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Petitioner: ZAKIR AHMAD VS Respondent: UNIVERSITY OF DACCA
P L D 1965 Dacca 122
P L D 1965 Dacca 122
Before Abdus Sattar, B. A. Siddiky, Sikaudar Ali, A. S. Chowdhury and Abu Muhammad Abdulla, JJ
ZAKIR AHMAD‑Petitioner
Versus
UNIVERSITY OF DACCA AND ANOTHER‑Respondents
Writ Petition No. 224 of 1964, decided on 7th July 1964.
(a) Government of India Act, 1915,
S. 108(2)‑Power of Chief Justice to constitute Bench of as many Judges as he thinks proper‑Unfettered, notwithstanding existence of a Rule (in Rules framed by High Court for the purpose) contrary to provisions of S. 108(2) or in absence of arty Rule‑Power remains intact in spite all subsequent constitutional changes‑Chief Justice competent to constitute Bench office Judges to hear and dispose of petition under Art. 98, Constitution of Pakistan (1962)‑Government of India Act, 1935, S. 223‑Constitution of Pakistan (1956). Art. 227‑Constitution of Pakistan (1962), Arts. 234 & 98‑‑Civil Procedure Code (V of 1908), Ss. 122 & 129‑Letters Patent (Calcutta) Cl. 36‑Rules of the High Court of East Pakistan. Vol. I, p. 253.
(b) Dacca University Ordinance (XXIII of 1961),
Ss. 4(m), 22, 33, 32(ee), 13(5) & 54‑University Ordinances under S. 32(ee) relating to conduct and discipline of students, not in existence‑Power of University to punish student for indiscipline not affected thereby Syndicate competent in terms of Ss. 21 & 22 to deal with and punish students for indiscipline Section 13(5) cannot be construed as vesting in Vice‑Chancellor sole authority to take disciplinary action against erring students‑Statutes and University Ordinance framed under old Dacca University .Act, 1920‑Provisions despite repeal of Act, available for filling up gap caused by absence of University Ordinance under S. 32 (ee) of Dacca University Ordinance, 1961 Student, however, to be givers opportunity of being heard before holding him guilty of serious indiscipline‑Dacca University Act, 1920‑East Pakistan General Clauses Act, S. 25‑Constitution of Pakistan (1962), .4rt. 98.
(c) Constitution of Pakistan (1962),
Art. 98(2)‑Word "local authority"‑Meaning ‑ University of Dacca‑Within ambit of Art.99(2)‑General Clauses Act (X of 1897), S. 3(28)‑Dacca University Ordinance (XXIII of 1961).
Where the question was whether the University of Dacca functioning under the Dacca University Act, 1961 can be called a 'local authority' within the meaning of Article 98(2) of the Constitution of Pakistan (1962) so as to make an application under the Article against the University competent.
Held that although the expression `local authority' as used in Article 98(2) of the Constitution of Pakistan has not been defined resort can be had to the definition of tie word given in the General Clauses Act, 1897. According to section 3 (28) of the General Clauses Act, "Local authority" means a Municipal Committee, District Board, fort Commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.
The definition of `local authority' in the General Clauses Act is more or less the same as the meaning of that expression appearing in Watson's Law Lexicon (page 604). The University of Dacca is a statutory body and the Governor of the Province is its Chancellor. If the provisions of the Ordinance are examined closely, it will be seen that the Chancellor is vested with substantial powers. Section 8 empowers the Provincial Government to cause an inspection to be made by such person or persons as it may direct of the University, its building, laboratories and equipments. This section further provides that the Provincial Government shall communicate to the Syndicate its views with reference to the result of any such inspection or enquiry and shall after ascertaining the opinion of the Syndicate thereon advise the University upon the action to be taken. The annual report of the University to be placed before the Chancellor and its annual accounts and balance‑sheet, which ore to be prepared under the direction of the Syndicate, have to be submitted to the Provincial Government for the purpose of audit. The control, that the Provincia'. Government has over the University, is not in any way less than the control exercised by it over municipal and other local bodies. Substantial portion of the finance also comes from the Govern ment. Regard being had to these, it is indeed difficult to see why the University cannot be called an authority which is legally entitled to or has been entrusted by the Government with the control or management of a local fund. The University substantially carries on the duties of the Provincial Government in the field of higher education. In this connection, reference may be made to clause 5 of Article 98, Constitution of Pakistan (1962) according to which the term "person" occurring in that Article includes any body politic or corporate, any authority: of or under the control of the Central Government or of a Provincial Government.
