' The relevant facts for the decision of this Constitutional petition are that the petitioner did his matriculation examination and got admission in 1st year Pre-Medical Session 1995-96 in Government College, Lahore under the Self-financing' basis after remaining unsuccessful for admission on merit. He also got admission in the Iqbal Hostel of the College. Thereafter, Adeel Abbas, another student of the College was also, allowed admission to Iqbal Hostel and he was to share room with the petitioner. The Superintendent of the hostel, respondent No,2, learnt that the room-mate of the petitioner is not Adeel Abbas but his name is Imran Iftikhar, who had fraudulently secured allotment of hostel accommodation with the active collusion of petitioner and one Malik Imran Javed. He proceeded to record on 4-3-1996 statement of the petitioner, who confessed his guilt. Thereafter, show-cause notices were issued to them and their fathers were also sent for. The Disciplinary Committee recommended rustication of the two students. The matter was placed before the College Council, which decided to order compulsory migration before 20-5-1996. The petitioner proceeded to challenge this order in Constitutional petition, which came up for limine hearing on 20-5-1996. The learned A.A.-G. Was present on Court's call. He was directed to obtain instructions from the respondents for 21-5-1996 and also sent for SHO/I.O., P.S. New Anarkali, Lahore.
The order was complied.
2. The learned counsel for the petitioner argued that neither the petitioner was heard nor served with a show-cause notice nor provided opportunity to explain his position, therefore, order is illegal and in this behalf he referred to the judgments in the cases of The University of Dacca v. Zakir Ahmed (PLD 1965 SC 90), Abdus Saboor Khan v. Karachi University and another (PLD 1966 SC 536) and Ahmad and 3 others v. Vice-Chancellor, University of Engineering and Technology and another (PLD 1981 SC 464). It was added that the so-called confessional statement was secured by respondent No,2 through coercion and after giving beating to the petitioner at mid-night. It was added that the petitioner proceeded to deny the allegations on the first opportunity. The next argument was that the petitioner has been made scape goat for the fault of respondent No,2 and punished on mere suspicion otherwise he had no hand in the admission of Imran Iftikhar to the hostel. It was added in this behalf that two families do not have very cordial relations, therefore, there was no question of petitioner being a party to the fraud played by Imran Iftikhar.
3. On the other hand, the learned A.A.-G. Argued that Imran Iftikhar and the petitioner both hail from Kamokey and they did matriculation together. It was added that Adeel Abbas handed-over his documents to Malik Imran Javed for submission of his admission form with the Lahore Board. He thereafter kept the original documents of Adeel Abbas in his Almirah in the hostel. He complained that the petitioner had stolen the documents from his Almirah and got Imran Iftikhar, an outsider, admitted in the Iqbal Hostel impersonating him as Adeel Abbas. It was added that the principles of natural justice as well as principles of Criminal Procedure Code and Civil Procedure Code were not applicable to the disciplinary proceedings against the students. It was argued that the misconduct of the petitioner was proved beyond any shadow of doubt. He was served with a notice and submitted reply before the Disciplinary Committee and thereafter he as well as his father were heard by the College Council. This was sufficient compliance of the principles of natural justice. The learned A.A.-G. In this behalf has referred to Chairman, Board of Intermediate & Secondary Education, Lahore and another v. Ali Mir (1984 SCMR 433).
4. The arguments were heard at length and the matter was kept for announcement of the judgment on the same day but while dictating judgment it was considered necessary in the ends of justice to seek clarification from the respondents as to whether the position of attendance of the petitioner was intimated to his father and the result of 1st year. I also wanted to ascertain the exact extent to which the principles of natural justice were applicable to the educational institutions in such situation, therefore, Ch. Ijaz Ahmad, Advocate was asked to assist this Court as amicus curiae.
5. Ch. Ijaz Ahmad, Advocate has appeared and argued that the principles of natural justice as far our country is concerned are to be deemed part of every statute until specifically excluded by positive word in the statute. He argued that before referring to the precedents he would like to refer to following prominent text books and particular portions dealing with the situation in hand:
(i) Judicial Control of Administrative Action in India, Pakistan and Bangladesh by Dr. Fazal's: "2. Further, there is the question as to the extent of the application of the rule. In England and in the Commonwealth countries the issue is dominated by dispute as to the nature of adjudicatory procedure, Controversy is centered round the judicial and administrative nature of the procedure.
