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(2) CONTROLLER OF EXAMINATIONS, KARACHI NIVERSITY-Respondents

Civil Appeal No. K-31 of 1965, decided on 14th March 1966.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 26th Febru ary 1965, in Writ Petition No. 863 of 1964).

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----Leave to appeal to Supreme Court-Granted to consider, whether, on princi ples of natural justice, petitioner (being an examinee at a University, disqualified for two years from taking examinations for having allegedly used unfair means) was entitled to a show-cause notice before infliction of disqualification.

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---Art. 98-Administrative Tribunal empowered to take decisions after ex post facto investiga tion-Show-cause notice necessary in absence of provisions, in enact ment giving such power, dispensing with such notice--Natural justice-Maxim: audi alteram partem (no one can be condemned unheard)--University of Karachi Regulation No. 14-Examinee disqualified for two years without being informed of any "charge" or "evidence by which it was supported"-Order of disqualification quashed.

The maxim audi alteram partem ("no one can be condemned unheard") embodies one of the settled principles of law, and such a principle will be read into the relevant law, unless its application is excluded by express words. A duty is cast on every administrative Tribunal to act fairly and justly and with due regard to the prin ciples of natural justice, unless specifically exempted from such a limitation. Mere omission from the relevant law, of a provision for notice, would not affect this position.

Where a University examinee was disqualified for two years (for having allegedly used unfair means at the examination, and he was not informed of any charge or evidence by which it was supported, while he was all the time protesting against what were ex parte proceedings against him, the order passed by the Univer sity was held to be "unsustainable in law" and quashed.

There was nothing in Regulation 14, or in the Karachi Univer sity Ordinance, which could lend support to the argument that the principles of natural justice were excluded, in all disciplinary pro ceedings, started by the University authorities, against students. It is clear, on the facts, that the principle of audi alteram partem had been contravened by the University authorities in this case, to the prejudice of the appellant.

The University appeared to have regarded as conclusive the opinion of the Examiner that he had reason to believe that one of the two candidates, having seats Nos. 90 and 91, had copied, one from the other "most probably No. 91 from No. 90" (the disquali fied candidate). This inference appeared evident to the Examiner, if the answer books of the two candidates were compared line by line, as they had committed "exactly the same mistakes and omissions". This opinion was, by no means, conclusive. University authorities ignored the possibility that the candidate with seat No. 91 might have copied from the answer book of the appellant, who had seat No. 90, without his knowledge or connivance.

The University of Dacca v. Zakir Ahmad P L D 1965 S C 90; Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak P L D 1959 S C (Pak.) 45; Messrs Faridsons Ltd. v. The Government of Pakistan and another P L D 1961 S C 537 and Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar P L D 1964 S C 461 ref.

Talmiz S. Burney, Advocate Supreme Court, instructed by A. Aziz M. Dastgir, Attorney for Appellant.

Ali Ahmad Fazeel, Senior Advocate Supreme Court (Muhammad Arif, Advocate Supreme Court, with him) instructed by V. A. Kidwai, Attorney for Respondents.

Date of hearing: 14^th March 1966.

.-The appellant, Abdus Saboor Khan, was a student of the N. E. D. Government Engineering College. He appeared in his Electrical Engineering B. E. III year Examination, held by the Karachi University in May 1964, his seat No. being 90. The University declared the result of this Examination on the 2nd of September 1964, but the result of the appellant was with held. On making enquiries from the University, he understood that a complaint had been made by some Examiner, against him, of using unfair means in the examination. He then sent a repre sentation to the University authorities, on the 29^th of September 1964, in which he reminded them that he had passed the Matri culation, Intermediate and his Engineering Examinations in the First Division and was known to be a regular, honest and punctual student. He also stated that the seating arrangements in the Examination Hall would make it clear that the Invigilator was sitting only about a foot from his seat and that he had never been outside the Examination Hall during the relevant time. He sub mitted these facts, so that he "may not be deprived of the right of explaining the true facts of the matter", if the presumption of the Examiner had been correctly conveyed to him. The University authorities did not care to send him a reply. On the 12^th of November 1964, a Disqualification Circular was issued by the University which appears at p. 46 et seq of the record. This showed, inter alia, that Abdus Saboor Khan had been debarred from appearing at any Examination of the University and from admission to any class in the University or affiliated colleges, for a period of two years (1965-66). The appellant then sent another representation to the University authorities, on the 31st of Novem ber 1964. In this document, he expressed surprise at having received the Disqualification Circular. He pointed out that the Circular was silent in respect of the details of the matter and expressly requested for information as to the type of the unfair means presumed to have been used by him during the examination of 1964, or the precise nature of the charge against him. He also wanted rules to be cited under which punishment had been inflicted on him and sought details of the particular subject in respect of which he had been penalized. This representation too evoked -no response from the University and the appellant then challenged the orders of the University authorities, by a petition for a writ, in the High Court of West Pakistan. After sending for a report from the University, the High Court dismissed the petition. Special leave to appeal was granted to the appellant by this Court to consider the question whether the petitioner was, on principles of A natural justice, entitled to a show-cause notice before the infliction of the impugned penalty or not.

