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Petitioner: KASHIF ANWAR others VS Respondent: AGA KHAN UNIVERSITY
Court Name: Sindh High Court Judge(s): Maqbool Baqar Title: KASHIF ANWAR others vs AGA KHAN UNIVERSITY Case No.: Suit No,511 of 2007 Date of Judgment:2012-08-15 Reported As: 2013 YLR 2294 Result: Suit decreed
JUDGMENT
JUDGMENT ' MAQBOOL BAQAR, J.---The instant suit has been filed by the plaintiff for a declaration that the plaintiff was a medical student of the Aga Khan University MBBS Programme and was entitled to continue his studies without let or hindrance from the defendant, and for orders directing the defendant to re-enter the plaintiff's name on the roll of students and allow him to proceed with this medical education and also for an order restraining the defendant from interfering with or creating any obstacle to the plaintiff's lawful continuation of his medical studies at the Agha Khan University ("AKU"). The plaintiff has also claimed damages in the sum of Rs,30 Million. 2. At the time of filing of the suit, i.e, 30-4-2007, the plaintiff was a fourth (4th) year student in the defendant's medical school. He was originally admitted in the year 2002 as part of MBBS Programme Class of 2007. The plaintiff claimed to have enjoyed a satisfactory academic and disciplinary record throughout his career at the defendant University (AKU) and was poised towards a successful career as a doctor. It is stated that in the evening of 15-9-2004, the plaintiff along with some other fourth year students, met to celebrate the end of their examination, and after driving around for a while, they went to the university campus, and that while they were sitting in a hostel room of one of the students, they were joined by few other students. However, unfortunately one of them namely Asad Aftab had a fatal reaction to some drugs and he died the next day, i.e, 16-9-2004. While chemical examination by the AKU Hospital, verified by the Sheffield Teaching Hospital, UK, confirmed the presence of a large quantity of opiates in his body consistent with usage of illicit heroin. However, the family of the deceased student alleged foul play, whereupon an F.I.R. Was registered at Police Station New Town, Gulshan-e-Iqbal. The plaintiff is also one of the accused and has been granted pre-arrest bail by the learned II Additional Sessions
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Judge, Karachi (East). On 9-12-2004, the plaintiff along with eight (8) other students, received a notice from AKU in connection with his alleged involvement in the possession and usage of drug at AKU Campus. Through notice dated 28-1-2005, the plaintiff was requested to appear before the Disciplinary Committee on 3-2-2005. The plaintiff appeared before the Disciplinary Committee. Subsequently, after a lapse of nearly five months of the initial notice, the plaintiff, vide letter dated 4-5-2005 was informed by the Dean, Medical College that his enrolment in the MBBS Programme stood terminated and he was being expelled with immediate effect. The reason advanced for the expulsion was that the statements of some students and that of the plaintiff himself proved the plaintiff's involvement in procuring and bringing the counter band drug to AKU Campus, thus guilty of aiding, abetting and possession of the prohibited drugs. It is alleged that the Disciplinary Committee did not adopt any established procedure for holding a free and fair enquiry. It is further alleged that the parents of the deceased student, Asad Aftab, were extremely influential persons, who were able to mobilise the media and the State machinery in their favour and that the plaintiff's expulsion was a result of media pressure and that the plaintiff was made a convenient scapegoat to avoid any media criticism of AKU's role in the whole affair. It is further alleged that the decision to expel the plaintiff was without any independent and neutral application of mind on the merits of the plaintiff's case. Along with the plaint is annexed an email sent by the President, AKU to Editor, South Asia Tribune and the journalist Mr. Shaheen Sehbai on 5-5-2005, and Shaheen Sehbai's email dated 2-5-2005. It is claimed that the above communication is clearly indicative of the mala fide motives of AKU for expelling the plaintiff. It is pointed out that the decision to expel the plaintiff was taken two days after Mr. Shaheen Sehbai had made enquiries from the AKU President and that only a couple of days before the stories relating to drug usage on AKU Campus were carried by various segments of the media. It is pointed out that in their anxiousness to escape any media criticism by immediately expelling the plaintiff, AKU completely ignored the fact that the plaintiff was a mere bystander to the whole affair and was not using or possessing any drugs. It is alleged that the plaintiff was deprived of an opportunity to examine any of the alleged evidence against him and was expelled on false pretexts. He was also not provided any opportunity of confronting or cross-examining the witnesses against him. The investigation report