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High Court Appeal No.43 of 1983, decided on 16th March, 1987.

---Where sufficient opportunity was afforded to a party to prove his case, question of violation of natural justice, held, would not arise.

Mehrab Khan v. Taj Mohamed and others P L D 1961 (W.P.) Quetta 1; Dr. Mumtaz Husain v. University of Sind, Hyderabad and others P L D 1966 Kar. 429; Quadri Brothers Foundry and Workshop Karachi v. Sind Employees' Social Security Institute P L D 1977 Kar. 112; Pakistan Warranted Warehouse Ltd., Karachi v. Government of Pakistan and 4 others P L D 1977 Kar. 954; M/s. General Tractors &, Machinery Company Ltd., Karachi v. The State 1972 P Cr. L J 604; Triambak Pati Tripathi v. The Board of High School and Intermediate Education, U.P., Allahabad A I R 1973 All. 1 ref.

---Banking Diploma Examination--- Candidate declared successful it examination--Such declaration subsequently cancelled on grounds of concealment of material facts in Entry Form of examination and for using unfair means in a paper by such candidate--Bifurcation of charges at appellate stage whether possible--At the trial emphasis was laid on the fact that examinee had used unfair means--Admitted position being that he was not afforded fair opportunity, which resulted in setting aside order of cancellation of result--If examining body had confined itself to consideration of concealment of material fact in Entry Form, the candidate could have been debarred from future examinations--Two charges, one of using unfair means at the examination and the other of concealment of material facts in Entry Form, held, could not be bifurcated at appellate stage before High Court--Overall conclusion had to be considered in the light of evidence on record.

Forbes v. Git and others A I R 1921 P C 209; Board of Trustees of the Maradana Mosque v. Badiudin Ahmed and another PC 1965(A C 13); Radha Sunder Datta v. Muhammad Jahaour Rahim and others P L D 1959 S C (Ind.) 9 ref.

--- Finding of Trial Court based on evidence on record, Held, would not be open to exception under appellate jurisdiction of High Court-- Examining body, however, could proceed against examinee on any of two charges levelled against him afresh.

Mansoor Arfin for Appellant.

S.M. Abbas for Respondent.

Dates of hearing: 10th and 12th February, 1987.

--This appeal is directed against the judgment and decree passed by a learned Single Judge on 7-7-1983.

2. The facts in brief are that the respondent filed suit for declaration to the effect that the order, dated 1-6-1976 passed by the appellant No.1 declaring the result of the respondent for the Higher Accountancy Paper Diploma Part II of the Banking Diploma Examination 1975 announced on 19-2-1976 is without jurisdiction and against the provisions of the Regulations for the conduct of Examination, and the respondent had passed the examination and the result is valid and still subsists. The respondent further sought the declaration that the appellants are legally bound to -issue a Diploma Certificate declaring him as having passed the said Banking Examination. The respondent in his plaint averred inter alia;

(a) That the respondent being a Member of the Appellant No.1 has passed the first part of the Banking Diploma Examination in all the papers by the year 1962.

(b) That after having passed the First Part, the respondent continued to appear in the examination papers for the Second Part of the Banking Diploma and by the year 1975 he had passed in four papers.

(c) That for the Higher Accountancy paper, the Respondent filed his entry form on 10-9-1975 with respondent No.1 and he obtained a certificate at the bottom of the Entry Form from the Manager/Senior Officer of the Bank wherein he was posted at the time of filing the Entry Form. The respondent further alleged that such certificate is considered as an evidence of the place of posting of the respective candidates and that any address given in the form is merely intended for the purpose of mailing only in case of need.

(d) The respondent alleged that accordingly he gave his mailing address as "c/o National Bank of Pakistan Khairpur Mira" for the purpose of receipts of intimation. The respondent stated that accordingly he considered the above statement regarding the first preference as redundant as the same is required only to afford all possible facilities to the candidate which could be convenient to him to appear from a certain Centre. The option of the Centre is exclusive choice of the candidate according to his convenience and the same could not be clogged with a rider of the place of employment which necessarily could not be the place of posting as well. According to the respondent he had taken three months leave as he desired to go to Khairpur Mirs for the purpose of setting his domestic affairs and to look after his wife's proper treatment and he opted for the examination centre of Khairpur Mirs according to such convenience. On 14-11-1975 he sent his son to the appellants for obtaining admit card for him and then again he wrote a letter to the appellant No. 2 on 19-2-1975 from Karachi at the expiry of the leave for the purpose of getting a certificate of having passed all the papers of Part II for the Banking Diploma Examination but vide letter, dated 28-2-1976 the appellant No.2 enquired from the respondent as to how he appeared from the Khairpur Mirs Centre when he was posted at Karachi. Ultimately the appellants cancelled the respondent's examination.

