SM Hasan Faruqi and others Vs. Controller of Examination, National University, and others, 59 DLR (2007) 58

Case No: Writ Petition No. 6228 of 2003

Court: Appellate Division ,,

Advocate: Mr. Md. Ruhul Amin Bhuiyan,Mr. Tajul Islam,Mr. A.H.M. Mushfiqur Rahman,,

Citation: 59 DLR (2007) 58

Case Year: 2007

Appellant: SM Hasan Faruqi and others

Respondent: National University and others

Delivery Date: 2005-5-4


Supreme Court
High Court Division
(Special Original Jurisdiction)

Present:
ABM Khairul Haque J
ATM Fazle Kabir J
 
SM Hasan Faruqi and others
....................................Petitioners
Vs.
Controller of Examination, National University, and others
…………….………..Respondents
 
Judgment
May 4, 2005.
 
National University Examination Regulation, 1999
Regulation No. 29(10)(12)
Constitution of Bangladesh, 1972
Article 102(9)
As a matter of general principle, a court of law does not like to interfere in the matter of imposition of punishment by the University Authority pursuant to its legal proceeding against an incumbent. But this Court will not go slow in exercising its jurisdiction under Article 102 of the Constitution if there was an error apparent on the face of the record and non-application of mind of material facts, or there was an arbitrary, or malafide exercise of power on the part of the concerned authorities of the University. …….…. (9)
 
Lawyers involved:
Md. Tajul Islam, Advocate—For the Petitioners
AHM Mushfiqur Rahman, Assistant Attorney-General — For the Respondents.
Md. Ruhul Amin Bhuiyan, Advocate — For Respondent Nos. 1 & 2.
 
Writ Petition No. 6228 of 2003
 
JUDGMENT
ATM Fazle Kabir J.
 
          This Rule Nisi was issued at the instance of the petitioners SM Hasan Faruqi and 8 others calling upon the respondents to show cause as to why the impugned order of respondent No. 1 under স্বক্ষর নং-জাতি: বি: পরী:/অনার্স-৩/২০০০/২০০১/২০০৩/১৮১৮ তারিখ ২০/৯/০৩ (Annexure C) should not be declared to have been passed without lawful authority and is of no legal effect.
 
2. The short facts of the petitioner's case are, that they were regular students of Patuakhali Government College, who appeared for Honours examination from the Department of Management in the examination held in the year 2000 under the National University. From the declaration of results it was found that they were unsuccessful in one paper namely Comprehensive but ultimately they were allowed to sit for "Referred" examination in the above subject held on 18-10-2002. The result of the said examination of the petitioners was kept withheld without showing any cause whatsoever. After a long slumber of months a notice of "show cause" was served upon the petitioners under Memo No. জাতি/পানি/অনার্স-৩/২০০০/২০০১/২০০৩ তারিখ-১৩-১-২০০৩ issued by the respondent No. 2 wherein it was alleged that the petitioners said to have slipped the answer scripts outside the examination hall, got the answer scripts written from outside by different hand and got those attached with the answer scripts. The petitioners were asked to submit their explanation within 10 days and accordingly, the petitioners submitted written explanations stating those allegations were false and baseless. The notice of show cause and reply to the notices have been marked as (Annexure-A & B series). That the petitioners also submitted representation to the principal of the college alleging that the petitioners have committed no offence as alleged in the notice of show cause. After a long gap of over 8 months, the respondent No. 1 by Notification under Memo No. জাতি: বি: পরী:/অনার্স-৩/২০০০/২০০১/২০০৩/১৮১৮ তারিখ-২০-৯-২০০৯ had intimated the petitioners that the Examination Disciplinary Committee upon careful scrutiny of their explanations had found the petitioners guilty for the offence and had cancelled the result of the examination held in year 2000 and also debarred them from sitting for the examination for coming 3 academic years. That Notification is marked as Annexure-C. It is stated that while the respondent No. 1 passed the impugned order of punishment he did not take into account the human aspect—the effect upon the future careers of the petitioners. It is stated that the impugned order of punishment has touched the right of the petitioners granted under Articles 27, 31 and 35 of our Constitution, since they have been deprived of being heard before awarding the alleged punish­ment. The learned Advocate appearing on behalf of the petitioners served notice of Demand of Justice upon the respondents but with no response. Being aggrieved and dissatisfied thereby, the petitioner obtained this Rule.
 
