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Before Aftab Farrukh, J
ZAFARULLAH-Petitioner
versus
BOARD OF INTERMEDIATE AND SECONDARY
EDUCATION, LAHORE ETc.-Respondents
Writ Petition No. 9061 of 1980, decided on 14th October, 1980.
(a) Constitution of Pakistan (1973)--
Art. 199-Writ petition, maintainability of-Student petitioner's case finding him guilty of adopting unfair means at examination under consideration on appeal before Appellate Committee-Writ petition against order holding him guilty nevertheless, held, maintain able.-[Educational Institutions].
Anjuman-e-Ahmadiya v. Deputy Commissioner, Sargodha P L D 1966 S C 639 ; Lt.-Col. Nawabzada Muhammad Amir Khan's case P L D 1961 S C 119 and Salahuddin's case P L D 1975 S C 244 ref.
(b) Calendar of Board of Intermediate & Secondary Education (Lahore)-
-- R. 6(8)-Annulment of examination result-Powers of Board Result of examination notified in Gazette-Held, can be annulled by Board if candidate disqualified for using unfair means-[Ghulam Haider's case P L D 1971 Lah. 952 dissented from].
Rahat Siddiqui's case P L D 1975 Lah. 257 and Rahat Siddiqui v. Board of Intermediate & Secondary Education, Lahore and another 1977 S C M R 213 rel.
Ghulam Haider's case P L D 1971 Lah. 952 dissented from.
(c) Calendar of Board of Intermediate & Secondary Education (Lahore)--
-- R. 6(8) (17) read with Constitution of Pakistan (1973), Art. 199 Writ proceedings-Objections relating to constitution and validity of special Discipline Committee neither taken in writ petition nor raised before Discipline Committee or Appellate Committee, held, cannot be permitted to be raised at argument stage of writ petition Petitioner having acquiesced in jurisdiction of Discipline Committee by not raising such objection at, time of appearing before it, cannot be permitted to raise such objection on such further ground as well Constitution of Pakistan (1973), Art. 199.
(d) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)-
-- S. 14(6)-Calendar of Board of Intermediate and Secondary Education (Lahore), r. 6(17) (i) and Constitution of Pakistan (1973), Art. 199-Maxim : Expressio unius exclusio alterius (mention of one is exclusion of another)-Discipline Committee-Objection as to constitution of-Maxim : Expressio unius exclusio alterius-Not a rule of universal application-Objection regarding constitution of Discipline Committee and legality of action taken by such Coa:mittee-To be examined in detail in context of facts of case and relevant rules governing formation of such Committee-Appointment of Discipline Committee having been made by Chairman and approved by Board, Committee, held, validly constituted-Nomenclature of Com-' mittee either as Discipline Committee or Special Discipline Committee- Makes no difference,-Provision as to Committee having to comprise two members-Merely directory and not- mandatory-No prejudice having been caused to petitioner, by appointment of three members instead. of two and petitioner on other hand having been put to advantage, objection regarding constitution of Committee and validity of proceedings, before it, held, without substance in circumstances. [Maxim-Discipline Committee].
Chairman, Evacuee Trust f roperty Board, West Pakistan, Lahore v. Muhammad Din and another P L D 1971 Lah. 217 ; Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Limited P L D 1965 Lah. 82 ; E. A. Evans's case P L D 1964 S C 536 ; Khawaja Nazir Ahmad's case A I R 1936 P C 253 ; Lt. Col. G. L. Battacharya v. The State etc. P L D 1964 S C 503 ; Khushiram Atmaram Jaisinghari's case P L D 1965 S C 453 ; Mushtaq Ahmad etc. v. The State P L D 1978 Lah. 507 ; Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others P L D 1961 S C 119 ; Broom's Legal Maxim Edn., p. 586 ; Craies on Statute Law ; Sutlej Cotton Mills Ltd., Okara v. Industrial Court, West Pakistan, Lahore and another P L D 1966 S C 477 ; Niaz Muhammad Khan's case P L D' 1974 S C 134 and Khaista Muhammad's case P L D 1978 S C (A J & K) 118 ref.
