Date of Order . 0 . 2 0 0 6 .
Plaintiff : Kashif Anwar through Mr. Salahuddin Ahmed, Advocate.
Defendant : Aga Khan University through Mr. Qazi Faez Isa, Advocate
O R D E R
MUNIB AHMED KHAN, J., The dispute in the suit is in respect to expulsion of the plaintiff from the defendant University. According to contention of defendant, Aga Khan University (hereinafter referred to as the University), the plaintiff was charged for misconduct and an enquiry was conducted to inquire his involvement in the incident, which took place on 16.09.2004 in which one of the student Assad Aftab died due to fatal reaction of some drug and the Laboratory report confirmed presence of large quantity of opiates consistent with usage of heroin. For the said incident, FIR was registered and besides others, plaintiff was also named as one of the co accused. The defendant University with intention to take action in terms of its rules framed as “Student Code of Conduct” also proceeded, as according to it there was serious misconduct on the part of the plaintiff in terms of clause 2-j of the Code and inquiry in the matter, the plaintiff was expelled from the University by letter dated 04.05.2005.
After exhausting in-house remedies by way of filing appeal and review, the plaintiff filed suit bearing No.1293 of 2005 for Declaration, Permanent Injunction and Damages and obtained interlocutory relief whereby he was allowed to attend the classes during the pendency of the suit at his own risk and subject to final decision in the suit. Against the said order dated 02.06.2006, the University filed High Court Appeal No.243 of 2006, which was disposed of on 06.07.2006, in terms of the statement of both the parties. The relevant portion of the statement which was agreed to for future action is reproduced as under:
2. The Dean, Faculty of Health Sciences shall be at liberty to pass fresh orders affording the respondent opportunities of hearing and after providing him copies of entire material relied upon by the Dean, Faculty of Health Sciences AKU.
Pursuing the statement in HCA, University issued letter dated 29.08.2006 leveling therein charges and alongwith the said letter, cassettes of plaintiff’s recording, statement and transcripts of witnesses alongwith file of Sessions Case No. 187 of 2005 in FIR No. 261 of 2004 were also supplied. The plaintiff denied the charges and agitated that the University has failed to act in terms of its statement, which was recorded by the Court in HCA No. 243 of 2006 but notwithstanding to his agitation, the University again expelled the plaintiff by its letter dated 12.09.2006 wherein much emphasize was placed on the statement of the plaintiff and same was reproduced in the said expulsion letter. Aggrieved by the said expulsion, the plaintiff filed a contempt application in the above HCA, which was disposed of and expulsion order was set aside in the following terms:
The expulsion order is, therefore, set aside with direction to The Dean, Faculty of Health Sciences to supply to the applicant a complete copy of inquiry and investigation report alongwith all the material referred in the report within three days from today and to provide him an opportunity of hearing within 7 days and then pass an appropriate order.
The University, filed a Petition No. 495-K/2006 before the Hon’ble Supreme Court against the above order but it was dismissed with the following observations.
Be that as it may, since the proceeding before domestic tribunal are not immune from the rule of natural justice and order passed by such tribunal without adhering to this rule is corum-non-judice, therefore, we, keeping in view concept of substantial justice are not inclined to take any exception to the order of the High Court impugned in the present Petition.
After above court battle, matter was again initiated by the University by its letter dated 15.12.2006 enclosing herewith copy of Enquiry Report and other document while it was further stated that other documents were provided earlier. The plaintiff again agitated and complained that order of the High Court has not been complied with as full material was not provided to him, in reply thereof some 8 audio cassettes alongwith some transcripts were also handed over. The plaintiff by his letter dated 7th February 2007 made certain queries and asked for an opportunity to let the tape recording authenticated by an expert and to cross examine the witnesses. Besides, he also requested transcripts of statement of Furqan bin Irfan, a co-accused in the matter, whose punishment was reduced. The protest of the plaintiff continued till 26.02.2007 and thereafter he was again expelled by University by its letter dated 17.04.2007. In this expulsion letter again University relied upon statement of the plaintiff which was reproduced in it and stand taken by University was almost similar to the earlier expulsion order dated 12.09.2006, which was set aside by the court by its order dated 13.10.2006.
Mr. Salahuddin Ahmed, learned counsel for plaintiff has argued that justice has not been done with the plaintiff and has raised following specific contentions:
(i) That specific charge leveled against the plaintiff has not been proved as the plaintiff was charged by first letter dated 9th December 2004 for reported involvement in possession and use of drug in AKU Campus in terms of clause 2-j of Code of Conduct of University.
