051-NLR-NLR-V-67-M.-K.-S.-SEYED-MOHAMED-SHAREEF-Appellant-and-THE-COMMISSIONER-FOR-REGISTRATION.pdf
[In the Privy Council]
Present: Lord Morris of Borth-y-Gest, Lord Guest, LordPearce, Lord Wilberforce and Lord PearsonM. K. S. SEYED MOHAMED SHAREEF, Appellant, and THECOMMISSIONER FOR REGISTRATION OF INDIAN ANDPAKISTANI RESIDENTS, Respondent
Privy Council Appeal No. 4 of 1963S. C. 132 of 1960—Citizenship Application No. G 8009IG/S
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Application there-under for registration as a citizen of Ceylon—Inquiry held by Deputy Com-missioner—Requirement of observance of principles of natural justice—Sections 3, 4 (1), 8, 10, 13, 14, 15 {3) (4) (7), 16.
The appellant made application for registration as a citizen of Ceylon underthe provisions of the Indian and Pakistani Residents (Citizenship) Act, No. 3 of1949. He produced his School Certificate to prove the fact of his uninterruptedresidence in Ceylon between 1936 and 1943. The Deputy Commissioner,who held the inquiry in terms of section 10 of the Act, heard evidence on variousdates and caused investigations to be conducted into various details in connec-tion with the application. On 15th September 1958 he refused the applicationon the ground that the School Certificate produced by the appellant was notgenuine. The finding of the Deputy Commissioner was based chiefly on areport of an Investigation Officer and upon a letter written by an Inspector ofSchools on the basis of a report made to the Inspector by some person. Thesereports were not disclosed to the appellant at the inquiry. During the wholeconduct of the inquiry the appellant was never told the details of the caseagainst the genuineness of the School Certificate and he was never given aproper opportunity of answering that case.
Held, that tho appellant was not fairly treated and that the principles ofnatural justice applicable by virtue of the provisions of section 15 (4) of the Actwere not complied with by the Deputy Commissioner.
“ The Deputy Commissioner in fulfilling his duties under the Act occupiesan anomalous position. In his position as a member of the executive he regu-lates the investigation into the matters into which he considers his duty toenquire and as an officer of state ho must take such steps as he thinks necessaryto ascertain the truth. When conducting an inquiry under sections 10, 13 or 14he is acting in a semi-judicial capacity. In this capacity he is bound to observethe principles of natural justice (section 15 (4)). In view of his dual positionhis responsibility is increased to avoid any conduct which is contrary to therules of natural justice. These principles have often been defined and it isonly necessary to state that they require that the party should be given fairnotice of the case made against him and that he should be given adequateopportunity at the proper time to meet the case against him (Ridge v. Baldwin[1964] A. C. 40). ”
LXVII—19
R 8442—1,555 (8/65)
Appeal by special leave from an order of the Supreme Court.
E. F. N. Gratiaen, Q.G., with Walter Jayawardena, for the appellant.Montague Solomon, for the respondent.
Cur. adv. vult.
June 30, 1965.[Delivered by Lord Guest]—
This is an appeal by special leave of the Board from an order of theSupreme Court of Ceylon (de Silva J.) dismissing without reasons theappellant’s appeal from an order of the Deputy Commissioner for theRegistration of Indian and Pakistani Residents (referred to hereafter as“ the Deputy Commissioner ”) dated 15th September 1958 refusing theappellant’s application for registration as a citizen of Ceylon under theprovisions of the Indian and Pakistani Residents (Citizenship) Act No. 3of 1949.
Under this Act Indian or Pakistani residents may be granted the statusof citizenship of Ceylon provided they fulfil certain residential qualifica-tions. These were'in the appellant’s case (1) uninterrupted residence inCeylon for ten years prior to 1st January 1946 and (2) uninterruptedresidence from 1st January 1946 till the date of the application for resi-dence which in the appellant’s case was 4th August 1951. Occasionalabsence for less than twelve months on any one occasion does not interruptthe continuity of residence (section 3). The application for registrationis made to the Commissioner under section 4 (1) of the Act. The procedureunder the Act is that the Commissioner refers the application for verifica-tion of the particulars to the investigating officer who makes a reportto the Commissioner. This report must be taken into considerationby the Commissioner in dealing with the application (section 8). If theCommissioner is of opinion that a prima facie case has not been establishedhe serves on the applicant a notice setting forth the grounds upon whichthe application will be refused unless the applicant shows cause withinthree months of the notice. If no cause is shown the Commissionerrefuses the application. If however cause is shown by the applicanthe may hold an inquiry (section 10). The Commissioner may alsohold an inquiry of his own motion (section 14). Provisions for inquiriesare contained in section 15. Sub-sections (3) and (4) are in the followingterms :—
“ (3) The Commissioner shall, for the purposes of any inquiryunder this Act, have all the powers of a District Court—
(a) to summon witnesses,
(&) to compel the production of documents, and(c) to administer any oath or affirmation to witwflwe*.