(e) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)-
-- S. 14(6) read with Calendar of Board of Intermediate and Secondary Education (Lahore), r. 6(17) (i) - Discipline Committee - Inquiry, nature of-Proceedings before Discipline Committee or Domestic Tribunals-Principles of natural justice, in absence of any express words to contrary applicable to such proceedings-Discipline Com mittee or Domestic Tribunal however, not required to treat matter as a trial or to examine witnesses in presence of accused or give him facility of cross-examination of witnesses or even to serve a formal charge-sheet upon accused-Discipline Committee or Domestic Tribunal can obtain information in any way it thinks fit-Committee or tribunal however, to afford fair and reasonable opportunity to affected person to correct, contradict or explain any relevant statement, documents or circumstance sought to be taken into consideration against him Findings of fact, in absence of any tangible proof of Committee or domestic having any prejudice against accused, held, rest exclusively in ultimate judgment of Committee or Tribunal.-[Domestic Tribunal Discipline Committee]:
University of Dacca v. Zakir Ahmad P L D 1965 S C 90 ; Samar Parvez's case P L D 1971 S C 838 ; Rahat.Siddiqui's case 1977 S C M R 210 and Sbaukat Ali's case 1981 S C M R 365 ref.
(f ) Calendar of Board of Intermediate and Secondary Education (Lahore)--
-- R. 6(8) - Amendment of examination result - Circumstantial evidence-Petitioner earlier appearing at examination three times from Centre S and three times from Centre L and failing on all such occasions-Petitioner appearing for last time from Centre B, having no connection with such town, and obtaining 70 percent. marks- Such circumstance, held, by itself enough to establish charge of "unfair means".-[Evidence-Unfair means].
(g) Calendar of Board of Intermediate and Secondary Education (Lahore)-
- Rr. 6(8) & 6(17) (i)-Annulment of examination result-Inquiry, nature of-Question of affording opportunity to cross-examine witnesses arises. only in cases of -direct evidence but not in cases of circumstantial evidence-Evidence being of circumstantial nature giving of information to offender about circumstances appearing against him and affording him opportunity to explain such circumstances, held, sufficient.-[Witness-Evidence].
(h) Constitution of Pakistan (1973)-
Art. 199-Maxims : Fraus et jus num quam cohabitant (fraud and justice never dwell together) and Frau et doles nemini patroeenari debut (fraud and deceit ought not to benefit any one)-Writ jurisdic tion-Fraud vitiates most solemn proceedings-No- party can be allowed. to take advantage of his own fraud=Discretionary relief of High Court, as consistently, held, cannot,be granted to help retention of i 1-gotten gains even if Tribunars, ord&; for any technical reason, not justifiable.-[Fraud-Maxim].
Chief Settlement Commissioner, Lahore v,., Raja Muhammad Fazil Khan and others P L D 1975 S C 331 ref.
(i) Calendar of Board of Intermediate and Secondary Education (Lahore)-
R. 6(8)-Use of unfair means at examination-Annulment of result Charge against petitioner extremely serious and grave and found by Board to have been duly proved-Machinations of type indulged in by petitioner not only resulting in undue advantage to unscrupulous arid. undeserving candidates to exclusion of bona fide scholars but also bringing infamy and bad name to Boards and Universities and in ultimate analysis tarnishing image of country, a better' case of award of exemplary costs than one in such circumstances, held, could not be conceived-Petitioner ordered to pay costs of Rs. 2,000 to each respondent.-[Costs-'Unfair means].
Ch. Hamfd-ud-Din for Petitioner.
Khalil-ur-Rehman Khan for Respondent.
Dates of hearing : 5th, 6th, 7th and 8th October, 1980.