and recommendations prepared by the Disciplinary Committee were never provided to him. It is claimed that AKU took no action against the plaintiff even after the hearing before the Disciplinary. Committee and he was allowed to continue with his study until the media started making enquiries, and that on 18-4-2005 AKU sent to the plaintiff a fee invoice and accepted payment of the same on 4-5-2005 (the very date of the plaintiff's expulsion). It is alleged that the AKU's act in expelling the plaintiff was discriminatory and not in accordance with law. It is pointed out that some other students reported to be involved in the incident were not expelled. Although the Disciplinary Committee had recommended the expulsion of one Furqan Bin Irfan for his usage and possession of drugs but he was not expelled. It is further alleged that upon intimation of the above decision, the plaintiff's father sent a letter dated 9-5-2005 to AKU asking to be provided with a copy of the disciplinary proceedings against all students allegedly involved, to enable him to prepare an appeal to the AKU Provost, however, AKU refused to provide a copy of the proceedings. The plaintiff, however, filed an appeal on 9-5-2005 before the AKU Provost, wherein he specifically took the plea that he had been deprived of an opportunity to confront and explain any evidence against him and asked for a copy of any such evidence to be provided. On 1-6-2005, the plaintiff's appeal was rejected by AKU Provost through a nonspeaking order and without assigning any reason whatsoever. The review petition preferred by the plaintiff before the president, AKU was also dismissed through a non- speaking order and without assigning any reason. Consequently, the plaintiff filed Suit No,1293 of 2005 before this Court seeking, inter alia, that the plaintiff be allowed to continue with his medical education at AKU. On 2-6-2006 after full hearing of the plaintiff's application for interim injunction, a
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learned Single Judge of this Court was pleased to allow the plaintiff to continue with his medical education and attend classes at his own risk and cost during the pendency of the suit on the ground, inter alia, that the disciplinary enquiry was, prima facie, in violation of natural justice inasmuch as the plaintiff was not allowed access to all the material being used against him and was not given a proper opportunity to defend himself. It is pointed out that by the time the plaintiff was re-admitted into AKU as a result of the aforesaid injunctive order, he had already lost a full year of education. An appeal being High Court Appeal No, 243 of 2010 filed by AKU against the aforesaid order was disposed of by a Division Bench of this Court through a consent order dated 6- 7-2006. The salient terms of the consent order were that the expulsion order dated 4-5-2005 together with all subsequent orders in appeal and review by the AKU authorities stood recalled and the Dean, Faculty of Health Sciences, AKU ("the Dean") would be at liberty to pass fresh orders after providing to the plaintiff copies of the entire material relied upon by the Dean and after hearing the plaintiff. It is claimed that from the very outset, despite the recalling of the expulsion order, it was clear that the AKU never intended to let the plaintiff continue with his studies and considered his presence in the university as a merely temporary measure. And that such was clearly demonstrated by the AKU's refusal to re-validate the plaintiff's Student Identity Card and Library Card and that the letter dated 12-7-2006 sent by the plaintiff to the Dean in that regard remained unanswered. Furthermore, when the plaintiff went to the AKU Finance Department to pay his advance tuition fees for the September-December Semester, he was informed by the relevant officials that they had been instructed not to accept any payment from him and that the summary of his outstanding dues obtained by the plaintiff from the Finance Department revealed that the plaintiff had not even been re-entered on the roll of AKU students despite the recall of his expulsion order. On 29-8-2006, the plaintiff received a notice from the Dean, accusing the Plaintiff of a variety of offences and inviting him for a fresh hearing on 8-9-2006. Along with the said notice, the plaintiff was provided with three copies of audio-tape Cassettes purportedly being a recording of his statements before the Disciplinary Committee, a transcript of the said recording and documents relating to Sessions Case No 187 of 2005. It is pointed out that the allegations made against the plaintiff vide the aforesaid notice dated 29-8-2006 were substantially different from the allegations raised against the plaintiff during the original disciplinary proceedings. It is contended that, in the circumstances, according to the AKU's Disciplinary Procedure Rules, it would be necessary to have fresh investigation conducted by the Disciplinary Committee with respect to the new allegations, however, no fresh investigation was conducted. It is claimed that the