1. KHILJI ARIF HUSSAIN, J.---The petitioner filed this petition against the order dated 4-4-2003, whereby the petitioner has been expelled for three years from IBA. Brief facts of the case are that the petitioner is a student of Institute of Business Administration (IBA') in MBA 4/1 Morning Campus. It is stated in the memo. Of petition that the petitioner secured Grade A-1 in her SSC examination, Grade A in HCA examination and secured Grade Average 3.5 in BBA Hon, from the respondent institute. The petitioner thereafter admitted in MBA 3 where she secured GPA 3.83. The petitioner appeared in MBA 4/A examination when she was caught of using unfair means in third hours examination and was expelled from IBA for three hours and her MBA-3 & 4 results in all subjects were cancelled for using unfair means. By this petition the petitioner impugned the said order. Heard Mr.M. Saleem Sammo alongwith Mr.Ghulam Qadir Jatoi, learned counsel for the petitioner, Mr. Ch. Muhammad Jamil, learned counsel for respondent No,2 and Mr.Abbas Ali, Additional Advocate-General, Sindh, for respondent No,1 . Mr. Muhammad Saleem Sammoo, the learned counsel for the petitioner, argued that the petitioner is a brilliant student and secured A grade throughout her career. The learned counsel, while denying the allegation of using unfair means, argued that under the similar circumstances the respondent No,2 has awarded lesser punishment to other students. In support of his arguments the learned counsel relied upon the statement annexed with the plaint. He argued that Rehan Umar, Aamir, Hamza Jamali, Ali Munir, Umar Mehtab, Muhammad Ali Mirza, Faisal Anwar were awarded punishment, debarring them from one semester only for using unfair means.
2. The learned counsel argued at length that the respondent institute was established under Ordinance No,VII of 1994 and since then the said Ordinance was never placed before the Provincial Assembly and as such the same stands repealed or expelled for three months from the date of promulgation of the Ordinance. The learned counsel further argued that after lapse of the said Ordinance the respondent No,2 governs by the University of Karachi Act, 1972 and in terms of the said Act the respondent No,2 has no lawful authority to pass the impugned order expelling the petitioner. The learned counsel for the petitioner argued that the order expelling the petitioner was passed without serving any show-cause notice upon the petitioner and without providing an opportunity to the petitioner to meet the allegation levelled against her liable to be struck down. In support of contention that order of expelling the petitioner was passed without serving show- cause notice, the learned Advocate relied upon the cases of Muhammad Shafique v. The State (PLD 1977 SC (AJ&K) 1), Khan Baig v. The State (1999 M LD 2168), Surah Al-Baqrah A'yat No,172 and Surah Al-Ana'm A'yat Nos.119 and 145. The learned Advocate also relied upon some decisions given by Hazrat Abu Bakr Siddique (R.A.), Hazrat Umar (R.A.) and Hazrat Ali (R.A.) to explain coercion or compulsion. On the other hand, Mr. Ch. Muhammad Jamil, learned counsel for respondent No,2 in reply to the objection of the learned counsel for the petitioner, drew our attention to Act XX of 1994 whereby Ordinance No,VII of 1994 has been converted into Act by the Sindh Assembly. The learned counsel further argued that the respondent No,2 has acted as a body within the parameters of the said Act. As regards the objection of the learned counsel for the petitioner about the show-cause notice the learned Advocate for the respondent drew our attention to Examination Rules & General Instructions dated 19-3-2002 whereby respondent No,2 advised the students to carefully read the rules in respect of three hours examination starting on 3-4-2003. The said rule provided that IBA Board of Governors has decided that any student found guilty using cheating/unfair means in examination shall be immediately expelled from the Institute and not be eligible for re-admission. The learned counsel further drew our attention that from time to time the respondent No,2 had issued instructions and gave warning to the students that in case any student is found guilty of cheating/using unfair means in the examination, he/she can be expelled front the Institution and in this regard the respondent filed various notices issued by the respondent. From time to time. In the counter-affidavit, the respondent No,2 stated that the petitioner was aware about the decision of the Board of Governors dated 18-8-2001 and was also aware of the reminders dated 19- 12-2002 issued to all students, whereby students were reminded in their own interest that use of unfair means during the examination shall not be tolerated. Any student, if found guilty or cheating during the examination, shall be immediately expelled from IBA. The learned counsel next argued that the petitioner was caught red-handed by Mr. Manoj Babulal. Incharge of DPO, with IEO cheating note on petitioner's lap/leg. The incident was witnessed by - Mst.Huma Amir, Instructor as well as Mst.Shama, Invigilator. He also argued that the petitioner herself admitted in writing about the incident. Along with counter affidavit the respondent filed photocopy of answer book, cheating material and statement of the petitioner. The respondent also filed affidavit of Mst.Shama Ahmed, Huma Amir and Babulal who were on duty in the examination hall at the time of incident and witnessed the same. In the said affidavit they all stated that cheating material was recovered from the petitioner. Alongwith counter-affidavit, Mr. Inayat. Associate Professor, Chairman of Disciplinary Committee also filed affidavit and in the said affidavit he stated that the petitioner gave her statement accepting her act of bringing material for the purpose of cheating and confessed the same.