3. The respondent Nos. 1 & 2 filed an affidavit-in-opposition sworn on 24-7-2004 denying all the material allegations made in the writ petition. It is stated that when the answer scripts reached to the University then those were examined by the authority and found that the petitioners changed the answer scripts except the cover pages by adopting unfair means in the said examination. Thereafter, the Controller of Examinations of the National University duly issued a "Kaifiat patra" to every petitioner (Annexure-A series of the writ petition) mentioning the specific allegation against the petiti­oners contained therein (Ta) asking them to show cause why the disciplinary action or punishment shall not be taken against the petitioners for their illegal anti-disciplinary activities and also asked them to give reply within 10 (ten) days from the date of issuance of "Kaifiat Patra". The petitioner's submitted explanations but those were found unsatisfactory by the authority and the materials of allegations were placed before the disciplinary committee for its examination and opinion. The Committee observed that the petitioners adopted unfair means in the examination in the way that they either changed their answer scripts or the extra sheets written from outside were annexed to it. Considering all the aspects, the University Authority found the petitioners guilty for the offence and cancelled the results of the examination of Honours Part-3 of 2000 and debarred them from appearing in the further examination for the years 2001,2002 and 2003 (Annexure-3). The petitioners committed offence under section 29(10)(ta) as well as under section 11 (ta) of the Examination Conducting Rules. In this respect, the sections 29(10)(ta) and 11 (ta) of the Regulations of the National University, 1999 specifically provides that—
 
"কোন পরীক্ষাথীর্র নিম্ন বর্ণিত কার্যকলাপ/অসদুপায় অবলম্বনকে পরীক্ষা সংক্রান্ত অপরাধ হিসাবে গণ্য করা হইবে (ট) পরীক্ষার হল হইতে উত্তর পত্র বাহিরে পাচার করিলে বা বাহির হইতে লিখিয়া আনিয়া সংযোজন করিলে অথবা উত্তর পত্রে দুই হাতের লেখা থাকিলে ১১(ট) ঐ বছরের পরীক্ষা বাতিল সহ পরবর্তী তিন বছরের পরীক্ষা হইতে বিরত রাখা হইবে "
 
That the respondents have no personal interest or ill-motive against the petitioners rather, they are their students like other ones and, as such, the Rule having no substance is liable to be discharged.
 
4. Mr. Md. Tajul Islam, the learned Advocate, appears on behalf of the petitioners while Mr. Ruhul Amin Bhuiyan and Mr. Abdul Malek, the learned Advocates, appear on behalf of the respondent Nos. 1 and 2 to oppose the Rule.
 
5. Mr. Md. Tajul Islam, the learned Advocate appearing on behalf of the petitioners, took us through the impugned order and other annexed documents/papers available on record and submits that the impugned order does not specify upon what materials the petitioners were found guilty by the respondent No. 2. The learned Advocate further sub­mits that charges so framed against the petitioners are unspecified, vague and baseless, as such, the petitioners cannot be held guilty for such unfounded charges. He further submits that neither the invigi­lators who conducted the examination in question on the date of occurrence nor the Superintendent of the Examination Hall submitted any report to the University Authority against the petitioners about the alleged allegations of slipping the answer scripts outside the Examination Hall but the disciplinary committee without making proper investigation as well as without giving chance to the petitioners of being heard, most illegally passed the impugned order debarring them from appearing in coming 3 academic years which is in clear violation of the provisions of Articles 27 and 31 of our Constitution, as such, the impugned order is liable to be set aside.
 
6. Mr. Md. Ruhul Amin Bhuiyan, the learned Advocate appearing on behalf of the respondent Nos. 1 & 2, submits that after having the answer scripts of the petitioners from the College concerned, the University Authority perused those answer scripts and found to have been replaced by sending those outside the Examination Hall. The learned Advocate further submits that the petitioners were duly asked to show cause by issuing "Kaifiat Patra" within 10 days from the issuance of the letter but the written explanations submitted by the petitioners were found to be unsatisfactory and accordingly, the authority cancelled the result of the petitioners and debarred them from appearing in the examinations for consecutive 3 years after observing all legal formalities. The learned Advo­cate further submits that the petitioners were debarred from appearing in the Honours Part-3 examinations for 3 years namely, 2001, 2002 and 2003 but by this time that period of punishment has already been elapsed, as such, the writ petition has become infructuous by efflux of time and accordingly, this Rule is liable to be discharged.
 