"Local authority" in this Article has been used only to point to an authority which functions within the jurisdiction of the High Court concerned and administers some public cause within specified territorial limits under a Statute. Therefore, the University of Dacca falls within the ambit of Article 98 (2).
(d) Maxim:
audi alteram partem (no man should be condemned unheard)‑Principle underlying maxim examined at length‑Principle applicable in cases of indiscipline‑Constitution of Pakistan (1962), Art. 98.
The principles of natural justice are nothing but principles of fair play and the principle of audi alteram partem is applicable even in cases of indiscipline. From the standpoint of urgency of action cases of indiscipline may be categorised under two heads. The first head will comprise those cases in which action is called for immediately in the interest of maintenance of discipline and the act of indiscipline is committed in the presence of the person empowered to take action. In‑ this class of cases issuance of a show‑cause notice will be nothing more than a meaningless formality and may as such be dispensed with without any prejudice or violence to the principle of audi alteram partem. There is however the other class of cases where action is taken by the punishing authority on the basis of information or evidence collected ex post facto. In such cases it is difficult to understand why notice to show cause should not be issued.
Where, therefore, a University student had been expelled from the University for a period of two years on the ground that he had been "found guilty of serious breach of discipline" without the student having been afforded an opportunity of being heard, it was held that it was not one of the type of cases in which for the maintenance of discipline the school teacher just boxes the ear of a student or orders his detention for an hour or expels him from the class room for the day. The action of the University in expelling the student in the circumstance was held to be illegal.
Ram Chander Roy v. University of Allahabad and others A 1 R 1956 All. 46 and Jogendra Raj Kishore v. University of Allahabad and others A I R 1956 All. 503 not approved.
University of Ceylon v. Fernando (1960) 1 All E R 631 rel.
Ex parte: Fry (1954) 2 All E R 118; R. V. Metropolitan Police Commissioner Ex parte: Parker (1953) 2 All E R 717; Faridsons Ltd. v. Government of Pakistan P L D 1961 S C 537; Tariq Transport Company, Lahore v. Sargodha Bhera Bus Scrvice P L D 1958 S C (Pak.) 437; Amolak Singh and others v. The Punjab University A I R 1957 H P 31; Ghanshyam Das Gupta and others v. Board of High School and Intermediate Education U. P., Allahabad A I R 1956 All. 539; Board of High School v. Ghanshyam Das A I R 1962 S C 1110; Province of Bombay v. Khushal Das Advani 1950 S C R 621; Dipa Pal v. University of Calcutta A I R 1952 Cal. 594; C. Das Gupta v. Bijoyranjan Rakshit A I R 1953 Cal. 212; Ridge v. Baldwin and others 1963 W L R 935 and Vice‑Chancellor, Utkal University and others v. S. K. Ghosh and others A I R 1954 S C 217 ref.
(1929) 2 K B 416 and (1954) 1 Q B 61 distinguished.
(e) Maxim:
nemo inauditus condemnari debet contumax (no one ought to be condemned without having been heard unless he is contumacious)‑Import.
The import of the principle underlying the maxim nemo inauditus condemnari debet contumax is that when a person does not appear, or is found to be otherwise defiant, in spite of notice issued to him, the authority concerned may proceed with the matter and make its decision in his absence. The maxim, however, has no application where no opportunity of being heard is afforded to a person at all.
S. R. Pal, Ahmad Sobhan, M. M. Haque, Amirul Islam, S. S. Haldar and Sultan Ahmad for Petitioner.
Maksumul Hakim, Advocate‑General and T. H. Khan for Respondent No. 1.
Asrarul Hossain and Abdul Azim for Respondent No. 2.
Dates of hearing: 25th, 26th, 29th, 30th June and 1st July 1944, .