In India the Law Commission recommended the enactment of general statute embodying the principles of natural justice applicable to all the Tribunals. In the absence of such a statute as yet, the issue is determined in India solely by the criteria of judicial or quasi judicial nature of a proceeding. In Pakistan, however, the requirement of hearing is binding on all the tribunals unless expressly excluded by a statute) irrespective of the nature of the procedure."
(Second Edition, page 31)
(ii) Principles of Administrative Lew: by J.A.G. Griffith and H. Street: "This theme was developed in the Arlidge case. Lord Haldene said that 'they must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made.' These two principals have been commonly called the 'rules of natural justice,' a phrase used extensively in the ninteenth century by the Courts in their countrol of Courts of summary jurisdiction...... "
(Fifth Edition, page 153)
(iii) Constitutional and Administrative Law by R.H. Jones: "(b) Audi alteram pertem (literally 'hear the other side').
(i) A body which has a duty to act judicially in deciding an issue must allow each side to express its views. See XII, 5 above, for the occasions when there is a duty to act judicially.
(ii) The maxim reveals its own content. There must be a hearing, i,e,, a chance to express views.
Interpreted in a restrictive way (as it is by the Courts) this expression may be written and not necessarily oral. But it does imply a hearing about the issue in question and, therefore, the party against whom the initiative is taken must know the case he has to meet-both the point of it and the evidence in support of it. Otherwise the hearing is fanciful and irrelevant. The terms of the maxim, however, do not include the rights to legal representation, to call witnesses or to cross- examine the opponent's witnesses. In fact these things may be allowed either by a governing statute or by the particular procedure of the determining body, but they are not inherent in the common law maxim.
' Board of Education v. Rice (1911) (H.L.). The facts are set out in XII, 7, above, Lord Lorebum, L.C., speaking of the instances where there is a duty to ascertain the law and the facts said: 'I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty laying upon everyone who decides anything. But I do not think that they are bound to treat such a question as though it were a trial. They have no power to administer an oath and need not examine witnesses. They can obtain information in any way they think best always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."
(Year 1968, page 199)
(iv) Thereafter, he with reference to Administrative Law by H.W.R. Wade argued that rule requires fair hearing from anyone who decides anything and acknowledges its practical limitations when applied to administration, Government Departments, who can follow the same fundamental rules of fair play as the Courts without having to follow legal procedure. He also referred to the case of Local Government Board v. Arlidge (1915) A.C. 120, H.L.) included in the book 'Cases and Statutes on Constitutional and Administrative Law by H.W. Clarke.
(v) Introduction to Administrative Law by David Foulkes: "In Wiseman v. Bornemann a claim to an oral hearing before an Income-tax Tribunal was abandoned. University of Ceylon v. Fernando illustrates a further limit on natural justice. An inquiry was held into an allegation by one student, that another, F, had cheated in an examination. B gave evidence when F was not present. The allegation was found proved. F alleged that the decision was void as contrary to the rules of natural justice in that the inquiry had not tendered B for cross- examination. The Privy Council said that this could not in itself be regarded as a breach of the rules of natural justice but it ' might have been a more formidable objection' of F's request to question B had been refused."
' Herring v. Templeman (1973) 3 All. E.R. 569) concerned the expulsion of a student from college. The college's academic board was empowered to recommend to the principal the dismissal of a student, and the principal in turn could pass on the recommendation to the governing body which, before confirming it, had to consider the student's representations. The Court of Appeal rejected H's argument that he should have been given a hearing by the academic board and by the principal.
He was entitled to be heard, but only by the governors." Fourth Edition, pages 164 & 168).
(vi) Administrative Law by J.F. Garner: Thus, where a member of the public has a statutory right to appeal to a particular Minister, that Minister is not bound to see the appellant personally, and the Minister is entitled to determine the appeal. In such manner as he sees fit, provided he observes the principles of natural justice. Proceedings before an administrative body need not follow in all respects those before a Court of law, and even if the 'judge' questions witnesses in the absence of the 'accused', this does not necessarily involve a breech of the principles of natural justice. In the leading case of Local Government Board v. Alridge (1915) A.C. 120), 'Viscount Haldane, L.C., whilst referring to the passage from Board of Education v. Rice, above cited, said:" (Fourth Edition, page 118)
(vii) Judicial Review of Administrative Action by S.A. De Smith: "....Fairness may still call for a right to a hearing (albeit a hearing different in scope and character from that accorded by a Court of law) despite, the fact that the ,ultimate decision can properly be based on extra-judicial considerations...."
