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Miss KAVITA KUMARI--Petitioner
versus
BOARD OF INTERMEDIATE AND SECONDARY EDUCATION
SUKKUR through its Chairman & 2 others--Respondents
Constitutional Petition No. D-21 of 1987, decided on 24th May, 1987.
(a) Calendar Board of Intermediate and Secondary Education (Sukkur)--
---R. 8--Natural justice, principles of--Violation--Charge of unfair means against examinee--Neither proper show-cause notice was given nor opportunity to defend allowed to such examinee- -Effect--Without specifying sufficient details in precise charge against examinee in show-cause notice, recipient of such show-cause notice, held, could not be expected to defend himself /herself--Details about precise charge was a mandatory requirement in show-cause notice even in an inquiry by a domestic tribunal under principles of natural justice.
Miss Tayaba v. Controller of Examinations P L D 1976 Kar 481; Samar Pervaiz v. Board of Intermediate and Secondary Education P L D 1971 S C 838; Abdul Latif v. Chairman Board of Intermediate and Secondary Education Sukkur 1986 C L C 1908; Amar La: v. Board of Intermediate and Secondary Education Sukkur 1986 C L C 1848; Qamar Ali Baloch v. Principal Dawood College 1987 C L C 371; Sayeeduddin v. University of Karachi 1987 C L C 381 and Dawarkadass v. Province of Sind 1986 C L C 1977 ref.
(b) Calendar Board of Intermediate and Secondary Education (Sukkur)--
---R. 8--Charge of unfair means against examinee--Adverse action taken against examinee on ground that he was caught with copying material in her possession--Confidential report of External Superintendent available on record, on basis of which action was taken against examinee, held, could not form nexus between petitioner and incriminating copying material as same was incomplete with regard to relevant entries--External Superintendent neither mentioning in her report that any copying material was recovered from examinee nor filling up printed confidential report pro forma relating to specified columns--Without giving particulars as to what was done by petitioner and without filling up particular columns said confidential report by itself was no legal evidence on basis of which Disciplinary Action Committee could find that examinee had copied from copying material- Case against examinee according to material on record at best, could be one of suspicion especially when External Superintendent who prepared the report was not examined by Disciplinary Committee--On mere suspicion or conjectures, without legal evidence, charge of unfair means against examinee could not be sustained.
(c) Calendar Board of Intermediate and Secondary Education (Sukkar)--
---R. 8--Constitution of Pakistan (1973), Art. .199--,Constitutional jurisdiction, exercise of--Charge of unfair means against examinee- Punishment awarded by Board of Intermediate and Secondary Education to examinee, without legal evidence on record and without giving such examinee proper opportunity to defend herself, being without lawful authority was set aside by High Court in exercise of constitutional jurisdiction.
Muhammad Hanif Mangi for Appellant.
Kadir Bux Memon for Respondent.
Date of hearing: 14th April, 1987.
NASIR ASLAM ZAHID, J.--This constitutional petition has been filed by petitioner Kavita Kumari challenging the actions of the respondents whereby punishment of cancellation of all the papers of the petitioner of Higher Secondary Examination Part II (Inter Science-Pre-medical group) also debarring her from re-appearing in Examination of 1987 has been inflicted. Brief facts are that the petitioner had appeared in Higher Secondary Examination Part II (Inter Science-Pre-Medical Group) in the year 1985 of the Board of Intermediate and Secondary Education, Sukkur but she secured only 56.6% marks and as such the petitioner, with permission of the respondents, appeared in 1986 for improvement of her percentage in both Classes XI and XII examinations. She appeared from Government Girls College Jacobabad Centre and sat in all the papers examination whereof took place in May, 1986. According to the memo of petition, the petitioner did all her papers in the 1986 examination to the satisfaction of the superiors /invigilators of the said examination centre. On 4-11-1986 however, a show-cause notice was addressed to the petitioner by the Controller of Examinations (respondent No. 2 herein) alleging that it has been reported /pointed out by the Superintendent of her examination centre concerned that in Chemistry II and Zoology II papers she was found having in her possession or accessible to her paper, book or note which was possibility of assistance to her and she was asked to explain the charges levelled against her before 9-11-1986 as to why disciplinary action should not be taken against her under the relevant Rules of the Board and if she wanted to be heard in person, she should appear before the Disciplinary Action Sub-Committee on 11-11-1986 in the Office of the Controller of Examinations. The petitioner submitted an explanation that the charge against her was not true and correct and she denied that she was found in possession of any paper, book or note which was possibly of any assistance to her in solving the question papers and that she had not used any unfair means or cheating. She also appeared before the Disciplinary Action Sub-Committee and, according to the memo of petition, there a photostat copy of one paper of Chemistry paper II was shown to the petitioner on which seat number and petitioner's name was written in Sindhi Vernacular but the petitioner denied that the photostat copy of that slip was in her handwriting or that she had used any unfair means and the same was the case relating to the paper of Zoology II. By notification dated 30-11-1986 issued under the signature of respondent No.2, however, the names. of several candidates were mentioned who were not