7. Perused the Writ petition, impugned order and other annexed documents/papers available on record. It is undisputed that the petitioners were regular students of Patuakhali Government College who appeared for Honours Part 3 Examination held in the year of 2000 under the National University. It is alleged that the result of the said examination was kept withheld by the University and after lapse of a few months a notice dated 13-1-2003 of show cause was served upon the petitioners alleging that they slipped the answer scripts outside the examination hall, got those written from outside by different hand and annexed with the main answer scripts. It is also undisputed that in reply the petitioners submitted written explanations to the university authority through the principal of their College denying all the allegations contained in the notice to show-cause and prayed for exoneration from the charge.
 
8. There is no denying that Jatio Bishshbidyaloy Parikkha Regulation, 1999 (the Regulation, in short) was made thereunder to vest all powers and responsibility in the National University to conduct all examinations fairly and properly held under it. The university authority is charged with the duty to ensure that no unfair means, illegal acts, misconducts are committed by the examinees, if such activities are found, in that event the authority will take penal actions in accordance with the provisions of the Regulation 1999. But in taking such actions, the concerned authority must give the incumbent an opportunity fairly to explain the allegations brought against him.
 
9. Regulation No. 29(10) narrates various categories of unfair means and Regulation No. 29(11) provides penalties for those misconducts. Regulation No. 29(12) empowers the authority of the University to impose any punishment on the recommendation of the disciplinary committee even where a misconduct committed by an examinee. As a matter of general principle, a Court of law does not like to interfere in the matter of imposition of punishment by the University Authority pursuant to its legal proceeding against an incumbent. But this Court will not go slow in exercising its jurisdiction under Article 102 of the Constitution if there was an error apparent on the face of the record and non-application of mind on material facts, or there was an arbitrary, or mala fide exercise of power on the part of the concerned authorities of the university.
 
10. That the relevant portion of the Kaifiat Patra (Annexure-A) against the petitioners containing allegations reads as follows:
 
"পরীক্ষার হল হতে উত্তরপত্র বাইরে পাচার করা হয়েছে/বাহির থেকে কাগজে লিখে এনে সংযোগ করা হয়েছে/উত্তরপত্রে দুই হাতের লেখা রয়েছে"
 
"From the plain reading of the aforesaid allegations, we find that the authority has brought 3 alternative charges without specifying charges against each and every petitioner. It is evident on record that the University authority was not sure as to in what manner each and every petitioner-examinee adopted unfair means in the said examination. It is further evident that neither the University Authority nor the Disciplinary Committee made an enquiry into the matter or obtained report from the Superintendent of the Examination Hall concerned in order to remove vagueness of charges so brought against the petitioner examinees.”
 
11. It appears from the impugned order dated 20-9-2003 (Annexure-C) that the university authority found as many as 20 doubtful answer scripts, which were scrutinised by the disciplinary committee and found 14 examinees (including the petitioners) guilty for adopting unfair means in the examination. It is further stated that the results of those 14 examines were cancelled and they were debarred from appearing in the examination for 3 consecutive years and the rest 6 examinees were let off from the said charge.
 
12. Although it is stated in the impugned order that the disciplinary committee considered all the relevant facts and after threadbare discussion they found the petitioners and others guilty but their mode of conduct does not throw any light of reasoning for such punitive decision.
 
13. It is apparent that the University Authority did not bring specific charges against the petitioners nor the Disciplinary Committee addressed its mind at all to find out the truth in terms of allegations against the petitioners. It is all the more important in this case that no allegation was reported against any petitioner from the Superintendent of the examina­tion hall concerned so, it can be easily held that the Disciplinary Committee passed the impugned order of punishment against the petitioner examinees without applying its judicial mind though all the careers of the students would depend on such decision. The University Authority ought to have been cautious in finding the petitioners guilty on such vague charges.
 
14. Under the above facts and circumstances, we are constrained to hold that the Rule has got substance to interfere in the impugned order.
 
In the result, the Rule is made absolute but without any order as to cost The impugned order No. জাতি: বি: পরী:/অনার্স-৩/২০০০/২০০১/২০০৩/১৮১৮ তারিখ-২০-৯-২০০৩ (Annexure-C) issued by the respondent No.1, the Controller of Examination, National University, Gazipur, cancelling the Honours Examination of year 2000 and debarring the petitioners from appearing in the said examina­tion for the next consecutive three years is hereby declared to have been passed illegally and without any lawful authority.

Ed.