In the Gazette notification of the Board of Intermediate and Secondary Education, Lahore dated the 24th December, 1979, Zafar Ullah petitioner contrary to his 4past 9-year record of failure was declared to have secured 70 per cent marks in the Intermediate (Spring) Examination, 1979, which he took at Bhai Pheru Centre, District Lahore. .
2. Within 2 days' of the above said Gazette notification i.e. on the 26th December, -1979, the respondents issued revised Gazette notification wherein the petitioner was shown "R. L. U. M. C." i.e. to say Result later unfair means case, and accordingly charge-sheet (Annex. B) dated 3-1-1980 was issued to the petitioner. '
3. During the course of further scrutiny of the case it was found that not only had the petitioner used/substituted answer books but there bad been a scandalous bungling at the Bhai Pheru Centre. For the sake of a proper understanding of the background of the -case I reproduce the report and the suggestions mau:: therein, of the Deputy. Controller of Examinations which were agreed with and accepted by the Chairman of the Board
Thereafter, the second charge-sheet bearing No. 3253 S. C. 11, dated the 30th January, 1980 (Annexure-D was issued to the petitioner.
4. On the 17th January, 1980 the petitioner submitted a reply to the charge-sheet (Annexure C'), making out a case of bare denial.
5. The petitioner was then summoned and he personally appeared before the Discipline Committee (later termed as Special Discipline Committee), and at the time of his-personal appearance he was duly confronted by the Committee with all the 10 answer books and the other relevant record which fact is noted by the Committee in its order dated the 6th April, 1980 (Annexure H). The petitioner was also supplied a questionnaire to fill in, which he accordingly filled in and in answer to a question the petitioner wrote down.
The case of the respondents is that at the time of personal bearing on the 2nd February, 1980 the petitioner was called upon to show cause in respect of both the charge-sheets which had been served upon him earlier and he was confronted with all the record that was available and he did avail of the opportunity of showing cause against both the charge-sheets (the case of the petitioner is that he showed cause only against the first charge-sheet).
6. It will not be out of context to mention that since the reply of the petitioner to the second charge-sheet had not reached the respondents within the specific time, the respondent by his letter dated the 23rd of February, 1980 (Annexure G) drew the attention of the petitioner to the charge-sheet dated the 30tb January, 1980 (Annexure D) and finally warned him that in case he did not send a reply to the charge-sheet to the Controller of Examinations, by name under a registered cover on or before the 2nd March, 1980, the case will be decided ex parte, and no claim at a later stage on the part of the petitioner for not having been given a chance to defend himself, shall be entertained.
On receipt of the warning the petitioner submitted a written reply (Annexure R/1, produced in Court and the same is marked A. A.) dated the 13th of February, 1980. He repeated his stand taken earlier and affirmed that be had nothing afresh to add except that in case of any sufferings on account of delay in the issuance of provisional certificate, he reserved his rights to recover the damages etc. and it is subsequent to this that considering all the material available on the record and the circumstantial evidence the Committee met and by its decision dated the 6th April, 1980 recorded the findings of fact, which are quoted below :-
"19. Nature of the offence;
The candidate is alleged to have-----
Substituted the answer books and the additional answer books. The candidate was heard in person on 2-2-80. He denied the charge. He was examined in detail. His replies to the question put to him by the Committee are available at page 235 of the file. He was confronted with the ten answer books which are forged and were substituted for the genuine ones. He owned the scripts and confessed that these had been written in his own handwriting.
There is sufficient internal evidence to prove that all answer books are forged and have been substituted for the original ones. The Com mittee is convinced that he is guilty of the offence under rule 6.8 (vii) at page 166 of the Board's Calendar. He is thus disqualified from passing this examination and from appearing in the three immediately following examinations.
(Sd.) (Sd.) (Sd.)
Member of Special Member of Special Member of Special.