(ii) That discrimination has been committed with the plaintiff as another student Furqan bin Irfan who was charged alongwith the plaintiff and also named as co- accused in the FIR, was let off, notwithstanding the facts, that incident was one and same and the latter was found in the room of the deceased.
(iii) That University failed to comply with the direction of this court in HCA, and did not supply all the material referred to in the inquiry report.
(iv) That neither the video recording was authenticated nor the plaintiff was provided opportunity to cross examine the witnesses nor the admission relied upon by the defendant, establishes the charge.
(v) That the rule of natural justice has not been followed, as he was student of third year MBBS and even if the charge is found to have been established then punishment proportionate to the charge has not been awarded but maximum punishment of expulsion by which life of the plaintiff has been spoiled.
Mr. Salahuddin Ahmed, while arguing the above points, has pointed out several documents annexed with the Plaint. He has also argued that mandatory injunction, although has been asked for, the same can be granted even at ad interim stage. He has relied upon 1997 MLD 1304, PLD 1985 KAR 400, 1997 CLC 302 and 2003 MLD 1947. He has further argued that Award of maximum punishment without cogent reason amounts to unlawful exercise of public power and that even if a penalty is proposed, it should be in proportion to gravity of the offence. On this aspect he has relied upon PLD 1999 KAR 433 AND 2004 CLC 1029 and stated that even private educational institutions are public functionary inasmuch as they are imparting education as public duty. On the point of natural justice, he has argued that there is no hard and fast rule and the rule can be adjusted, keeping in view the requirement of every case and that following the said rule, the plaintiff would have been provided an opportunity to controvert his alleged accomplices, which has not been done. He has place reliance on 1985 SCMR 802.
On the other hand, Mr. Kazi Faiz Isa, learned counsel for the defendant has justified the action of expulsion and has argued that the University has strictly complied with the directions of this court, in HCA and has supplied entire material to the plaintiff consisting of audio cassettes containing statement of nine staff members and nine students while transcripts of one staff member and three students was provided, which situation has not been confronted and that material has even been acknowledged through a statement filed in this court during hearing just to remove any discrepancy. He submits that direction of this court was to supply the material relied upon, which has been done and that establishes involvement of the plaintiff. He specifically referred the expulsion order dated 17.04.2007 and has pointed out that while ascertaining the guilt of the plaintiff, his statement has only been relied upon, which is in the affirmation and admission and that shows that he was instrumental in procuring drug as he used his auntie’s car for carrying other students to Sohrab Goth, wherefrom heroin was purchased and brought to the AKU Campus. He further argued that the said statement of the plaintiff is in confirmation of transcript as well as in audio cassettes and plaintiff could get the video recording checked and authenticated on his own.
On the point of non-use of drug by the plaintiff, Mr. Qazi Faez Isa has stated that it does not affect the case as his act of abetment in procuring drug, does not entitle him to any relief in terms of section 56(j) of Specific Relief Act.
Learned counsel for the defendant has further argued that injunction in the matter, as prayed for, cannot be granted as that will decide whole suit. In this respect, he has relied upon 1987 MLD 124 and 2001 YLR 3030 and has further submitted that the guilt of the plaintiff has been found in domestic inquiry, conducted by non professional, therefore, it cannot be expected from them that to strictly follow each and every rule and aspect of natural justice and moreover, providing an opportunity for cross examination was not necessary when the statement of that witness has not been relied upon and that University has developed good reputation in educational circle and if such type of misconduct are ignored then it will bring a bad name to it. He has further argued that the plaintiff should assess his own statement for reaching the guilt without bothering about statement of other and about departmental reduction of punishment to Furqan bin Irfan, a co-accused and that the disciplinary committee has strictly acted in accordance with Code of Conduct of University and has taken the decision in impartial way. Learned counsel has relied upon 2000 MLD LAH 228, 2001 YLR KAR 3030, 1987 MLD KAR 124, 1982 SCMR 1084, PLD SC 151, 2001 SCMR KAR 695, 2004 SCMR 1092, PLD 1981 SC 464, PLD 2005 SC 443, 1977 SCMR 213, 2005 SCMR 961 AND 1981 SCMR 364.
After hearing the learned counsel and going through the documents relied upon, it is necessary to point out and highlight some of the documents to appreciate the arguments of the learned counsel and to give finding in the matter.
First of all basic document which is to be seen, is a letter dated 09.12.2004 wherein, first time, the allegations have been leveled in the following words.
Subsequent investigation, in-house and by police indicate you reported involvement, in possession and use of drug on Campus.
The above charge was framed, keeping in view the words in clause 2.0 (j)of Students Code, which clause is as follows:
2.0 (j) Possession, use and display of fire arms drug alcohol and other contraband items in campus at University related events.