The proceedings at an inquiry shall as far as possible be freefreon the formalities and technicalities of the rules of procedure andevidence applicable to a court of law, and may be conducted by theCommissioner in any manner, not inconsistent with the principles ofnatural justice, which to him may seem best adapted to elicit proofconcerning the matters that are investigated.”
At the close of the inquiry the Commissioner shall either proceed as if aprima facie case for allowing an application had been made out or make anorder refusing the application (section 15 (7)). There is provision insection 16 for an appeal against an order refusing or allowing an applicationto the Supreme Court.
The appellant duly made application to the respondent for registrationas a citizen of Ceylon under section 4 of the Act. In his applicationdated 4th August 1951 he stated inter alia that he had been continuouslyresident in Ceylon for a period of ten years from 1st January 1936 to31st December 1945 and that he had been continuously resident in Ceylonfrom 1st January 1946 to the date of the application. The DeputyCommissioner gave notice to the appellant on 31st July 1956 undersection 10 (1) of the Act (then section 9 (1)) that he had decided to refusethe application unless the appellant showed cause to the contrary onvarious grounds inter alia that the applicant had failed to prove (1) thathe was resident in Ceylon during the period 1st January 1936 to 4thAugust 1951 without absence exceeding twelve months on any singleoccasion and (2) that he had permanently settled in Ceylon. The appel-lant by letter dated 25th October 1956 showed cause and asked for aninquiry. The inquiry opened on 22nd April 1957 and on various datesbetween then and 29th August 1958 the Deputy Commissioner heardevidence and caused investigation to be conducted into various detailsconnected with the application. On 15th September 1958 the DeputyCommissioner refused the application. The appellant’s appeal to theSupreme Court of Ceylon was refused by de Silva J. without reasonson 14th December 1960.
After the order of the Deputy Commissioner was made and the recordmade available to the appellant he became aware of the investigationswhich had been made by the Deputy Commissioner without his knowledge.
When the appellant gave evidence before the Deputy Commissioner on22nd April 1957 he produced his School Certificate known as a“ Q Schedule ” which was in the following terms :—
Name of School ..K, Boputuya Estate, Tamil Mixed
School.
Full Name of Pupil
Full Name of Parent .Admission number of Pupil .Age of Admission
Last standard passed inDate of Withdrawal
M. K. S. Mugamed Sharrif, NeenThurugala, Girindi Ella, Rangala.Seyed Ahamed Thamby8 Date of Admission 17.11.19358. Passed fifth standard (Vth)
f Reading X Sp. xWriting X —
L Arithmetic X —
Sgd. S. PonniahSignature of Head Teacher
1.12.1943.”
When this Certificate was produced the Deputy Commissioner, mistakenlythinking that the Certificate purported to be issued in 1943, formed theview that the freshness of the writing was suspicious and he accordinglyinitiated an investigation into the genuineness of the School Certificate.No notice of this investigation was given to the appellant. On 2ndSeptember 1957 the investigating officer sent a report to the DeputyCommissioner stating that in his opinion inter alia the Certificate wasnot a true copy of the original and that the Certificate must have beenissued sometime between 1st January 1952 and 1st September 1953.This report was in the following terms :—
“ Report on copy of School Schedule (Q)—IN0/9.C.8009jGjG
I examined the original of the Schedule Q in the Q Schedule book of theK/Bopitiya Estate Tamil School. The following is a copy of theoriginal.
Name … M. K. S. Mugahamed Sheriff
Date of withdrawal..1.12.43.
Admission number..81935.
Signature of Teacher.
It would appear from the above that the copy handed over to you isnot a true copy of the original which does not contain the date ofadmission except the year. The pupil’s age is not given nor the stan-dard passed with subjects. The Head Teacher could not have issuedthis Q Schedule on 1.12.43 because the Q Schedule leaf prior to thisgives the date of withdrawal of a student as 1.1.52 and the Q Schedulefollowing this gives the date of withdrawal as 1.9.53. Therefore heshould have issued this Q Schedule sometime between 1.1.52 and 1.9.53.