Discipline Commit- Discipline Commit Discipline Commit
tee (6-4-80). tee (6-4-80). tee (6-4-80).
The petitioner impugned the verdict before the Appellate Committee under rule 6.17 of the Board's Rules.
7. During the pendency of the said appeal before the Appellate Committee constituted under rule 6.17 of the Board Rules, the petitioner by way of this writ petition impugnes the decision of the Discipline Committee, maintaining that the proceedings before the Appellate Committee were sham proceedings and he had no hope of getting justice from the said Appellate Committee.
8. Granting the petitioner ad interim relief parawise comments of the' respondents were sought for and Mr. Khalil-ur-Rehman Khan. Advocate, appearing on behalf of the Board took a preliminary objection regarding the maintainability of the writ petition pending appeal of the petitioner before the Appellate Committee and I was disposed towards upholding the objection but the learned counsel for the petitioner vehemently argued for the mainte nance of the writ petition and supported his argument through the cases reported as Anjuman-e-Ahmadiya v. Deputy Commissioner. Sargodha. (P L D 1966 S C 639), Lt: Col. Nawabzada Muhammad Amir Khan's case (P L D 1961 S C 119) and Salahuddin's case (P L D 1975 S C 244). In this view of the matter the learned counsel for the respondents found it difficult to oppose the legal proposition regarding the maintainability of the writ petition, pending the disposal of appeal before the Appellate Committee.
9. Since the points of law, raised by the learned counsel for the petitioner are common to the several writ petitions pending before me and the learned counsel for the respondents has also put in appearance. I have converted the writ petition into a notice case and heard the learned counsel headed by Ch. Hamid-ud-Din, Advocate for the various petitioners and Mr. Khalil-ur Rebman Khan, Advocate for the respondents.
10. On behalf of the petitioner it has been argued--
(a) that rule 6.8 of the Board's Calendar cannot be invoked in the case of the petitioner as action against him was taken after the result of the petitioner had been notified ;
(b) that the Punjab Boards of Intermediate and Secondary Education Act, 1976 does not provide for the constitution of any such Committee, special or otherwise ; and that there is no provision for the constitution of a Special Discipline Committee during the course of the enquiry and before its conclusion, and that rule 6.17 of the Board's Calendar provides for appointment of a Committee comprising 2 members, therefore, the constitution of a Special Committee comprising 3 members and that too retrospectively is illegal ;
(c) that the two charge-sheets specifically required the petitioner to appear before one of the "Discipline Committee" and not the "Special Discipline Committee". Therefore, the Special Discipline Committee which has recorded the finding of fact against the petitioner was not a validly constituted Committee though it had ostensibly been formed, through the jurisdiction vested in the Chairman of the Board, according to Rules and Regulations published in the Board's Gazette, as Annexure K, substituting the words "Special Discipline Committee" for the words "Discipline Committee", could not be applicable retrospec tively;
(d) that the petitioner had been condemned unheard in relation to the charge-sheet dated the 30th January, 1980 ; and
(e) that there is no evidence against the petitioner nor was any produced before the Special Discipline Committee as to establish beyond reason able shadows of doubt the charge of substituting forged answer books.
11. Learned counsel for the petitioner has cited plenty of case-law to canvass the proposition that once the Board has notified the result, the respondents had no jurisdiction under rule 6.8 to recall or amend the same. I am not referring to any of the authorities cited at the bar except Rahat Siddiqi's case (P L D 1975 Lah. 257) as the same is directly on the point involved and answers Ghulam Haider's case (P L D 1971_Lah. 952) relied upon by the learned counsel for the petitioner.
The view taken in Rahat Saddiqi's case was also upheld by their Lordships of the Supreme Court in Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore and another 1977SCMR213.
It was only in Rahat Siddiqui's case the import and effect of the below quoted endorsement appearing on the result Gazettes was examined "The entry appearing in this notification does not in itself confer any right or privilege to a candidate for the grant of a certificate which will be issued under the Regulations on the basis of the original record in the Board's office."