Since the police investigation has also been relied upon in the charge, therefore, it will be pertinent to have a look on the FIR No. 265 of 2004. The said FIR is silent in respect to involvement of either of the accused while in the charge sheet / challan bearing No. 51 of 2005 there have been shown three accused including plaintiff. In column No.6 name of the witnesses have been given which contains name of four police officials and four other private persons. The name of private persons do not show any link with the staff of the University or students. In the circumstances, there appears to no similarity in charge leveled by the University and as reported in FIR. Adverting back, in continuity to the inquiry proceedings, through letter dated 4th May 2005 (after four months), the plaintiff was expelled. The said letter starts with mentioning that disciplinary committee which was assigned to investigate into the reported possession and use of contraband drug by the plaintiff at campus, has found the plaintiff guilty for the following charges (underlining by the Court).
Disciplinary Committee on the basis of evidence recorded including your statement corroborated by the statement of other student confirms and proves your involvement in the aforesaid disciplinary offence by providing assistance in procuring and bringing the contraband drugs to AKU campus thus guilty of aiding, abetting and possession of prohibited drugs. (underlining by the Court).
The above finding shows that the exact charge has not been proved as the committee was of the opinion that the plaintiff assisted in procuring and bringing contraband drugs to the campus. The disciplinary committee, on the basis of these findings has held the plaintiff guilty of assistance, which has been pointed out towards aiding, abetting and possession of drug. The above short discussion shows that even in the first inquiry the specific charge of possession and use of drug has not been established as the disciplinary committee itself did not held guilty the plaintiff for use of drug, while possession was guessed only on the basis of the committee’s approach that the plaintiff has only assisted in procuring and bringing contraband drugs to the campus. Anyhow, the above findings were set aside in HCA 243 of 2006 and fresh inquiry was held which starts with a letter dated 29th August 2006, which levels following charges.
You Kashif Anwar were involved in procuring and/or aiding / abetting in procuring illegal and banned drugs on September 15, 2004 providing a car for such purpose, that was driven by you to Sohrab Goth for purchase of drugs, and by again providing and driving the same car for transportation of the drugs that had been purchased to the University campus, being in possession of the drugs, being present when the drugs were consumed, failing to prevent or stop the consumption / use of the drugs and /or failing to report the consumption of the same which resulted in the death of Assad Aftab, not reporting the critical condition of a fellow student …. ….. …. ….. ….. .
The above charge in this letter shows that besides clause 2.0(j), mentioned in the expulsion letter dated 04.05.2005. other clause of the Code of Conduct of University i.e. clauses 1.2, 2.1 as well as clause 2.0(h) have also been mentioned which have allegedly been violated by the plaintiff. The contents of this letter shows that now the plaintiff was charged totally with different allegation to bring him within the mischief of Code of Conduct of the University. It seems that above charge has been developed by the University after recording the statement of the plaintiff and finding alleged favourable reply from that statement, charge was altogether altered whereas the basic charge was for possession and use of drug as mentioned in letter dated 09.12.2004. It is further to be seen that in the incident of death of Assad Aftab by use of drug, one committee was formed to investigate, which recorded statement of several persons, therefore, taking in view that the HCA 243 of 2006 was disposed of with the agreement that University will supply entire material relied upon in the inquiry report the plaintiff agitated that the said order of the court was not complied with as the material was not supplied, therefore, plaintiff again approached this court.
In the second finding of disciplinary committee, it again reached the decision that plaintiff was guilty and this time disciplinary committee in its letter dated 12.09.2006 relied upon clause 1.2, 2.1(e), 2.0 (h) and 2.0 (j) and rule regarding overnight stay and held that the plaintiff was guilty of the charge. This finding also shows that whatever charges were leveled by letter dated 29th August 2006 were proved under this enquiry while the disciplinary committee did not bother to look into initial charge leveled against the plaintiff and the rule to which his attention was invited by expulsion letter dated 4th May 2005. The said finding, in the second inquiry, was again set aside by this court while passing order on contempt application while emphasizing for supplying complete copy of inquiry and investigation report alongwith all material referred to in the record.
Third hearing was initiated by letter dated 15.12.2006 and by said letter University provided to the plaintiff its report and recommendation and the documents mentioned in it. The plaintiff thereafter through few correspondence, requested some additional documents, which were provided and at the time of hearing before this court there was consensus between the learned counsel for the parties that all statements recorded and transcripts of witnesses were provided. A statement in this respect was filed in court. Thereafter the plaintiff was again provided an opportunity of hearing and was expelled by letter dated 17.04.2007, against which expulsion, the plaintiff has filed this suit.