3. We have gone through the record and also taken into consideration the arguments advanced by the learned counsel and are constrained to observe that this is the high time when step must be taken so as to improve the educational standard in our society. The students, who are using unfair means, should not be allowed to go with their illegal acts at the cost of the other students, who follow the rules and workhard because in our opinion this amounts to depriving the students following the rules of the Institute from their right. We have also gone through the A'yat quoted by the learned Advocate and with great respect we find that none of these A'Yat, relied upon by the learned counsel, has any bearing on the issues in the matter, likewise the different decisions taken by Hazrat Abu Bakr Siddique (R.A.), Hazrat Umar (R.A.) and Hazrat Ali (R.A.) also have no relevance. As regards the case of Muhammad Shafique (supra) and Khan Baig (supra). While deciding criminal appeal and criminal revision, Hor`ble Court held that under section 342, Cr.P.0 incriminating evidence, which comes on record against accused, is to put to him for the purpose of enabling the accused to explain the same also have no bearing to facts of this case.
4. Now adverting towards an important aspect of the case, namely, that the petitioner has not been provided opportunity of hearing, we would like to say that the general rule of opportunity of hearing which normally reads as a part of all statutes and whenever any action is to be taken, which may effect the interest of any person, it is expected that a fair opportunity of hearing should be provided to the party who may effect from the result the said decision cannot strictly attract in the matter pertaining to students and teachers. The relationship between student and teacher is a very delicate relationship based upon the trust and respect. The teachers are supposed to act as parents and to guide the students to improve their character for good society while providing them best possible education so as meet challenges in future. Likewise the students are also expected to pay respect to their teachers and follow the instructions issued by the Institution from time to time.
5. In the instant case, the petitioner was caught red-handed with the cheating material. She admitted the fact of having cheating material with her in her own writing. The decision for expulsion was taken by the Disciplinary Committee consisting of three members and approved by the Directors of the respondents No,2 on the same day when, incident took place. Our view finds support from the case of C.R. Rao v. Registrar Andhra University (AIR 1972 AP 127), where the Hon'ble Court held as under: The criterion to be applied by Courts in case of this description is whether the cardinal of essential requirements of natural justice have not been met by the procedure adopted in the particular case. The result of this inquiry depends to a great extent on the facts and circumstances of the case in point, the Constitution of the Tribunal and the rules under which it functions. No rule has been brought to our notice, which imposes the obligation of granting a further opportunity even if the examinee has accepted his mil-practice at the examination. The Tribunal that decided the question is an academic body consisting of persons of standing integrity, experience and an insight into the problems of academic bodies. The circumstances establish that on his own unqualified, admission the appellant was guilty of a mal-practice, indulged in by him in spite of warnings. (We are consequently of opinion that) there is no breach of the standards of natural justice and the appellant had fair and reasonable opportunity of stating his case."