JUDGMENT
SATTAR, J.‑The petitioner, who was at the relevant time a student of the second year M. A. Class in Economics at the University of Dacca, has obtained this rule on the respondents, namely, (1) the University of Dacca through its Vice‑Chancellor and (2) the Registrar of the University, to show cause why the notification dated the 3rd April 1964, issued under the signature of the said respondent No. 2, in so far as it relates to the expulsion of the petitioner from the University for a period of two years, should not be declared as having been made without lawful authority and as such of no legal effect, and/or why the respondent should not be directed to cancel, rescind and/or withdraw the said notification.
The petitioner's case, in short, is that while a student of the University, as stated above, he received, on or about the 7th April 1964, a cyclostyled copy of a notification dated the 3rd April 1964, under the signature of the Registrar, informing him that he was expelled from the University with immediate effect for a period of two years as he had been "found guilty of serious breach of discipline". The petitioner has challenged the legality of this action on the grounds that the University had no power to make the impugned order and that he was not given any opportunity of showing cause and/or being heard before the decision to expel him was taken.
The petition is resisted by the respondents on whose behalf an affidavit affirmed by the Registrar has been filed. In this affidavit it has been asserted that the University is in possession of evidence of serious breach of discipline by the petitioner on the 22nd March 1964, in connection with the Convocation held on that date. He took part in creating disturbance, and became violent, and started shouting slogans and asking students to leave the pandal which was set up in connection with the Convocation. The affidavit goes on to recite that when the Chancellor and the Professors came out in procession, the petitioner became aggressive and requested others to close the passage leading to the pandal so that the procession might not move. The petitioner was inciting the group to be violent and to demonstrate against the holding of the Convocation. Dr. M. Ahmad, Professor of Chemistry and Provost of the Salimullah Muslim Hall, who had been detailed on duty in connection with the Convocation, gave a full account of the happenings, including the part played by the petitioner, in the report called for from him amongst others. The deponent has further asserted that the actions of the petitioner were noticed by Dr. M. Ahmed, Provost of the S. M. Hall, and that he also recognised him, as the petitioner was a resident student of the said Hall. It is then said that the petitioner along with others shouted slogans asking the students to leave the pandal and boycott the Convocation and threw about folding chairs in a violent bid to let loose a reign of terror without paying any heed to the requests of the teachers for orderly behaviour appropriate to the solemn occasion. The deponent has then asserted that there was no necessity of serving any show‑cause notice as the petitioner was well aware of the breach of discipline committed by himself in presence of all and had thus no cause to show against the same. According to the deponent as affirmed by him in the affidavit, the University has power to take disciplinary action against students under sections 22 and 33 read with section 4 (m) of the Dacca University Ordinance, 1961, and the existing University statutes and Ordinance, which were continued in force by the said Ordinance of 1961. Reference has also been made to the Discipline Board of the University, vested with all powers to take disciplinary actions and award appropriate punishments.
An affidavit‑in‑reply has been filed by the petitioner. In this affidavit the petitioner has asserted that he was a member of the Dacca University Central Students Union and was invited in that capacity to attend the Convocation by the University. The petitioner attended the Convocation in answer to that invitation and was allotted a seat in the portion of the Convocation pandai reserved for invitees who included many of the distinguished citizens of Dacca. The petitioner was far away from the students, who attended the Convocation to receive diplomas, and it is inconceivable for him to think that there could be any report against him, as alleged in the affidavit‑in‑opposition. The petitioner has denied that he took any direct action or shouted any slogan asking the students to leave the pandal or boycott the Convocation, as has been asserted in the affidavit‑in- opposition.
This case came up for hearing before a Division Bench. Sometime after the conclusion of the hearing the Division Bench felt that as the petition raised certain points of great importance and as their decision is likely to have far‑reaching consequence, this case should be heard by a larger Bench, preferably of five Judges. The learned Chief Justice, therefore, constituted the present Bench of five Judges.