Now first of all, it is to be seen, as to what are the finding of inquiry committee in its report, the finding/recommendation are as follows:
Six students were found guilty of being involved in either purchase or procurement, use, possession, aiding and abetting in the use of contraband of drug. The following students were found guilty of the using the contra band drug at AKU Campus on the night between fifteen and sixteen of September 2004
(i) Murtaza hussain
(ii) Malick Ghazanfar
(iii) Zeeshan Ashraf
(iv) Furqan bin Irfan
It is the recommendation of the Committee, that these students be expelled from the University.
The following two students were found guilty of aiding and abetting in the procurement, possession and use of a contraband drug in AKU campus.
(i) Qazi Asad
(ii) Kashif Anwar.
The Disciplinary Committee recommends their expulsion form the University.
From the finding of the disciplinary committee it appears that strict charge of possession and use which was leveled against the plaintiff in the first letter dated 09.12.2004 has not been established but only of “aiding and abetting” which was specifically mentioned in the charge and apparently, as discussed above, was inferred from the statement of plaintiff keeping in view that plaintiff provided a car to the fellow student. The inquiry report further shows that there was two type of offenders, one who were found guilty of using contraband drug and second who were found in aiding and abetting the act. It has also come on record and during the course of arguments, which has not been rebutted by Mr. Qazi Faez Isa, that Furqan Bin Irfan, who was found involved in the first category of finding i.e. using drug was still studying in the University and his punishment was reduced, hence contention of Mr. Salahuddin Ahmed has some force that there is no consensus in the version of University in respect of charge against various persons and using statement of witnesses according to desired result. Mr. Salahuddin Ahmed has further disputed the version of the University in audio recording of some witness as there is no plausible explanation for it and thereafter switching to verbatim recording for other witnesses.
The reason by Mr. Qazi Faez Isa that recording some of the statement and none recording of other was due to mere technical problem in the device cannot be given much weight. I think the reason has no force as it is beyond expectation that organization like AKU will lack in such type of facility and will not be in a position to arrange second tape recorder immediately. It is also worth-mentioning that last order of this court was with the direction that all the material referred to in the report be supplied while Mr. Qazi Faez Isa argued that the University has complied with this order by supplying material relied upon. To me, both are different situations. The material relied upon may be beneficial to the University but material referred to may be of any help to the plaintiff, while the court has specifically ordered for supply of material referred to, therefore it seems that the above order of this court has not properly been complied with. The material in respect to Furqan bin Irfan, in all respect, is relevant to the plaintiff to assess as to what was the reason which prevailed upon the University, resulting his let off and permission to continue his study. It is also one of the aspect that the plaintiff has been requesting to authenticate the voice recorded as well as for cross examination of witnesses but same was not done while such material must have influenced the Committee and that influenced mind has been used against him. In all these circumstances and keeping in view that apparently the University has not strictly adhered to its first charge leveled by its letter dated 09.12.2004 and continued changing the same with the stages of procurement of evidence viz-a-viz the fact that although the University has relied upon police case as well but the contents of FIR and charge sheet in it need further investigation which approach has also been found weight with the trial court which has bailed out all the accused persons.
Although I appreciate the arguments of Qazi Faez Isa that in the matter of disciplinary action against a student, the University may not be required to follow strict rule of natural justice as it is to ascertain guilt of the offender in summary way, otherwise the person responsible for the management will not be able to control the students for reason that being professional educationist, they are not expected to follow strict procedure and that in the instant case statement of the plaintiff is sufficient to establish case against him. Although I agree with the learned counsel to some extent and ready to give concession in this respect but the case in hand is different as despite of directions of this court and involvement of the legal counsel at every stages, of legal proceedings the University could not mend its way. It failed to realize as to what was the initial charge leveled and why it was changed and on what ground and why the directions of the court were not complied with. From the letters issued to the plaintiff and document of inquiry, it is apparent that it was the University itself, which created complications in the case, otherwise, another would have been solved in simple way.
I have perused the authorities referred to by Mr. Faez Isa but in peculiar factual position they are not of any assistance to the University. In the circumstances and observing that the plaintiff has almost completed third year MBBS and have also studied during interim order of this court and that refusal of injunction will be murder of his carrier and that prima facie case and irreparable loss and balance of inconvenience is also in favour of the plaintiff, while the evidence in the matter will take time to enable the court to reach a decision in respect to guilt of the plaintiff viz-a-viz quantum of punishment to be awarded in the circumstances of the case, hence I allow the application and suspend impugned expulsion dated 17.04.2007 during pendency of the suit.
Samie