found guilty of the charges and names of several other students with their roll numbers were also mentioned who were found guilty by the Disciplinary Action Sub-Committee and in the group in which the name of petitioner Kavita Kumari appeared, it was stated that the charges levelled against the candidates in that group had been proved and as such all their papers of Annual Examination, 1986 were cancelled and they were allowed to appear in those papers only in the Annual Examination, 1987. The petitioner, being aggrieved, filed a review petition dated 7-12-1986 denying charges against her and staring that nothing was recovered from her in the examination hall by the Superintendent of Examinations at any time and that she was not found in possession of any paper or any book which was possibly of any assistance to her for solving the question papers. However, by notification dated 20-12-1986 of respondent No. 2 it was notified for general information that the Permanent Appellate Committee of the Board had heard the mercy/review petitions of the candidates mentioned in the said notification and against the names of about 34 candidates including that of the petitioner it was mentioned that the punishments awarded by the Disciplinary Action Sub-Committee had been upheld. She made representation to the Appellate Committee of the Board of Intermediate and Secondary Education Sukkur for reconsideration of their decision on 1-1-1987 but no relief was given to the petitioner and as such she filed the present Constitutional Petition. When this petition came up for hearing before us, we asked Mr.. Kadir Bux Memon, learned counsel for the respondents, to make available the record of the proceedings taken against the petitioner by the Disciplinary Action Sub-Committee of the Board of Intermediate and Secondary Education, Sukkur. Mr. Kadir Bux Memon called for the record which was perused with the assistance of learned counsel for the parties. We heard arguments of Mr. Muhammad Hanif Mangi, learned counsel for the petitioner and Mr. Kadir Bux Memon, learned counsel for the respondents.
2. From the original answer books of the petitioner available in the record brought by Mr. Kadir Bux Memon, it follows that Chemistry II paper was held on 6-5-1986 and the petitioner appeared in Zoology II paper on 13-5-1986. In the record, official reports in respect of both the papers against the petitioner by the External Superintendent are available. These reports are to be filled up on printed forms which require necessary information from the person making the official report about the attempt of unfair means of breach of examination Rules or indiscipline by any candidate in the examination. In both the official reports i.e. in respect of Chemistry II paper and Zoology II paper the name of the petitioner, and her roll number is mentioned. But' columns Nos. 6 to 11 in both reports were not filled up by the Superintendent.
Then the remarks/ recommendations of the Disciplinary Action Sub-Committee available in the record procedure by Mr. Kadir Bux Memon, show that the material or the papers which the petitioner was alleged to be holding for copying or had copied did not tally with the answers. given in the Chemistry II paper by the petitioner but it tallied in the case of Zoology II paper.
3. Mr. Mangi, learned counsel for the petitioner, had submitted that the material before the Sub-Committee did not connect the petitioner with the photostat copy of the material from which she is alleged to have copied. It was argued that although the same External Superintendent had made two separate reports against the petitioner, it had been found that in so far as the Chemistry II paper was concerned, the petitioner had not even answered the question which were found in the photostat copy of the paper allegedly found in her possession. It was then submitted that the External Superintendent was required to mention in her report the precise allegation /charge against the petitioner i.e. what had actually been done by her or what was found in her possession but the record shows that no details whatsoever have been given in the official reports. It was also submitted that the External Superintendent was required to submit the report immediately but the record does not show as to when such report had been submitted and to whom. Learned counsel for the petitioner had also relied upon the following judgments in support of this petition:
(1) Miss Tayaba v. Controller of Examinations P L D 1976 Kar. 481.
(2) Samar Pervaiz v. Board of Intermediate and Secondary Education P L D 1971 S C 838.
4. On other hand, Mr. Kadir Bux Memon, learned counsel for the respondents submitted that a proper show-cause notice had been given, the petitioner gave a reply, she was granted hearing by the Disciplinary Action Sub-Committee whereafter action was taken. According to learned counsel for the respondents, the charges against the petitioner have been established and the action taken against the petitioner is not liable to interference in the Constitutional Petition. Learned counsel referred to following reported judgments:----
(1) Abdul Latif v. Chairman Board Intermediate and Secondary Education Sukkur 1986 C L C 1908.
(2) Amar Lai v. Board of Intermediate and Secondary Education Sukkur 1986 C L C 1848.
(3) Qamar Ali Baloch v . Principal Dawood,College 1987 C L C 371.
(4) Sayeeduddin v. University of Karachi 1987 C L C 381.
(5) Dawarkadass v. Province of Sind' 1986 C L C 1917.
5. In P L D 1976 Kar. 481, a Division Bench of this Court declared the punishment inflicted on the two petitioners in that case as illegal on the ground that there was violation of the principles of natural justice inasmuch as full opportunity for defending themselves had not been given to the petitioners and also for the reason that the opinion of the Sub-Committee rested on suspicion without there being any legal proof.