It was held;
"The entries in the result gazette' are thus not clothed with unfettered sanctity . . . . . . . . In a case of the present nature the Board Authorities would be competent to initiate action under rule 8 even after the declaration of the result. Learned counsel while raising this argument also appears to have overlooked rule 18 under which the Board has the power to quash the result of a candidate after it has been declared if he has been disqualified for using unfair means in the examination'. Rule 18 has been couched in wide terms, and it cannot be attributed to the rule making authority that it was conscious of only one situation viz., where although a dis qualification order has been passed before declaration of the result by a competent authority, yet somehow or the other the result has been declared . . . . . . . If a person is disqualified from passing a particular examination, the question of declaration of his result in that event would not arise, and if the candidate can manoeuvre otherwise, such declaration of his result being void ab initio would be non-existent in the eyes of law, and any proceedings to quash the same would be unnecessary and futile. I am, therefore, of the opinion that even after the declaration of the result of the petitioner, it was competent for the Board Authorities to have initiated action against him under rule 8(iv)."
And when Rahat Siddiqi impugned the above-referred judgment in the Supreme Court of Pakistan, his appeal was dismissed and Salahuddin, J. with whom Muhammad Afzal Cheema and Durab Patel, JJ. agreed, observed as follows :-
"The learned Chief Justice of the High Court therefore, rightly observed that the entries in the Result Gazette are not clothed with unfettered sanctity. He further observed that the act of inducement mentioned in the rule was done at a time when the result had not been declared. Besides, if the interpretation sought to be put on the rule be accepted it will result in the candidate securing benefit from his own wrong, if somehow the wrong escaped the notice of the authorities before the result was declared. Such interpretation is neither reasonable nor appears to be the intention of the author of the rules. It could not be the intention of the author that the wrong committed by the candidate should go unpunished, if the result has already been declared. No such interpretation is spelt out in the rule. I, therefore,' agree with the interpretation put by the learned Chief Justice that the authorities were competent to take action under rule 8 of the Rules, supports this position for it empowers the Board to quash the result of a candidate after it has been declared if he has been disqualified for using unfair means in the examination.
Therefore, in view of the above interpretation I find no substance in[ the submission of the learned counsel for the petitioner that the result of the petitioner having been notified on the 24th December, 1979 the respondent sit were restrained from annuling the result.
12. While dealing with the argument regarding the Constitution and validity of the "Special Discipline Committee" and that too of its comprising 3 members, I would point out that the objection was not taken in the writ petition nor the petitioner took any objection to that effect when he appeared before the Committee, or when he appeared before the Appellate Committee and therefore, it is an open question whether he can be permitted to argue the same at this stage. The objection can also be brushed aside on the short ground that the petitioner has acquiesced to the jurisdiction of the Discipline Committee by not raising the above objection at the time of his appearance before the Committee. However, I consider it expedient in the interest of justice to examine the merit of the objection so raised.
13. In support of his contention the learned counsel for the petitioner has primarily based his submissions on the principle that where a power is given to do a certain thing in a certain manner, the thing must be done in that manner and other methods of performance are necessarily forbidden, (ex pressio unius exclusio alterius) and in this regard be has referred to Chairman, Evacuee Trust Property Board, West Pakistan, Lahore v. Muhammad Din and another (P L D 1971 Lab. 217), Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Limited (P L D 1965 Lab. 82), E. A. Evans's case (P L D 1964 S C 536 ) and Khawaja Nazir Ahmad's case (AIR 1936 P C 253). He has laid particular emphasis on the word prescribed' in section 2, clause (1) of the Punjab Boards of Intermediate and Secondary Education Act of 1976 where the word 'prescribed' is defined as " 'Prescribed' means prescribed by Regulations of Rules."
