and there is no reason to assume that their ju3.Gment would not have been affected by the fact !Hat the statements on which they were being asked to rely were, in fact, given under compulsion and did not give a true picture of the facts.
12. The second reason which has led the learned counsel for the respondent to make the aforesaid submission is that he has not adverted to the sentences which precede the observations relied upon by him. They are-- "What these principles of natural justice are is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was pointed out by the judicial Committee in the case of The University of Ceylon v. Fernando."
It is, therefore, not possible to lay down any cut and dried standards which it would be necessary to comply with in a given case before it can be said that the principles of natural justice have been adhered to. Each case has to be decided upon its own facts and therefore it would not be correct to assume that cross-examination of witnesses is a mere surplusage in all cases and that no case can be found in which it would be utterly impossible to find out the correct state of affairs without referring to this time-honoured medium of bringing out the truth from a person deposing about certain matters. The Supreme Court had, therefore, advisedly stated that it is not possible to lay down these principles of natural justice with any exactness. When their Lordships of the Supreme Court used the expression, "it is not bound to treat the matter . . . . ." they were obviously contemplating instances in which it may be necessary to permit such a facility, to wit, the case before us.
13. The third mistake which learned counsel has made is in not taking note of the previous paragraph of the judgment of the Supreme Court wherein their Lordships have concluded by saying that- "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."
It is, therefore, incorrect to say that the manner in which the demand of natural justice can be satisfied is the same in every case irrespective of the facts with which a person is faced in a particular matter.
14. An argument was raised before the Supreme Court in this case that-- "the interests of discipline in educational institutions transcend the interests of natural justice."
Certain cases were cited in support of it. The Supreme Court however, found that barring one, "in all other cases it appear, that an enquiry of some kind was in fact held and the students against whom action was proposed to be taken was questioned by the appropriate authority". And their Lordships of the Supreme Court observed that- "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 dis--cipline 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 placid 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 reason--able 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 he punished or condemned what are the allegations against hint and by giving him a fair opportunity to correct or contradict any relevant statement to his prejudice."
This judgment of the Supreme Court, therefore, far from supporting the contention of learned counsel for the respondent, cuts at its very root.
15. We may quote from Marriott v. Minister of Health ((1936) 154 L T R 47), at page 50, where Swift, J.
Observed- "If one party is heard without the other having an opportunity of knowing what he has said or of testing what he has said by cross-examination, or of making answer to what has been said, then clearly there has been an infringement of the rules of natural Justice. As Lord Haldane said, no body who has to decide anything can decide unless he hear; both sides with regard to the matter."
16. Keir and Lawson in the Fourth Edition of their Book "Cases on Constitutional Law" have referred to a judgment in R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott ((1933) 50 C L R 256), wherein while dealing with the question of the rules of evidence to be adopted by an Administrative Tribunal it was observed- "This does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth. No Tribunal can, without grave danger of injustice, set them on one side and resort to methods of enquiry which necessarily advantage one party and necessarily disadvantage the opposing party."
17. We have, therefore, no doubt in our mind that by not informing the petitioner of the evidence that was being used against him for the purpose of finding him guilty and further by not affording hire any opportunity to cross-examine such witnesses, the witnesses who made those statements, because in this particular case that was the only method by which the veracity of their statements could be tested, the Committee transgressed the basic and essential requirements of natural justice.
18. Coming to the appellate order, we find that the petitioner was not even heard by the Vice- Chancellor who simply endorsed the recommendation of the Controller of Examinations who in turn had based them on arguments relating to the incon--venience which would be caused to the University authorities by permitting cross-examination in such a case. It was held in Abdur Rehman Pasha v. The Chief Settlement and Rehabilitation: Commissioner (PLD 1961 Lah. 12), that the right to file an appeal given to a person implies that the appellant is entitled to be heard before his appeal is dismissed. It was stressed that this is so even if the Statute does not expressly provide that the appellant has the right of being heard. Similarly it was held by the Supreme Court in Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45), a case quoted with approval in the University of Dacca case, quoted above, observed that- "It could not have been the intention to give the person aggrieved the right of appeal and at the same time to leave it to the discretion of the appellate authority to consider or not the very representation in appeal . . . . . . That being so when a Statute gives a right of appeal it should under--stood as silently implying when it does not expressly provide that the appellant shall have the right of being heard.'
19. The petition is therefore accepted and the impugned orders passed by the Disciplinary Committee and by the Vice---Chancellor in appeal are declared to be without lawful authority and of no legal effect. This order shall, however be no bar to the University authorities dealing with the petitioner in accor--dance with law after holding a proper inquiry in accordance with known principles of law.
20. In the circumstances of the case, the parties shall be left to bear their own costs.