1. ' BASHARAT AHMAD SHAIKH, J.-The appellant appeared in the Intermediate Examination in Autumn 1993. Subsequently on 2nd of December, 1993 a charge-sheet was served on him wherein it was stated that on 21st of October, 1993 he sat in the English paper held on 21st of October 1993 impersonating for another candidate whose roll number was 2760. According to the charge-sheet it was an offence under rule 11(ii) of the Calender of the Board, he was called upon to submit his written explanation as to why he should not be proceeded against. He was informed that , in case he so wanted, he could appear before the Disciplinary Committee on 20th. Of December. Notice was sent on behalf of the Board of Intermediate and was signed by the Assistant Controller of Examinations. In his reply the appellant denied the charge by stating that he did not sit in the examination by impersonating for another candidate, as alleged. The Disciplinary Committee found him guilty of an offence under rule 11(ii) of Chapter 7 and he was disqualified from appearing in five examinations.
2. ' Thereupon, the appellant filed a writ petition. In reply to the writ petition it was claimed that the student had been proceeded against under rules. It was stated that he was served with a notice and details of the allegations were also conveyed to him. It was further stated that the Superintendent of Examinations had also reported the case to the board for action against the appellant. It was contended before the High Court that the petitioner had been condemned unheard but this contention was repelled by holding that the petitioner was summoned to appear before the Discipline Committee and his view point was also placed before the appellate authority which considered the case put forward by him. The writ petition was dismissed.
3. ' It was vehemently contended by Mr. Shiraz Kayani, the learned counsel for the appellant, that appellant denied the charge levelled against him but the Discipline Committee did not record any evidence before awarding punishment on him. He submitted that the charge against appellant is quasi criminal in nature and no finding ,could be recorded against him without recording of evidence and giving him an opportunity of cross-examining the witnesses.
4. ' Was alternatively contended by Raja Shiraz Kayani that the Board authorities dealt with the case as if it was the duty of the appellant to prove his innocence while the rule is that the appellant could be found guilty in terms of rule 11 only after the material which was in possession of the Board authorities tending to incriminate the appellant was brought to his notice and after allowing him to meet the charges. The learned counsel for the respondents, Kh. Shahad Ahmad, supported the judgment of the High Court by contending that the appellant was properly charge-sheeted and was also given an opportunity of personal hearing.
5. It appears that before the High Court the point that witnesses were not examined in presence of the appellant was not raised. It also does not find mention in the memorandum of the writ petition or in the judgment of the High Court. It is a mixed question of law and fact which is not allowed to be raised for the first time in this Court. The case-law on the subject also does not support the contention, as would be presently seen.
6. ' The law with respect to the cases of unfair means against students is by now well-settled., In the case of University of Dacca v. Zakir Ahmad PLD 1965 SC 90 it was held by the Supreme Court of Pakistan that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceeding might result in consequence affecting the person or property or other right of the parties concerned. It was held that this rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings. The learned Judges observed that it was not, however, possible to lay down any exactness as to what the principles of natural justice are and thus have to be variously defined in various cases. In the words of Hamoodur Rahman, J., who spoke for the Court:- "What these principles of natural justice are it 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. Tuker, L.J., said in Russel v. Duke of Norfolk (1949) 1 All E.R. 109 'the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth.' Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the 'elementary and essential principles of fairness' as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and 'to correct or controvert any relevant statement brought forward to his prejudice.' Of course, the person, body or authority concerned must act in good faith, but it 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. 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 him. 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."
7. ' This judgment has been subsequently followed by the Superior Courts of Pakistan. However, in Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore (PLD 1971 SC. 838) the Supreme Court of Pakistan observed as follows:- "It is true that domestic Tribunals like a University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial, and while these can, consistently with the demands of justice, be ignored, it does not, by any means, follow that such domestic forums, while dealing with valuable rights and privileges of an individual, can snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof...."
8. ' In Vice Chancellor, University of Punjab v. Muhammad Zahur Nasir (1985 SCM R 802), in particular circumstances of that case, it was held by the Supreme Court of Pakistan as follows:- ' If the Committee had found itself agreeable to the suggestion of the respondent and called the responsible members of the staff and examined them in presence of the respondent or had given him an opportunity to give an explanation to what they might have to say, they would have sufficiently satisfied the requirements of fair opportunity of hearing. Unfortunately this cause of action was not adopted, and therefore, we have come to the conclusion that the judgment of the High Court is unexceptionable."