14. Expressio unius exclusio alterius is not a rule of universal application, as held by the Supreme Court in Lt. Col. G. L. Battacharya v. The State etc. (P L D 1964 S C 503) and Khushiram Atmaram Jaisinghari's case (P L D 1965 S C.453), and therefore, the merits of the objection regarding the Constitution of the committee and the legality of the action taken by it will have to be examined in detail in the context of the facts of the case and relevant rules governing the formation of such Committees .
15. The "Special Discipline Committee" was appointed by the Chairman in exercise of powers vesting in, him under section 14.6 which reads as under :-
"(6) In any emergency arising out of the administrative business of the Board and requiring, in the opinion of the Chairman, immediate action, the Chairman may take such action as may deem necessary and shall report the action so taken to the Board at its next meeting for approval."
And the appointment of this Committee was approved by the Board in its meeting held on the 15th March, 1980. The Constitution of such a Committee is thus approved by the Board, and the Committee was validly constituted. In Mushtaq Ahmad etc. v. The State (P L D 1978 Lab. 507) and Lt: Col. Nawabzadal Muhammad Amir Khan's case, the principle of ex post facto was recognized. A subsequent rectification would have a retrospective effect and is equivalent to a prior command and in this regard I would refer to Broom's Legal Maxim Edition at page 586.
16. Rule 6.17(i) of the above-referred Rules confers. power on the Chairman to appoint a Discipline Committee from time to time. Nomen clature of the Committee I.e. a "Discipline Committee" or a "Special Discipline Committee" would not make any difference as long as there is a power with the Chairman to appoint any such Committee. Reference to E the above-quoted rule makes it clear that the Chairman does have the power to appoint a Committee for such matter. The provision that the Committee is to comprise two members' in the rule is merely directory and not mandatory. Craies has discussed the distinction as follows : -
"When a statute is passed for the purpose of enabling something to be done and prescribe the formalities which are intended to perform those prescribed formalities which are essential to the validity of thing to be done or called imperative or absolute but those which are not essential and may be on record that in validating the things to be done are called mandatory and in Plunkett v. Mallay (1963) 8 I R Jur. (N S) 83 it was held that statutes are to be construed as mandatory and imperative when they prescribe Act to be done by providing opportunities, but are only directory when they require public officers to do the act, in which case the default or mistake of the officer will not destroy the rights of the party and it is a settled principle of interpretation that where possible, a construction should be adopted which would facilitate the smooth working of the scheme of legislation established by the Act-Thombs v. Rose (1968) 1 W R 1797."
The mere usage of the word "Discipline Committee" in the charge-sheet and later on describing the same as "Special Discipline Committee" doe not make any difference in law as long as "the Committee" whatever deno mination it may be given was otherwise validly constituted and the petitioner has not been prejudiced, which prejudice the petitioner has not been able to show.
17. A provision to appoint a Committee, 'comprising two members' a best provides for the minimum number of the members of the Committee. The appointment of the Committee comprising three members would not therefore, make the appointment of the Committee illegal as the power of appointment manifestly does exist and rests with the Chairman and the non-compliance of a directory provision does not render the act invalid or illegal Sutlej Cotton Mills Ltd., Okara v. Industrial Court West Pakistan, Lahore and another (P L D 1966 S C 472), Nlaz Muhammad Khan's case (PLD1974SC134) and Khaista Muhammad's case (PLD1978SC(AJ&x)118.
18. Moreover, no prejudice has been caused to the petitioner by the appointment of 3-Member Committee instead of 2-Member Committee. B the Constitution of 3-Member Committee, I am of the view that the interests the petitioner have been better guarded and it has been to their advantage that instead of a counter-check by two minds there has been a counter check by three minds. whether because of 3-Member Committee the petitioner has been prejudiced but in this case there is a unanimous verdict of three eminent educationalists, who in no manner are under the influence of the Board or subject to the control of the Board nor has the petitioner even hinted at any of the members having any personal prejudice against any of the candidates. The objections regarding the Constitution of the Committees and the validity of the proceedings before it also, therefore, have no merit.