The Bench of two learned Judges, who heard the petition in the High Court, recorded a brief order in which it was said that, in view of the report submitted by the University, the action taken against the petitioner was not arbitrary. The action had been taken under the rules, on a report from the Unfair Means Committee, by the Syndicate of the University. The rules did not provide for a notice. The learned Judges, therefore, felt that the matter was not one, in which exercise of their jurisdiction under Article 98 of the Constitution, was called for.

It is clear that, at no stage of the proceedings in the Univer sity, the appellant was called upon to show cause against the action proposed to be taken, in respect of his alleged use of unfair means in the examination. He was never furnished any details of the precise allegations against him. This is surprising in the face of repeated representations by the appellant, calling for all relevant information. The University appears to have regarded as conclu sive the opinion of the Examiner that he had reason to believe that one of the two candidates, having seats Nos. 90 and 91, had copied, one from the other "most probably No. 91 from No. 90". This inference appeared evident to the Examiner, if the answer books of the two candidates were compared line by line, as they had committed "exactly the same mistakes and omissions". Apart from the fact that this opinion was, by no means, conclusive, it is regretable to note that the University authorities ignored the possibility that the candidate with seat No. 91 might have copied from the answer book of the appellant, who had seat No. 90, without his knowledge or connivance. As was pointed out in the ad interim order of this Court, dated the 3rd June 1965 (by which the appellant was directed to be admitted provisionally to the next higher class, subject to the result of this appeal) on a general examination of the two answer books, certain marked differences also appear, so that the conclusion drawn by the University autho rities did not necessarily follow, immediately. In the circumstances, this was not a case which could be described as concluded by unimpeachable findings of fact.

The principle governing such cases was laid down by this Court in the case of The University of Dacca v. Zakir Ahmad (P L D 1965 S C 90). It was observed therein that "whenever any person, or body of persons, is empowered to take decisions, after ex post facto investigation into facts which will result in consequences effecting the person, property or other right of another person, then, in the absence of any express words in the enactment giving such power, excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with a duty to act in accordance with such prin ciples of natural justice as may be applicable in the facts and circumstances of a given case". This is the principle embodied in the maxim audi alteram partem and has been applied by this Court in other cases where orders passed by administrative tribunals or authorities, affecting the rights of citizens, in point of property, or other rights, had been passed, without giving an opportunity for defence to the person concerned. "No one can be condemned unheard", is one of the settled principles of law, and such a prin ciple will be read into the relevant law, unless its application excluded by express words. A duty is cast on every administrative " Tribunal to act fairly and justly and with due regard to the principles of natural justice, unless specifically exempted from such a limitation. Mere omission from the relevant law, of a provision) for notice, would not affect this position. Reference in this connec tion may be made to the cases, reported as Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), Messrs Faridsons Ltd. v. The Government of Pakistan and another (P L D 1961 S C 537) and Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar (P L D 1964 S C 461).

The University purports to have taken action in this case under Regulation No. 14 of the Karachi University Code. There is nothing in that Regulation, or in the Karachi University Q Ordinance, which could lend support to the argument that the principles of natural justice were excluded, in all disciplinary pro ceedings, started by the University authorities, against students. It is clear, on the facts, that the principle of audi alteram partem had been contravened by the University authorities in this case, to the prejudice of the appellant, whose previous academic record seems to have been quite inconsistent with the allegations made against him. It was a very serious matter disqualifying him from appearing in any University examination, or joining any University class or college, for a period of two years. The stigma thus attached to his character, might dog his footsteps all his life. Before such a drastic step was taken, it was incumbent upon the University authorities to give an opportunity of showing cause against the proposed action, to the appellant and to afford him a fair opportunity of defence. The suggestion of Mr. Fazeel, who appeared on behalf of the University authorities, that the appellant was afforded such an opportunity, in so far as he had actually made two representations to the University, is devoid of all subs tance, as the appellant was all the time protesting against what were ex parte proceedings against him, taking without informing' him of any charge or the evidence by which it was supported. He C had, therefore, no means of controverting the assumption made by the University authorities.

The result is that the order passed by the University is not sustainable in law. We hereby allow the appeal and quash the order, passed by the University. The appellant will have his costs in this Court and the Court below.

A. H. Order quashed.

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