3. The appellants contested the suit and in their written statement stated that the respondent with mala fide intention concealed the material facts in his Entry Form and he knew from the very beginning that in the Entry Form under Column:-

"State towns most suitable in order of preference of examination and first preference must be given to the place of employment."

Every candidate has to show his place of posting. However the respondent instead of preferring Karachi on account of his place of posting being Head Office, National Bank of Pakistan, Karachi, he gave preference to Khairpur Mirs in order to give an impression to the appellants that the posting of the respondent at the relevant time was Khairpur Mirs. The appellants also denied the various contentions of the respondent by their written statement and stated that their action in cancelling the result of candidate was just on the following two grounds:

(a) Concealment of the material facts and intentionally misleading the appellants by providing false information in the Entry Form.

(b) For using unfair means in the paper of Higher Accountancy.

On the pleadings of the parties the following issues were settled.

(1) Whether the plaintiff filed the Entry form correctly

(2) Whether the defendants were not justified in passing the impugned order

(3) whether the defendant No.1 is a juristic person and can it be sued

(4) Whether the plaintiff is entitled to the decree as prayed for

After the evidence had been led by the parties the learned Single Judge framed the following issues:

(1) Whether the impugned order whereby the result of the plaintiff was cancelled suffers from violation of principles of natural justice

(2) Whether the principles of natural justice are attracted to the present case

The learned Single Judge held that no show-cause notice was give to the respondent in respect of the charge of "using unfair means i: the paper of Higher Accountancy" and that no opportunity was given to the respondent to explain this charge. In view of such facts it was held that the impugned order, dated 1-6-1976 suffers from violation of principles of natural justice and the said order was declared as void and illegal. It was further observed that it would be open to the defendants to take proceedings afresh against the plaintiff if so advised following the procedure in accordance with law.

4. At the trial the plaintiff examined himself and the defendants examined Mr. M.M. Malik the Secretary of the Institute of Bankers of Pakistan. Originally four issues were framed, out the those, issue No.3 was given up and thereafter two additional issues were framed. Issue No.3 was decided in favour of the respondent and against the appellants.

5. We have heard the learned counsel for the parties. Learned counsel for the appellant has not challenged the finding of the learned Single Judge as regards the violation of principles of natural justice, in support of the charge "using unfair means in the paper of Higher Accountancy". It is contended that the result was cancelled by the appellants on the ground that the respondent was found guilty of submitting false information in his Entry Form relating to the Banking Diploma Examination. The appellants should have been allowed to proceed against the respondent for supplying false information in his Entry Form.

We have considered the arguments of the learned counsel for the parties. In order to appreciate the contentions advanced by the learned counsel for the appellants it is relevant to refer to the various documents placed by the parties in support of their respective contentions. Ex.9 is the notice issued by the appellant to the respondent wherein he was called upon to show if he was posted at Khairpur on the dates of submission of entry form and the date of examination. Another notice Ex.10 was given to the respondent that in case of incorrect information in the entry form with a mala fide intent the paper is liable for cancellation. The same position was repeated in Ex.11. Ex.12 is the reply furnished by the respondent wherein it is stated that such objections should have been taken in the beginning and he had requested to be examined at Khairpur Mirs rather than 'Karachi as it was convenient for him to appear from Khairpur Mirs during the period of leave. The date of Entry Form is 10-9-1975 and the date of examination is 28-11-1975. The result was cancelled vide Ex.19/7, dated 1-6-1978. It reads as under:-

"With reference to his letter, dated 29th March, 1978 Syed Zainul Abedin, Staff. Officer, National Bank of Pakistan. Business Promotion Department, Head Office, Karachi is advised that the Council of the Institute has found him guilty of submitting false information in his entry form relating to the Banking Diploma Examination (Winter) 1975 and using unfair means in the paper of 'Higher Accountancy' and has decided to cancel his result in the subject and to debar him from appearing in the Institute's examination for a period of three, years. He will be eligible to appear in the examination in 1979 (Summer).