19. The nature and extent of the enquiry before a Tribunal has been examined by the Supreme Court in quite a few cases, leading of which is University of Dacca v. Zakir Ahmad (P L D 1965 S C 90), wherein it was observed;
"Of course, a 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 effected to correct or contradict any relevant statement prejudicial to him."
The above view was reiterated in Samar Parvez's case (P L D 1971 S C 838), in the following words :-
"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.
Conjectures and suspicion cannot take place of proof. A tribunal decision must rest' not on suspicion but upon legal grounds established by legal evidence."
And the same principle was reiterated in Rabat Siddiqpi's case recently decided by the Supreme Court of Pakistan.
The points raised by the learned counsel for the petitioner have been aptly dealt with in Shoukat Ali's case (1981 S C M R 365) and their Lordships of the Supreme Court after analysing the entire case-law up to date have reiterated the view of the Supreme Court in the following words;
"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 person 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, .......... 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 or to examine the witnesses in his presence or to afford him the facility of cross-examining any witnesses." (Underlining" is mine).
From the above-quoted citations from the Supreme Court of Pakistan and other judgments cited at the bar, the principle that emerges is, to the effect that in the absence of any express words to the contrary in the enactment the principles of natural justice are applicable to the proceeding before the Discipline Committees or Domestic Tribunals, but it does not mean that a Discipline Committee or the Domestic Tribunal so appointed has to treat the matter as if it was a trial or has to examine witnesses in the presence of the person accused or gave him facility for cross-examining the witness against him or even to serve a formal charge-sheet upon him. Such Discipline Committee, a domestic Tribunal, a person or authority can obtain information in any way it thinks fit, but has to afford a fair and reasonable opportunity to the person sought to be affected to correct or contradict or explain any relevant statement, document or circumstance sought to be taken into consideration against him. And in the absence of any tangible proof of the Discipline Committee or the domestic Tribunal having a prejudice against the person so accused, the finding of facts ought to vest and rest exclusively m the ultimate judgment of the Discipline Committee, domestic Tribunal or authority.
20. While I am conscious of the fact that many a time a Domestic Tribunal may lapse in affording a reasonable and fair opportunity to the defendant, of showing cause against the contemplated action but on the other hand the fact cannot be lost sight of that a delinquent or an offender or a person having a tendency to trend on the wrong side of the law, despite having been provided with all the opportunities to show cause, in order to perpetuate the benefit of his misdeeds may be reluctant to accept the fact that he has been provided such an opportunity, therefore, the Courts are constrained not to accept mere assertions in the absence of any tangible proof in support thereof, and take a pragmatic view of the matter and satisfy itself about the providing of such an opportunity from the record and attending circumstances.
21. According to the facts and circumstances of the case in hand I do not think it lies in the petitioner's mouth to say that he has been condemned unheard or that he has not been provided a fair (not unfair) or reasonable (not unreasonable) opportunity to explain the circumstances. As narrated in the statement of events, he was served with a charge-sheet dated the 3rd January, 1980, in the following words;
"It has been alleged that you, Zafar Ullah son of Muhammad Siddiq Roll No. 6054, while appearing in the 1979 Inter (Spring) Examination in Urdu. (A & B), Eng. (B), Phy. (B), Ch. (A) and Bio. (B) at Bhai. Pheru Centre, substituted the answer books, and additional answer books not duly issued to you for the examination. This is an offence which falls under rule 6.8 (vii) printed on the following pages."