To start with, Mr. Pal has raised a preliminary objection questioning the constitution of this Bench and its authority to hear this case. He has argued under the rules framed by the High Court, the Chief Justice has no power to constitute a Special Bench of five Judges to hear a matter as the present one. 1n this connection, he has drawn our attention to the rules framed by the Court to govern the procedure in applications for directions and orders under Article 170 of the 1956 Constitution of the Islamic Republic of Pakistan (page 253 of the Rules of the High Court for East Pakistan Volume I). He has pointed out that under these rules, applications such as the present one are to be heard by a Division Bench, which means a Bench consisting of two Judges, and under rule 12, it is only when there is a difference of opinion between the Judges composing tile Division Bench that the Chief Justice can have the point decided in accordance with the provisions of clause 36 of the Letters Patent. The learned Advocate's contention is that under these rules the Chief Justice has not been given any power to constitute a Bench of five Judges to hear an application, formerly under Article 170 of the late Constitution, and now under Article 98 (2) of tile present Constitution. In this connection, he has further referred to Chapter 11 of the Rules and contended that even if the rules relating to the appellate jurisdiction of this Court can be drawn upon in the absence of any rule to govern applications under Article 98 (2), then also under the 3rd proviso to rule 1 of Chapter 11 page 6, the Chief Justice may appoint a Special Bench consisting of three Judges only on the requisition of the Division Bench. We have no hesitation to observe at the very outset that this argument has emanated from a clear misreading of the relevant rules coupled with an omission to take into account the laws governing the power of the Chief Justice to constitute Benches for the hearing of particular cases. Clause 36 of the Letters Patent provides that any function, which is directed to be performed by the High Court by the Letters Patent in exercise of its original or appellate jurisdiction, may be performed by any Judge or by any Division Bench thereof appointed or constituted for such purpose in pursuance of section. 108 of the Government of India Act. 1915. Section 108 of the Government of India Act, 1915 reads:‑
"(1) Each High Court may by its own rules provide as it thinks fit for the exercise by one or more Judges or by Division Courts constituted by two or more Judges of the High Court of the Original and Appellate Jurisdiction vested in the Court;
(2) The Chief Justice of each High Court shall determine what Judge in each case is to sit alone and what Judges of the Court, whether with or without idle Chief Justice, are to constitute the several Division Courts."
The power of the Chief Justice under subsection (2) above to determine what Judge or Judges in each case will constitute a Bench has remained intact in spite of all the constitutional changes that have taken place during the last half‑a‑century in this sub continent. Reference in this connection may be made to section 223 of the Government of India, Act, 1935, Article 227 of the late (1956) Constitution, Article 2 of the Laws (Continuance in Force) Order, 1958 (President's Post Proclamation Order No. 1 of 1958) and Article 234 of the present Constitution. The rule making power of the High Court under sections 122 and 129 of the Civil Procedure Code cannot affect this power of the f Chief Justice. It is, therefore, clear that the absence of a Rule in this regard or the existence of one contrary to the provisions of subsection (2) of section 108 of the Government of India Act, 1915, cannot affect the power of the Chief Justice to constitute a Bench of as many Judges as he thinks fit to hear a particular case. It thus appears to us to be indisputably clear that the Chief Justice of this Court has unfettered powers to constitute a Bench with as many Judges as he thinks necessary or proper to hear a particular case. We, therefore, find no substance in this contention of Mr. Pal.