(Sd/-)

(M.M. Malik) Secretary."

The action against the respondent has been taken on two grounds as he was found guilty of Submitting false information in his Entry Form and using unfair means in the paper of Higher Accountancy. The examination form Ex.5 states "State towns more suitable in order of preference for examination". It is further laid down that first preference must be given to the place of employment. The admitted position is that the respondent was employed at Karachi at the time when he had submitted this form: He was also posted at Karachi when he had appeared in the examination.

6. The learned counsel for the appellant has not challenged the finding of the learned Single Judge that he was condemned unheard in relation to the charge of using unfair means in the paper but it is contended, that as the respondent was bound to give his preference to the place of employment which he has not done, therefore, he has violated the requirement of appearing in the examination. As sufficient opportunity was afforded to the respondent, therefore, question of violation of natural justice does not arise. Notices Exs.9, 10 and 11 had been issued to the respondent and the respondent had submitted his reply on 29-3-1976 in his letter Ex. 12. The appellant has considered the reply and, therefore, action had been taken. Learned counsel has referred to the case of Mehrab Khan v. Tai Mohamed and others P L D 1961 (W.P.) Quetta in support of his contention that a personal hearing before deciding a matter is not necessary requirement of the principles of natural justice. All that is necessary is a full and fair opportunity of making a representation or showing cause.

He has also relied upon P L D 1966 Karachi 429 Dr. Mumtaz Hussain v. University of Sind Hyderabad and others, P L D 1977 Karachi 112 (Quadri Brothers Foundry and Workshop Karachi. v. Sind Employees" Social Security Institute). P L D 1977 Karachi 954 (Pakistan Warranted Warehouse Ltd. Karachi v. Govt. of Pakistan and 4 others), 1972 P.Cr.L.J. 604 (M/S General Tractors & Machinery Company Ltd. Karachi v. The State).

He has also referred to the case of Triambak Pati Tripathi v. The Board of High School and Intermediate Education, U.P., Allahabad, (A I R 1973 Allahabad 1). He elaborated his argument and submitted that personal hearing to the candidate against whom-action is proposed to be taken by the Examination Committee is not necessary. There is neither any statutory requirement, nor any requirement of principles of natural justice which compels the Examination. Committee to give a personal hearing to the candidate. Learned counsel for the appellant has submitted that as the two charges are distinct and separate therefore, even if the second charge be struck down, the first charge stood proved against the respondent. As such the learned trial Court should have recorded his finding on issues No.1 and 2 in favour of the appellant but no finding has been recorded on these issues. The Form Ex.5 shows that in case wrong information is given the forms are liable to out right rejection. In this case the form- was submitted by the respondent. It was scrutinised by the appellant. The respondent was allowed to appear in the examination. .The allegation of using unfair means in the examination has not been established even on the basis of the material on record. The maximum penalty provided for submitting wrong information is the rejection of form; and if the form had been rejected at that time there was no embargo for the respondent to appear again in the succeeding year.