"If anybody is entitled to be heard, the persons so entitled will be those immediately affected by what is proposed and those upon whom personal service of prior notice is required...." (Third Edition, pages 164 & 175).
6. Ch. Ijaz Ahmad, Advocate thereafter proceeded to refer to the case-law on the point of maintainability of the writ petition in the matter of the educational institutions. In this behalf, reference was made to Sh. Muhammad Aman Nomani v. Principal, Government College, Lahore and others (PLD 1973 Note 146 at p.221), Saeed Nawaz v. Board of Intermediate & Secondary Education, Lahore and another (PLD 1981 Lahore 371), Chairman, Board of Intermediate & Secondary Education, Lahore and another v. Ali Mir (1984 SCMR 433), R. v. Dunsheath (1950) 2 All E.R. 741), Thorne v. University of London (1966) 2 All E.R. 338), Board of Intermediate and Secondary Education, Lahore v. M. Massadaq Naseem Sindhoo (PLD 1973 Lahore 600) and R. v. Senate of the University of Aston (1969) 2 All E.R. 964).
7. The other category of the precedents was about right of hearing and its extent. In this behalf, he referred to Mrs. Anisa Rehman v. P.I.A.C. And another (1994 SCMR 2232), Messrs Faridsons Ltd.
Karachi, and another v. Government of Pakistan and another (PLD 1961 SC 537) and Commissioner of Income-tax, East Pakistan v. Fazlur Rahman (PLD 1964 SC 410).
8. The learned amicus curiae argued that no writ petition would be competent in respect of disciplinary proceedings by educational institutions without allegations of mala fide. He in this behalf referred to the cases of Sh. Muhammad Aman Nomani, Saeed Nawaz (supra) and Ali Irtaza v. Principal, Lawrence College, Gorah Gali Murree, District Rawalpindi and 2 others (1992 MLD 2273).
9. Ch. Ijaz Ahmad, Advocate argued that the principles of natural justice, their scope and applicability to the educational institution was considered in large number of precedents. He in this behalf referred to cases of Abdus Saboor Khan v. Karachi University and another (PLD 1966 SC 536), Zakir Ahmad v. University of Dacca and another (PLD 1965 Dacca 122), The University of Dacca v.
Zakir Ahmed (PLD 1965 SC 90), Murlidhar v. University of Karachi (PLD 1966 SC 841), Rahat Siddiqui v.
Board of Intermediate & Secondary Education, Lahore and another (1977 SCMR 213), Akhtar Ali v.
The University of the Punjab (1979 SCMR 549), Syed Arif Ali v. Vice-Chancellor, University of Karachi (1969 SCMR 239), Board of Intermediate and Secondary Education, Lahore v. Ala-ud-Din and another (1972 SCMR 13), Muhammad Zahur Nasir v. Vice-Chancellor, University of Punjab and 2 others (PLD 1986 Lahore 53), Vice-Chancellor, University of Punjab and 2 others v. Muhammad Zahur Nasir (1985 SCMR 802) and Shaukat Ali v. Controller of Examinations University of the Punjab and another (1981 SCMR 364).
10. The next limb of his arguments was that statements of witnesses not examined in the presence of the candidate to be excluded from consideration. He in this behalf has referred to Malik Abdul Majid v. Disciplinary Committee of the University of the Punjab, Lahore and another (PLD 1970 Lah.
416= 1984 SCMR 1302). The next argument was that University or Board were not required to observe formalities of judicial trials. He in this behalf referred to Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another (PLD 1971 SC 838), Ahmad and 3 others v. Vice-Chancellor, University of Engineering and Technology and another (PLD 1981 SC 464), Shaukat Ali v. The Controller of Examinations, University of the Punjab, Lahore and another (1981 SCMR 364), Masood Perviz v. The Disciplinary Committee, University of the Punjab, Lahore and 2 others (1982 SCMR 1084), Board of Intermediate and Secondary Education and others v. Abdul Majid (1988 SCMR 329), University of Ceylon v. Fernando (1960) 1 All E.R. 631) and T.A. Miller Ltd. v.
Minister of Housing and Local Government and another (1968) 2 All E.R. 633).