plaintiff pointed out the above breach of AKU Disciplinary Procedure Rules and the rules of fairness and natural justice and that he denied all charges against him and challenged the authenticity of the purported recordings of his statement and that he also pointed out that under the AKU's Disciplinary Procedure Rules, the hearing by the Dean could only take place after the Disciplinary Committee had concluded its investigation and forwarded the outcome of the investigation and their recommendations to the Dean. However, the plaintiff was not provided with investigation report and the recommendations of the Disciplinary Committee despite the consent order of this Court requiring the Dean to provide the plaintiff with all material being relied upon by him. The Dean failed to give any appropriate response to the plaintiff's submissions and merely stated that he had already provided all the material relied upon and announced his intention to proceed with the hearing as scheduled on 8-9-2006 despite the plaintiff's request for rescheduling in the light of the issues raised by the plaintiff. It is contended that the Dean proceeded to expel the plaintiff for the second time on 12-9-2006. The plaintiff was thus constrained to file a contempt application against the Dean in the High Court Appeal No,243 of 2006. After hearing the parties, a Division Bench of this Court was pleased to hold that the Dean should have supplied the plaintiff with a copy of Disciplinary Committee's enquiry/ investigation
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report together with all material referred therein before conducting a hearing and was pleased to set aside the aforesaid expulsion order dated 12-9-2006. An appeal filed by the AKU against the aforesaid order was dismissed by the Hon'ble Supreme Court vide order dated 13-11-2006. On 15- 12-2006, the Dean issued yet another notice to the plaintiff requiring him to appear for hearing on 26-12-2006 in respect of the matter mentioned in the Dean's earlier notice dated 29-8-2006. The notice of 15-12-2006 was accompanied by a copy of the Disciplinary Committee enquiry report and recommendations. After receipt of the notice dated 15-12-2006, the plaintiff pointed out to the Dean that the material provided to him comprised only of Disciplinary Committee's enquiry report and recommendations, three audio-cassettes purportedly containing recordings of the plaintiff's statement along with the transcript thereof and certain documents relating to Sessions Case No,187 of 2005 although the Hon'ble High Court's order dated 13-10-2006 required that the plaintiff be provided with not only a complete copy of the inquiry report but also all the material referred therein. It is stated that the Disciplinary Committee had interviewed a total of 22 persons including the 12 students and 10 staff members and that, as mentioned in the enquiry report, the entire proceedings were recorded verbatim and that the conclusion of the Disciplinary Committee was based upon the statements recorded by them and as such the plaintiff was entitled to the recordings of the statements made by all persons interviewed by the Disciplinary Committee, as without the same being provided, the hearing would be in violation of Court's order and contrary to natural justice. In response to this objection raised by the plaintiff, the Dean provided the plaintiff with a further 8 audio-cassettes that only contained the .Purported statements of 9 students and 6 staff members. He also provided the purported summaries/partial transcripts of the statements allegedly recorded by a total of 3. Students and one staff member along with a document captioned 'Working of the Disciplinary Committee'. It is further stated that in complete contradiction not only to the contents of the enquiry report, but also to the document titled 'Working of the Disciplinary Committee', the Dean claimed that some of the statements made before the Disciplinary Committee could not be recorded due to technical reasons and that the technical reasons were not specified despite the plaintiff's request for elaboration. It is pointed out that the partial transcripts/summaries provided to the plaintiff were unsigned and unverified and the source upon which such summaries/ partial transcripts were based, were not specified. It is claimed that the plaintiff has repeatedly pointed out that the tape-recordings purported to be recordings of his statement are clearly tampered and further that the material that could potentially assist him in his defence is being concealed from him and that the plaintiff in the circumstances, requested that he be provided with the recordings of the entire proceedings before the Disciplinary Committee and be allowed to have the master copy of such recordings verified from an expert, but to no avail. In order to demonstrate the purported mala fides and bias allegedly harboured by AKU against the plaintiff, the plaintiff has cited certain instances, as follows:-- (i) AKU's reluctance over the past 3 years to confront the plaintiff with the material being used against, and