The petitioner submitted his reply on the 17th of January, 1980, as follows :
At no stage I had been informed of the standards making use of which I would have ensured if an answer book was duly issued' by you or not. I had however, used what had been provided to me in the examination centre, and I am not the least aware of any so-called 'substitution'." On the 30th January, 1980, the following charge-sheet (Annexure D) was issued to the petitioner ;
"It has been alleged that you, Zafar Ullah son of Muhammad Siddiq Roll No: 6054, while appearing in the 1979 Inter (Spring) Examination in E. A., Phy. A, Ch. B, Bio. A at Bhai Pheru Centre substituted the answer books and additional-answer books by the answer books and additional answer books not duly issued to you for the examination. This is an offence which falls under rule 6.8 (vii) printed on the following pages."
The circumstance by itself ,that he managed to pass with 700 out, of 1000 marks, from Bhai Pheru Centre, is enough to establish unfair means' charge when one examines the result in comparison with his past performance, i. e. he appeared for the first time in the Inter 1971 (Spring) Examination held be the Board of Intermediate and Secondary Education, Lahore from Shakargarh Centre and failed in Physics, Chemistry and Biology. He failed in English, Physics, Chemistry and Biology in 1972 Inter- (Spring) Examination from Lahore Centre. In the third attempt, i.e. 1972 Inter (Autumn) Examination, he failed in Physics, Chemistry and Biology appearing from Shakargarh Centre. In the 4th attempt i.e. 1973 Inter (Spring) Examination he failed in English,Physics, Chemistry and Biology, again appearing from Shakargarb Centre. In 1976 Inter (Spring) Examination while appearing from Lahore Centre he failed in Biology. In 1976 Inter (Autumn) Examination taken from Lahore Centre, he failed again in Biology. And this circumstance is further corroborated by the fact that the examination in which he purport to have obtained 70 per cent. marks was taken from Bhai Pheru Centre with which place he ostensibly has no connection as he permanently belongs to Shakargarh. In earlier attempts in which he failed, he appeared 3 times from Shakargarh Centre and 3 times from Lahore Centre.
22. There may be cases of direct evidence and cases of circumstantial evidence and about the latter it is often said that men can lie but not the circumstances. The question of affording an opportunity to cross-examine the witnesses would only arise in cases where direct evidence was available and has been led but in cases where the evidence is of circumstantial nature it would suffice to state the same to the offender and afford him an opportunity to explain the circumstances so appearing and in the latter case the question of affording an opportunity to cross-examine the witnesses would not arise and in my humble view the case of the petitioner is of the latter nature and a fair and reasonable opportunity has already been afforded to the petitioner for explaining the circumstances appearing against him.
23. The petitioner has approached this Court with sullied hands and law is a rule of right ; and whatever is contrary to the rule of right is wrong. Fraud and justice never dwell together (Fraus et'fus num quam cohabitant; nor fraud and deceit ought to benefit anyone (Frau et dolus nemini patrocenarl debut), and these ancient principles were duly recognized in the Chief Settlement Commissioner, Lahore - v. Raja Muhammad Fazil Khan curd others PLD1975SC331 where it is stated that fraud vitiates the most solemn proceeding and no party should be allowed advantage of his fraud. And it has been consistently held that the discretionary relief ought not to be granted by the High Court to help retention of ill-gotten gains by a party even if because of any technical reason an order- made by a Tribunal is not found justifiable, as the writ jurisdiction is not to be invoked in aid of injustice.
24. For all the above-stated reasons the writ petition is dismissed.
The charges levelled against the petitioner and found by the Board to have been duly proved against him make a very sad reading and are of a extremely serious and grave nature, machinations of the type indulged in b the petitioner not only result in undue advantage to unscrupulous and undeserv ing candidates to the exclusion of bona fide scholars but also bring an infamy and bad name to our Boards and Universities both within and outside the country, in fact in the ultimate analysis the image of the entire nation is tarnished. In the circumstances, I cannot conceive of a better case where) the petitioner would deserve to be burdened with exemplary costs. 1, there fore, order the petitioner to pay as costs to each of the respondents Rs. 2,000.
S. A. H. Petition dismissed
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