At the most if wrong information was -applied by the respondent he could be disqualified for one year but in the instant case he was debarred to appear in the examination for a period of three years. Thus the extreme penalty has been imposed on the respondent. In fact the emphasis of the appellant in taking action against the respondent was on the fact that he had used unfair means in the examination and the two charges were so framed as to disqualify the respondent in appearing in examination for a period of three years. Initially the respondent was called upon to explain as to why he has furnished wrong information in the entry form; but subsequently they added the second charge and the suit was contested on both the charges. When the appellant's own witness gave certain concessions in the statements then the appellant realised that this charge could not be proved, therefore, they took some result and dropped this charge. The appellant's witness M.M. Malik in his statement has admitted that it is not necessary for the Institute to arrange examination of the candidate at the place where he is posted and if a Centre has been fixed; a candidate from that Centre cannot appear in any other centre, unless meanwhile he is transferred to that centre. D.W.1 in order to show that the respondent has used unfair means has stated that on scrutiny of the papers it was revealed that he had secured nearly first class marks when in the previous examination he had secured zero marks in this paper. He has admitted that the forms are scrutinised before the announcement of the results and not afterwards and if they found any irregularities in the entries in entry form they issue advice to the candidates to rectify the irregularity. He has admitted that an officer can appear in examination at a centre other than centre of his posting if he is allowed by the Institute and the rules do not necessarily fissure that a centre for a candidate shall be at the place of his posting and the rules assured the candidate that examination can be fixed according to his convenience but subject to certain conditions. It has been admitted by the witness that the respondent was declared among the successful candidates. He has also admitted that Roll numbers of the candidates whose results in, cancelled for use of unfair means and for failure to submit the requisite information and/or for contravention of the rules and who were debarred were also announced in Ex.19/2 (result). He has further admitted that cancellation of the result of the aforesaid candidates was after thorough examination of the record and enquiry. All these facts would clearly indicate that at the trial the emphasis was laid down on the fact that the respondent had used unfair means and as the admitted position is that he was not afforded fair opportunity, therefore, the order impugned in the suit was set aside by the learned Single Judge. At this late stage it cannot be urged that the two orders be separated and the finding of the trial Court be reversed on issues No.1 & 2. As no findings have been recorded by the learned Single Judge in view of his findings on additional issues No.1 and 2, therefore, the judgment impugned in this appeal cannot be set aside to suit the appellant. Ex.19/12 are the rules for conducting examination; and rule 4 provides that a candidate must submit a certificate regarding his service in a bank signed by the Manager or authorised officer of the bank in which the candidate has been serving. In this case such certificate had been issued by an officer of the bank where the respondent was employed. According to these instructions incomplete forms or forms giving incorrect information are liable for outright rejection and cancellation. According to rule 9 change of centre will not be permitted except in cases of transfer duly certified by the bank. The Institute will endeavour as far as practicable to arrange for the examination of such candidates at the nearest available centre, if it were not possible to hold the examination at any particular centre. According to another rule the Institute shall have the right to disqualify any candidate who has received or given unfair assistance at the examination and the Council may cancel, the result of such candidate in any or all of subjects of the examination. According to rule 6 candidates giving misleading information shall be debarred from future examinations. The Institute reserves the right to cancel the result of candidates who are found guilty of using unfair means in the examination subsequent to the announcement of the result. Under rule 17 candidates shall not be allowed to change the examination centre without prior approval of this Institute. Examination taken at Centre other than that allotted to the candidate shall be treated as irregular and cancelled.

7. The aforesaid facts would clearly indicate that the appellant wanted to take action against the respondent on the principle charge that he had used unfair means in the examination. The action was taken on two charges. The respondent has been prejudiced as held by the learned Single Judge. If the appellant had proceeded against the respondent on the first charge the position would have been different, and the trial Court would have confined itself to the consideration of such charge but a charge of serious nature was levelled against the respondent. The charge was seriously pressed at the trial and evidence was led to show that the charge of using unfair means in the examination' had been proved. The respondent had cleared the examination and there was no report of using unfair means. Apart from the respondent many other candidates had appeared/ at the examination in the same centre, therefore, it cannot be urged that the appellant had to arrange the examination centre for the convenience of the respondent alone. In these circumstances the two charges cannot be bifurcated at this stage. The over all conclusion has to be considered in the light of the evidence on record.

8. Learned counsel for the respondent has referred to the case of Forbes v. Git and others reported in A I R 1921 Privy Council 209 wherein it has been observed that if in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause is to be rejected as repugnant and the earlier clause prevails but if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and the effect is to be given to the intention of the parties as disclosed by the deed as a whole.

He has also referred to the cases of Board of Trustees of the Maradana Mosque v. Badiudin Ahmed and another reported in P.C. 1965 (Appeal Cases 13), Radha Sunder Datta v. Muhammad Jahadur Rahim and others P L D 1959 Supreme Court (Ind.) 9 and Constitution Petition No.604 of 1965 Iqbal Husain v. Central Board of Directors of National Bank of Pakistan.

10. The upshot of the above discussion is that the judgment impugned in this appeal is not open to exception. The appellant may proceed against the respondent on any of the two charges as observed by the learned trial Judge. The appeal is dismissed leaving the parties to bear their own costs.

A.A./1-7/K Appeal dismissed.

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