11. Ch. Ijaz Ahmad, Advocate argued that to prove the misconduct of a student whether in the examination or on the campus direct evidence is not required unlike criminal and civil cases but circumstantial evidence would furnish valid basis for action by the educational institution. In this behalf, he referred to Zafarullah v. Board of Intermediate and Secondary Education, Lahore and others (PLD 1981 Lahore 244 = 1982 SCMR 571) and Akhtar Ali (supra). It was argued that the educational institutions are under legal obligation to afford opportunity of hearing to the student before proceeding to punish him for misconduct. In this behalf, reference was made to Khalid Farooq v. Principal of Government College, Sahiwal and another (1968 SCMR 1167), Principal, Nishter Medical College, Multan v. Muhammad Iqbal Khan Niazi and 2 others (1979 SCMR 604), Muhammad Mohsin Haidry v. Government of Sindh (PLD 1978 Kar. 621) and Ali Irtaza (supra).
12. The learned counsel for the petitioner while summing up the arguments submitted that neither there was any evidence on record nor the petitioner was allowed to cross-examine the witnesses.
13. I have given my anxious consideration to the arguments advanced on behalf of both the sides as well as by learned amicus curiae. The main argument advanced on behalf of the petitioner was that neither any show-cause notice was issued nor he was granted hearing, therefore, the impugned order of compulsory migration was illegal and liable to be quashed. The perusal of the record showed that notice was issued to the petitioner and he proceeded to submit his explanation, which is dated 12-3-1996. This is besides his confessional statement dated 4-3-1996. It is clear even from the second statement which is owned by the petitioner that he and Imran Iftikhar both hail from Kamokey and knew each other. He has emphasised his devotion to the studies but his result of December Test and presence in the classes falsify his claim as he in the December test out of 100 marks each had secured 4 in Chemistry, 20 in Physics and 5 in Biology while according to the attendance register his total attendance came to 224 out of 475 lectures. It meant that he only attended 47.15% lectures whereas the requirement is 75%. The Disciplinary Committee made its recommendation and the matter was placed before the College Council, which sent for the petitioner as well as his father. Both of them appeared firstly on 25-4-1996 but as the others were absent, therefore, the matter was not finalized and was adjourned to 7-5-1996.
Both of them again appeared. They were heard. This was sufficient compliance with the principles of natural justice. I am fortified in my view by the passage of Introduction of Administrative Law by David Foulkes, as reproduced above and the case of Ali Mir (supra) referred to by the amicus curiae.
14. Now coming to the proof of the guilt of the misconduct of the petitioner suffice it is to record here that Imran Iftikhar got the admission in the hostel in the name of Adeel Abbas and he was not student of Government College. The petitioner has admitted his previous acquaintance with Imran Iftikhar, therefore, it is not possible to accept his explanation that he was under the impression that Imran Iftikhar was student of Government College. Assuming that this was correct but he was allowed admission to the hostel as Adeel Abbas whereas his name was known to the petitioner much before his admission. Ch. Ijaz Ahmad, Advocate rightly referred to the cases of Akhtar Ali, Zakir Ahmad (supra) and judgment of the Court as well as of Supreme Court in the case of Zafarullah (supra) to argue that circumstantial evidence would be sufficient to prove the misconduct. In this behalf, the relevant portion of the judgment in the case of Zakir Ahmad (supra) reads as under:- "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 given 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 end 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."
' This view was further approved in the judgment of Shaukat Ali. The relevant portion reads as under:- " .It is nobody's case that the Committee had examined any witnesses in support of the charges levelled against the appellant, but the same was not essential in the light of the view taken in that behalf in the above judgment of this Court in which it was further held:-- ' The necessity of maintaining discipline in educational institutions or other institutions or Departments where the maintenance of discipline is essential for the orderly conduct of the institution or Department concerned,' is essential, and further that 'nor are we unmindful of the fact that persons incharge particularly of educational institutions must be given the fullest authority to correct those placed in their charge in the same manner as a parent or guardian would be able to do.' So long as the said persons act in a manner ' which includes every reasonable possibility of unfair action being taken' ."