that whatever material was provided to the plaintiff was obtained after repeated Court's orders, and still essential material was withheld, thus depriving the plaintiff a proper opportunity to clear his name. (ii) The premeditated mind of the AKU towards the plaintiff is also apparent from the fact that even after the plaintiff was re-admitted into AKU for the second time upon the orders of a learned Division Bench of this Court and the AKU's appeal before the Hon'ble Supreme Court was dismissed, the AKU authorities (while ostensibly complying with Court orders to admit him) continued to treat the plaintiff as an expelled student in their records. (iii) Thebias is also clearly demonstrated by AKU's heavy handed attempt to fail the plaintiff in his Psychiatry exam in December, 2006 despite the fact that he had met all course requirements and
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passed the exam with flying colours, Initially, the results displayed on the AKU notice board showed that the plaintiff had failed the Psychiatry exam because he had not attended 4 of the scheduled group discussions while maximum permissible absence were only two. Vide letter dated 19-1-2007 addressed to the Coordinator of the Psychiatry Department, the plaintiff pointed out that he had only missed one, group discussion and attached the signed statements of all seven fellow group members testifying to this fact. Subsequently, all of the afore-mentioned seven group mates were summoned to the office of Manager, Student Affairs and reprimanded and it was only after the plaintiff complained vociferously to the Dean, Medical College and the President, AKU of the evident bias being exhibited against him that the AKU backtracked and changed the results to show that the plaintiff had obtained a 58% pass percentage. However, even this result did not accurately reflect the plaintiff's performance and he was forced to ask for detailed break-up of his marks, and that realising the precariousness of their situation, instead of issuing a detailed break-up, the AKU administration chose to alter the marks sheet again and increased the plaintiff's marks to a 70% pass percentage. 3. By letter dated 26-2-2007, the plaintiff requested the Dean to provide him copies of all the tape- recordings of all the students and staff members interviewed by the Disciplinary Committee and he should have allowed to have the tape-recordings authenticated by an expert and he be allowed opportunity of cross-examining the students/staff members upon their statements, a transcript of his fellow student's Furqan bin Irfan's hearing before. The Dean should be provided to him along with the reasons for reducing his punishment and that the hearing in the matter should be conducted before a neutral and senior person from outside the AKU, who enjoys the respect of the medical community. 4. It was pointed that the above was necessary for him to take appropriate defence. However, the request was ignored and vide order dated 17-4-2007, the plaintiff was expelled for the third time in respect of same alleged offence. It is claimed that as a result of impugned order, the plaintiff has been put to immense mental torture and pressure, as his entire career is in danger of being destroyed and a stigma has been created around his reputation and he is not _being allowed to continue with his medical education. The plaintiff thus sought a sum of Rs,30 Million by way of general damages for the interruption of his career and the mental suffering and torture he has already undergone due to AKU's mala fide act. 5. In their Written Statement, AKU raised the following preliminary legal objections:--- (A) That the suit is barred by the principle of res judicata, as the allegations of mala fides, failing to provide an opportunity of hearing and/or purported breach of rules of natural justice are no longer available to the plaintiff, as he has, in terms of consent order passed in the High Court Appeal No,243 of 2006, agreed to be heard by the Dean, AKU. (B) That the Dean, after providing every opportunity of hearing and after providing to him copies of the entire material relied upon by the Dean, passed fresh orders expelling the plaintiff from the University and in such view of the matter, the plaintiff is estopped from alleging the same grievance in the instant suit, as those contained in the referred to earlier suit. (C) The plaintiff has no cause of action against the defendant. Admittedly the defendant acted in strict compliance of the aforesaid compromise application and order of the Division Bench of this Court. (F) The suit is not maintainable under section 15 of the Aga Khan University Order, 1983 ("the Order") (PLD 1983 Central Statutes 65). (G) The suit is not maintainable under section 42 of the Specific Relief Act, 1877, as the plaintiff has no legal character as stipulated in section 42 of the Act and, as such is not entitled to any relief. (H) The conduct of the plaintiff has been such as to disentitle him to the assistance of this Court in terms of section 56(j) of the Specific Relief Act, 1877.