6. The requirements of natural justice depends upon the circumstances of the matter, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with and set forth. The need for show-cause notice, oral or otherwise examination of witnesses also depends on the facts and circumstances of each case. The petitioner was caught red-handed with cheating material and admitted the same in her own handwriting. The respondent No,2 passed order expelling the student from the university. The petitioner neither produced any material to show that respondents have some bias against the petitioner or acted against rules or regulations of the Institution while passing the order nor alleged any specific allegation of mala fides against the respondent Committee who passed the order. In the case of Karnatake Public Service Commission and Others v. B.M. Vijaya Shankar (AIR 1992 SC 952), the Hon'ble Supreme Court of India held as under:
4. Was natural justice violated? Natural justice is a concept, which has succeeded in keeping the arbitrary action within limits and preserving the rule of law. But with all the religious rigidity with which it should be observed, since it is ultimately weighed in balance of fairness. The Courts have been circumspect in extending it to situations where it would cause more injustice than justice.
7. Even thought the procedure of affording hearing is as important as decision on merits yet urgency of the matter, or public interest at times require flexibility in application of the rule as the circumstances of the case and the nature of the matter required to be dealt may serve interest of justice better by denying opportunity of hearing and permitting the person concerned to challenge the order itself on merits not for lack of hearing to establish bona fide or innocence but for being otherwise arbitrary of against rules. Present is a case which, in our opinion, can safely be placed in a category where natural justice before taking any action stood excluded as it did not involve any misconduct or punishment.
5. Competitive examinations are required to be conducted by the Commission for Public Service in strict secrecy to get the best brain. Public interest requires no compromise on it, any violation of it should be visited strictly. Absence of any expectation of hearing in matters which do not effect any interest and call for immediate action, such as the present one, where it would have delayed declaration of list of other candidate which would have been more unfair and unjust are rare but well recognized exceptions to the rule of natural justice. It cannot be equated with where a student is found copying in the examination or an inference arises against him for copying due to similarity in answers of number of other candidates or he is charged with misconduct or misbehaviour. We would like to reproduce a passage from the judgment of Shaukat Ali v. Controller of Examinations (1981 SCM R 364). Where the Hon'ble Supreme Court held as under: It is no body'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 in charge 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 at 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 in charge 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 r to examine the witnesses in his presence or to afford him the facility of cross-examining any witness." Mr. Ch. Muhammad Jamil, the learned counsel for the respondent, in support of his contentions that petition is not maintainable against respondent, has relied upon the case of Qamar-ul-Islam v. The Institute (1993 M LD 1362), wherein the Hon'ble Court held as under: "Mr. All Ahmed Tariq has pointed out that according to section 3 of Ordinance X of 1961, the respondent-Institute has been constituted as a body corporate by the name of Institution of Chartered Accountants of Pakistan. Referring to the primary test laid down by the Supreme Court of Pakistan in the above case for determination of the question, whether the person is amenable to writ jurisdiction of this Court, the learned counsel has argued that by virtue of section 9 of Ordinance X of 1961 the control and management of the respondent does not vest in the Government but the same vests in the Council constituted under the said Ordinance. The teamed counsel has also referred to section 17 of the Ordinance, which indicates that there shall be established a fund under the management and control of the Council into which shall be paid all monies received by the Institution and out of which shall be met all expenses and liabilities properly incurred by the Institution. Consequently, according to the learned counsel, none of the tests, laid down by the above judgment of the Supreme Court appears to have been fulfilled in the present case. Therefore, the respondent is not a person performing functions in connection with the affairs of the State, and as such this petition is not maintainable. Although we are fully inclined to agree with Mr.Ali Ahmed Tariq in this regard, but we also find that the petitioner has no case even on merits."
8. For the foregoing reasons we are of the view that the petitioner has failed to point out that respondent while passing the order acted against rules and regulations of the Institution, the petition is, therefore, dismissed in limine. However, we expect that the respondent may reconsider the case of the petitioner and award punishment as they may deem fit, but keeping in view the past academic record of the petitioner and also action taken under similar circumstances with other students.