' Now on a first impression, this principle might seem to be rather harsh, but on a closer examination it should be easy enough to comprehend its innate wisdom. As observed in the above judgment of this Court, the persons incharge of the educational institutions must be given the fullest authority vis-a-vis their students in the same manner as a parent or guardian. From this it would follow that in a case of the present nature the presumption would be that the student had indeed been proceeded against properly and without any malice, unless, of course, he would be able to discharge the said initial presumption operating against him by producing some evidence to the effect that the action initiated against him was based on mala fides. If in a given case the student is found to have succeeded in that behalf only then the burden would shift to the authorities to establish the charge against the student on the basis of evidence, which must be recorded in his presence and he afforded an opportunity to cross-examine the witnesses, as well as to produce his own evidence in rebuttal. In other words, in the absence of any evidence to show that the action initiated against a student is based on mala fides, it would be quite proper for the authorities, provided they afford a fair opportunity to him to correct or contradict any relevant statement prejudicial to his interest, to proceed against him for the violation of any rules, and in that behalf the authorities would be under no compulsion to formally charge-sheet him to examine the witnesses in his presence or to afford him the facility of cross-examining any witness."
15. The whole position as to principles of natural justice can be sumed up in the words of Lord Show of Dunfermline as appearing in, case of University of Ceylon v. Fernando (1960) 1 All. ER 630)," just ends by just means." It must be master of its own procedure in absence of statutory rules as the application of principle of natural justice cannot be made applicable universally alike in all situations. In this behalf, reference can be made to judgment of Supreme Court in the case of Zakir Ahmad (supra) and Muhammad Farooq Asghar v. Federation of Pakistan and 4 others (PLD 1991 Lah. 321).
16. This is not all. In this case the College Authorities reported the matter to the police, which proceeded to register case F.I.R. No, 41/96 under section 419/420, P.P.C. Against Imran Iftikhar and petitioner. I.O. Appeared in this Court on 21-5-1996 and stated that after investigation the allegations were proved against the accused and he has submitted the final report under section 173, Cr.P.C.
17. Now coming to the competency of the writ petition. The sum and substance of the text books and case-law referred to by Ch. Ijaz Ahmad, Advocate would show that following rules govern the disciplinary proceedings against a student; ' Firstly, that there should be no motive; ' Secondly, that procedure if provided should be followed; ' Thirdly, that in the absence of statutory rules the principles of natural justice should be followed; and ' Fourthly, that there is no scope for interference in Constitutional jurisdiction in the internal management of educational institute in the absence of procedural rules and mala fide.
' The petitioner has failed to prove mala fide even prima facie and there being no statutory procedural rules, therefore, the writ petition is not competent.
18. This is not all. I heard the father of the petitioner also as he was present on 21-5-4996 and 23-5- 1996. He was clearly aggrieved of the actions of the respondents especially the registration of criminal case and expressed his complete dissatisfaction as to the atmosphere in the College. On the other hand, respondent No,2 pointed out that besides this case there was another case of misconduct against the petitioner as some objectional item was recovered from his Almirah in the presence of the witnesses but keeping in view his future the authorities did not proceed with the matter. All these facts go a long way to show that now it is in nobody's interest to allow the petitioner to continue on the campous of respondent No,1. This would be another reason to refuse issuance of writ.
19. In the end I would like to pause for a moment and make following suggestions, which have come to my mind after hearing the arguments in this case, for betterment of future generations:
(i) that the educational institutions while forwarding the result to the father/guardian of the student shall also indicate the number of lectures attended by the student. This would show the interest of the student in studies and facilities the remedial measures by the father/guardian;
(ii) that the admission to the hostel should not be processed by the Superintendent directly but it should be routed through the office of the College;
(iii) it was noted in this case that although the petitioner has 47.15% attendance to his credit as against requirement of 75% yet he was allowed to take 1st Year Examination, which was held by Board of Secondary Education for the first time. Now as the Board is to take both the examinations, therefore, the requirement of attendance should remain 75% each year; and
(iv) that respondent No,1 has been made an autonomous body and if the purpose is to raise the standard of education then the 'Self-financing Scheme' should be kept out of its campous.
' The office is directed to send copy of the judgment to the Secretary Education, Government of the Punjab and Vice-Chancellor, University of the Punjab for necessary follow up.
20. Before parting with the judgment I would be failing in my duty if the assistance rendered by Ch. Ijaz Ahmad, Advocate as amicus curaie to clearly understand the parameters of the disciplinary action by the educational institutions is not acknowledged.
21. The upshot of the above discussion is that there is no merit in this writ petition. The same is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.