In P L D 1971 S C 838, Supreme Court of Pakistan observed that domestic Tribunals like a University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial but from this it did not follow that such domestic forums while dealing with valuable rights and privileges of an individual, can snatch them away on conjectural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. It was also observed by the Supreme Court that conjectures and suspicions cannot take the place of proof and a Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence.
In 1987 C L C 381, a Division Bench of this Court exercising constitutional jurisdiction declared as illegal the action of Karachi University whereby the admission of the petitioner, a candidate for M. Phil/Ph. D, was cancelled on his alleged mis-behaviour without giving him any prior show-cause notice and without asking him to submit his explanation.
In 1987 C L C 371, another Division Bench of this Court held that the order of Controller of Examinations cancelling the result of petitioners' examination could not be sustained as no prior show-cause notice was given and also for the reason that there was no legal evidence to justify the conclusion reached by the Controller of Examinations;
In 1986 C L C 1917, another judgment of a Division Bench of this Court, the action of the Board was upheld on the ground that proper opportunity was given to the candidate to defend himself.
6. In the instant case, there has been violation of principles of natural justice as neither a proper show-cause notice was given to the petitioner nor she was given full opportunity to defend herself. In the show--cause notice, no details whatsoever are given to apprise the petitioner about the precise charge she was to face in the inquiry. If any copying material had been recovered from her, the show-cause A notice should have mentioned so and so also some description of such copying material. Without specifying in sufficient detail the precise charge against the candidate, how can the recipient of such charge sheet or show-cause notice expected to reply or defend herself properly. This would amount to denial of a full and complete opportunity to the candidate to defend herself, a mandatory requirement even in an inquiry by a domestic tribunal under the principles of natural justice.
7. Then there was no legal evidence on the basis of which the Disciplinary Committee could reach the finding that the charge against the petitioner had been established. From a perusal of the record relating to the inquiry, which has been made available by learned counsel for the Board, it appeared that adverse action has been taken against the petitioner on the ground that the petitioner had been caught with copying material in her possession while she was appearing in Zoology paper II on 13-5-1986. There was also an allegation, as it appeared on perusal of the inquiry papers, that she had also been caught with copying material on 6-5-1986 when she was appearing in Chemistry paper II but she was absolved of such charge. Coming back to the charge about Zoology paper II, it appears from the inquiry papers that the entire case against the petitioner depended on the confidential report of the External Superintendent. Such report, available in the inquiry papers, per se does not form the nexus between the petitioner and the incriminating copying material as the report is incomplete in regard to the relevant entries. The report does not show whether it was made on 13-5-1986, when examination of Zoology paper II was held, or later. There is no indication in the inquiry papers as to whom and when such report was sent. Then the main and perhaps fatal flaw in the report is that the External Superintendent has neither mentioned in her report that any copying material was recovered from the petitioner nor she filled up the printed confidential report pro forma from column Nos. 6 to 11. Columns Nos-. 1 to 5 relate to name and year of the examination; name of centre; seat No. of candidate subject and paper; time of detection and name, designation and address of the invigilator who detected the case. Only these 5 columns were filled by the External Superintendent but nothing was written by the External Superintendent against columns 6 to 11. These columns are reproduced here:----
(6) "Detailed circumstances of a case (actual position as to whether the candidate was caught in the act of copying or in case of more possession of incriminating material, the place where such material was found & whether he succeeded----- in using the same)---------------------------
(7) Whether the candidate resisted in surrendering the papers or defined or misbehaved towards the supervising staff; if so, details should be given as under .........................
(i) He/She changed his/her seat with Roll No. whose explanation is enclosed .................
(ii) He/She created disturbance in the Examination Hall/Room by, the way of ......................
(iii) He/She misbehaved in or around the examination Hall/Room by the way of
(8) Is the statement of explanation of the candidate recorded enclosed ...............
(9) Is the Report of the invigilator who detected the case enclosed .....................
(10) Definite opinion of the Centre Superintendent based on the circumstances and the written report of the Invigilator .........
(11) Mode of despatch of script/s and the incriminating material with date of despatch "
Without giving any particulars as to what was done by the petitioner and without filling up columns 6 to 11, the aforesaid confidential report standing by itself is no legal evidence on the basis of which the Disciplinary Action Sub-Committee and other respondents could find that the petitioner had copied from the copying material. As observed earlier, the nexus between the petitioner and the copying material had not been proved. The petitioner had denied that any copying material had been recovered from her. Apparently the concerned External Superintendent had not been examined by the Committee. At best it was a case of suspicion but on mere suspicion or conjectures, without legal evidence, the charge against the petitioner could not be sustained.
8. As a result, this Constitutional Petition is allowed to the extent that the notification dated 30-11-1986 of the Board of Intermediate and Secondary Education Sukkur in so far as it awards the punishment of cancellation of all the papers of the petitioner and debars her from reappearing in the 1987 examination, and the notification dated 20-12-1986 of the Board upholding such punishment are declared to have been made without lawful authority and are of no legal effect and the respondents are directed to declare the result of the petitioner on the basis of the marks obtained by her in the Examination held in 1986.
Parties shall bear their own costs.
A.A. /M-236/x ----- Petition allowed
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