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6. On the merits, it was submitted that the plaintiff was admittedly involved in transporting drugs to the University and that he went to Sohrab Goth in his car with his three friends and after purchasing drugs from a drug dealer brought the same to the University Campus. As a consequence of the consumption of the said drugs one of the quartets, namely, Asad Aftab, died. It is alleged that the plaintiff by his conduct demonstrated a callous 'disregard for human life and such a person would never attain the distinction of being a caring professional. It is alleged that the plaintiff was a principal player in the events leading to the death of Asad Aftab, as he went to Sohrab Goth in his aunt's car, which he drove and illegally brought the drugs to the University Campus. It is claimed that in the statement made by the plaintiff, the plaintiff acknowledged that the mobile cell phone of Mad Aftab was sold to destroy evidence and to protect the identity of the drugs dealer and further that he supressed the information, lied to the authorities, and only made disclosures one month after the death of Asad Aftab. It is further alleged that the plaintiff in his statement recorded before the Disciplinary Committee, admitted going to buy drugs in his aunt's car, admitted meeting with the drugs dealer, admitted bringing the drugs to the University Campus, admitted that he had been "immoral", admitted that "this is my fault" and admitted that he did not disclose the reason for Asad Aftab's critical condition. It has been denied that the plaintiff was expelled due to media pressure. It is submitted that the Plaintiff was not singled out for such punishment and that all the surviving members of the quartet, which went to Sohrab Goth for purchasing drugs i.e, the plaintiff, Zeeshan Ashraf and Qazi Asad were also expelled from the university. As regards Furqan bin Irfan, it is submitted that his punishment was reduced because admittedly he did not play any part in procuring the drugs, did not accompany the plaintiff and others to Sohrab Goth nor played any part in transporting the drugs to the University Campus. It is further stated that Furqan bin Irfan had incidentally gone to the room where drugs were being consumed and that, therefore, there were clear extenuating circumstances for reducing his sentence. As regards the allegation that the university refused to provide copy of the disciplinary proceedings against all allegedly involved students, it is submitted that the disciplinary proceedings against other students could not be provided to the plaintiff, as it may have exposed them to threats and considerable danger, just as the Disciplinary Committee proceedings against the plaintiff could not be provided to the other students. It is submitted that the plaintiff's own statements were sufficient to result in the expulsion of the plaintiff. It is submitted that in terms of the consent order passed in High Court Appeal No,243 of 2006, the plaintiff had agreed that the matter be heard afresh by the Dean and accepted the Dean's powers to pass a fresh order. It is denied that the allegation contained in the notice dated 29-8-2006 were materially different from the earlier allegations. It is claimed that the very same set of facts was the subject-matter of the referred notice dated 29-8-2006. It is contended that in case the plaintiff had any reservations about the said notice and if the same was breaking new ground, as alleged, then he should have moved appropriate application in High Court Appeal No,243 of 2006 and that in view of the fact that this was not done, the plaintiff cannot at this belated stage, allege that the nature of allegations was substantially different. It is contended that the order passed in High Court Appeal No,243 of 2006 did not require that "fresh investigation" be conducted. It is denied that the plaintiff denied authenticity of the recordings. It is claimed that all the material relied upon by the Dean and all material available with the defendant was admittedly provided to the Plaintiff and that the plaintiff was only interested in procrastinating the matter and was seeking repeated adjournments. The exchange of correspondence, as claimed by the plaintiff, was not denied. It is contended that the matter, which was heard by the Dean pertained exactly to the same matter earlier investigated by the Disciplinary Committee, which was the plaintiff's going to Sohrab Goth for buying drugs in his aunt's car, buying illegal drugs, transporting the same to University Campus in the same car, consumption of the same at University Campus and the resultant death of Asad Aftab as a consequence of using the said drugs. It is…
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