9. ' The penalty in the present case has been imposed under rule 11(ii) of Chapter 7. The relevant part is reproduced below:- "11. If a candidate is found guilty of any of the following offences, he shall be disqualified (i)
(ii) abetting in or committing misconduct of a serious nature such as impersonating, abusing, assaulting or threatening to assault any person engaged in connection with an examination or an official of the Board."
10. ' In the writ petition filed in the High Court the petitioner in para 3 of the writ petition averred that when a charge-sheet was issued to him he submitted his reply in which he denied the allegation levelled against him and also requested the concerned authorities for personal hearing. Copy of the reply was placed as Annexure 'B' with the writ petition. In para 4 it was averred that personal hearing was not given to him. An affidavit in support of the averment was also filed. In the written statement filed by the respondents it was stated that the appellant was heard, but it is not supported by a valid affidavit. An affidavit was filed but it was sworn by the learned counsel for the respondents before the High Court. We are unable to accept this affidavit. The affidavit should have been sworn by a person conversant with the facts of the case. We note that apart from the Board of Intermediate, Controller of Examinations and the Disciplinary Committee were also impleaded in the writ petition as respondents, but the Controller of Examination or any member of the Disciplinary Committee did not file an affidavit that he was personally heard. The counsel for the Board had no knowledge of the relevant facts and his affidavit is of no avail to the Board. It is provided in rule 38 of the Azad Jammu and Kashmir High Court (procedure) Rules 1984 that all questions falling for determination in writ proceedings shall be decided ordinarily upon affidavits and documents. When the appellant filed an affidavit that he was not given a personal hearing it should have been met by an affidavit of a person who was acquainted with the facts of the case but it was not done. There is no other material also to show that the appellant was given a personal hearing. The decision of the Disciplinary Committee is available in the High Court file as Annexure 'C'. It does not state that the appellant was given a personal hearing. In these circumstances we are unable to hold on facts that the appellant was given a personal hearing. It follows that the minimum requirements of rules of natural justice were not fulfilled.
11. ' We also note that show-cause notice was addressed to Syed Safdar Hussain Shah and not to Syed Makadar Hussain Shah, which is correct name of the appellant. However, parentage was correctly given and his roll number was also correct. It is undenied that the charge-sheet was duly served on the appellant. Therefore, we do not take notice of this omission but we notice that in the charge-sheet the appellant was called upon to file his explanation within seven days and it was further stated that "apart from filing the written statement if you want to furnish a personal explanation you may contact the Disciplinary Committee on 12th of December 1993 at 8-30 a.m.".
12. The form of the charge-sheet does create the impression, as has been advocated on behalf of the appellant, that the Board authorities were calling upon the appellant to prove his innocence. It may be observed that when the appellant was directed to file his explanation he had no knowledge of the material which was to be used against him. Calling upon him to furnish his explanation in such circumstances did not fulfil the requirements of justice. An explanation can only be furnished by a person proceeded against when he is made conversant with the charge against him and the material which was to be used against him. The procedure adopted in the present case was that in the charge-sheet it was only stated that he had been caught impersonating for Roll No,2760 on 21st of October, 1993 at High School Chatter Dimel in English Paper I. No other material was mentioned. It was not disclosed as to who had reported against the appellant and what was the material on the basis of which the proposed penalty was to be imposed on him. In absence of this information it could not be expected that the appellant would be able to meet the charge against him. This is violation of rule of natural justice. There may be cases in which the person proceeded against may not turn up before the Disciplinary Committee. In such cases it can be assumed by the concerned authorities that the person proceeded against has no defence and a finding may be given against him in his absence, but the present case does not fall in this category.
13. For the reasons stated above we vacate the order passed by the High Court and order the acceptance of the writ petition filed by the appellant. The order of disqualification is held to have been passed without lawful authority and is of no legal effect. However, since the view we have formed in the case is based on the technicalities of law it would not absolve the appellant of the charge against him. The concerned authorities of the Board of Intermediate and Secondary Education may therefore proceed against him de novo in accordance with law, if so advised.