The first ground, on which the impugned order has been questioned, is that since the promulgation of the Dacca University Ordinance, 1961 (Ordinance XXIII of 1961, hereinafter referred to as the Ordinance), the University of Dacca has no power to impose any punishment for any act of indiscipline. Learned Advocate has argued that it is true that under section 4(m) of the Ordinance, the University has the power to supervise and control the residence and discipline of the students of the University but since no University Ordinances have been framed under section 32 (ee), the power of punishment for indiscipline cannot be exercised. The learned Advocate seems to think that, in the absence of a University Ordinance relating to the conduct and discipline of the University and punishment for misconduct or indiscipline, the University cannot exercise the power under section 4(m). Alternatively, it has been submitted that the Syndicate, which came into being under the Ordinance in place of the Executive Council provided under the Dacca University Act of 1920, has not, at least, the power to impose the punishment, which has been awarded to the petitioner. In this connection, it has been pointed out that section 30 lays down that the Statutes framed under the Ordinance may provide for the powers and duties of the Syndicate and that as there has been no Statute framed so far after the promulgation of the Ordinance, the Syndicate could not make the impugned order. He has further contended that subsection (5) of section 13 of the Ordinance clearly indicates that the responsibility for the maintenance of discipline in the University rests with the Vice‑Chancellor, and that being so, the Syndicate was not competent to pass the order in question. In our opinion, absence of any University Ordinance or Statute, as contemplated by the Ordinance, cannot affect the power of the University to punish a student for indiscipline. Under the Ordinance, the University, is empowered to frame rules falling into three distinct categories, to wit, Statutes, University Ordinances and Regulations, and the authority to frame the same is to be found in three different provisions, namely, sections 30, B 32 and 34 respectively. We, however, fail to find any warrant in these provisions or elsewhere for the contention that the powers of the University under the Ordinance cannot be exercised unless and until rules as to their exercise are framed. On the other hand, under section 21 of the Ordinance, the Syndicate is the executive body of the University and under section 22(m) it has also been given such other powers of the University as have not been otherwise provided for by the Ordinance or the Statutes. Section 31(l) of the Ordinance lays down that the first, second and third Statutes shall be those set out in the Schedule. It would thus appear to follow clearly that in the absence of any provision in the Ordinance or in any of the said three Statutes, which were promulgated along with the Ordinance, the Syndicate is competent in terms of sections 21 and 22 to deal with, and award punishment for, acts of indiscipline on the part of students. This is not incompatible with subsection (5) of section 13 of the Ordinance, which provides that the Vice‑Chancellor shall be responsible for the discipline of the University in accordance with the Ordinance, the Statute and the University Ordinance. As, we read, it, is merely, makes the Vice‑Chancellor answerable or accountable for discipline in the University. It cannot, in our opinion, be construed as vesting in the Vice‑Chancellor to they exclusion of all other functionaries and Boards the sole authority for taking disciplinary action against the erring students) Nothing of any practical interest, however, turns on this as the impugned order appears to us to be fully justified by some other provisions, as shall be made clear presently.
Section 25 of the East Pakistan General Clauses Act provides:
"Where any enactment is, repealed and re‑enacted with or without modification, then unless it is otherwise expressly provided, any appointment, order, scheme, rule, bye‑law, notification or form made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re‑enacted, continue in force, and be deemed to have been made or issued under the provisions so re‑enacted, unless and until it is superseded by any appointment, order, scheme, rule, bye‑law, notification or form made or issued under the provisions so re‑enacted."
Moreover, section 54 of the Ordinance has expressly kept alive the power of the different punishing authorities under the Statutes and University Ordinances, framed under the authority of the Dacca University Act, 1920, so far as they are not inconsistent with the Ordinance, the Statutes and University Ordinances framed under the Ordinance. This section provides inter alia that notwithstanding the repeal of the Dacca University Act, 1920, jurisdiction or power conferred under any of the provisions under the said Act or Statutes, University Ordinances and Regulations made thereunder, so far as they are not inconsistent with the provisions of the Ordinance or Statutes and University Ordinance made under the Ordinance, shall be continued, and so far as may be, deemed to have been conferred under the Ordinance or the Statutes and University Ordinances. It is, therefore, clear that in spite of the repeal of the Dacca University Act, 1920, the Statutes and University Ordinance framed thereunder, so far as they are not inconsistent with the provisions of the Ordinance and the first three Statutes mentioned in the Schedule of the Ordinance, have remained in force and will be deemed to be Statutes and University Ordinances framed under the Ordinance. We are, therefore, to refer to all the relevant Statutes and Ordinances relating to discipline. Section 28 of the Ordinance provides that the University shall set up a Discipline Board. Under the old law there was a Board to supervise the residence, health and discipline of the students. The Discipline Board consists of the Vice‑Chancellor, the Provost, the Proctor, the Deans and two members of the Syndicate not receiving salaries from the University and elected annually by the Syndicate at the beginning of each academic session. Section 29 no doubt lays down that the constitution, powers and duties of the Discipline Board and of all other Boards of the University shall be prescribed by the University Ordinance, but in the absence of any University Ordinance framed in this regard, the powers of the Discipline Board will be the same as were enjoyed by the Board of residence, health and dis cipline to the extent they are not…
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