When I asked the Head Teacher for the examination Schedule Bookfrom which he would have taken these particulars he told me thatit was lost in December, 1953.
Admission and Withdrawal Register
The first 23 pages of the old admission and withdrawal register aremissing. On page 25 is a fresh registration which is not in chronologicalorder. There are two other fresh registrations on P.24 and P.37. Thisname appears on P.37, which is towards the end of the book giving theadmission No. 8 and the date of admission and withdrawal as 17.11.35and 1.12.43 respectively. It does not give the last standard passed.The writing appears to be fresh. On asking the teacher from where heobtained these particulars he said it was from the old Register whosepages are missing.”
Neither the fact that this report had been obtained nor the terms of thereport were at any time disclosed to the appellant. The Deputy Com-missioner on 19th September 1957 then requested the Director of Educa-tion to direct an officer to report on the genuineness of the School Certifi-cate. No notice was given to the appellant of the fact that thisinvestigation was being made.
The next stage in the proceedings was that the Head Teacher,S. Ponniah, who signed the School Certificate was examined on 21stSeptember 1957 at length by the Deputy Commissioner. The witnesssaid that he had issued the School Certificate in 1951 when the pupilasked for it. He stated that the documents from which the informationon the certificate was obtained had been lost. The material upon whichthe examination by the Deputy Commissioner was made was evidentlytaken from the Report of the Investigating Officer, dated 2nd September1957.
On 20th January 1958 the Director of Education wrote to the DeputyCommissioner as follows :—
“ In continuation of my letter of 2.1.58 it is reported that Q Schedulesin question have been issued under false pretexts and that they arenot genuine.”
The Deputy Commissioner did not at any stage call for the report on whichthis letter was based.
At the resumed inquiry on 18th February 1958 the appellant wasconfronted by the Deputy Commissioner with the contents of the aboveletter from the Director of Education. He persisted that he attended theThangala Girindi Ella School from 1935 to 1943. His advocate then
2*—B. 8442 (8/65)asked for the attendance of the officer who made the report, Mr. Sandara-eegaram. Before the next hearing on 29th August 1958, when the officerwho made the report gave evidence, the Deputy Commissioner had beentold on 11th April 1958 by the Director of Education that the matterwas being further investigated, and on 19th May 1958 he had received aletter from the Director of Education informing him that the Q Schedules,i.e., the School Certificates, were genuine. The Deputy Commissionerwas informed on 20th June 1958 that the further inquiries which resultedin the opinion by the Director that the certificates were genuine wereconducted by Mr. M. J. M. Mushsin, C.C.S., Assistant Secretary, Ministryof Education, Colombo. Neither the communication of 19th May 1958nor the communication of 20th June 1958 were disclosed to the appellantprior to the resumed hearing on 29th August 1958.
At this resumed hearing Mr. Sandarasegaram was examined by theDeputy Commissioner. He said that he had visited the school and thathe found by circumstantial evidence that the schedules were not genuine.He did not say what this circumstantial evidence was. He did notknow of the Assistant Secretary’s finding that the schedules were genuinebut he understood that the benefit of doubt had been given to the HeadTeacher of the School and that the officer who made the inquiry tookinto account his report and “ the meritorious record of the teacherand the documents produced of which I am unaware During thecourse of the hearing the Deputy Commissioner for the first time disclosedto the appellant the letter dated 20th January 1958 from the Director ofEducation to the Deputy Commissioner in which he stated that theQ Schedules had been issued under false pretences and were not genuine.
At the conclusion of the evidence the Deputy Commissioner read out thecorrespondence between him and the Director of Education previouslyreferred to in which the Director informed the Deputy Commissioner thatthe schedules were genuine and disclosed that the name of the officer whoconducted the inquiries was Mr. Mushsin. The Deputy Commissionerthen recorded the following addendum :—
“ Mr. Aluwihare mentions that he does not want the Head Teacherof the School called in, although he was summoned at his request as noquestions for clarification arose from the evidence of the inspector ofschools. Mr. Aluwihare does not wish to examine the applicant anyfurther
He then recalled the appellant and asked him some questions about aTemporary Residence Permit in which it was stated he was resident inCeylon since 1944.
The appellant’s advocate then handed in a statement signed embodyinghis submission on behalf of the appellant. This statement includedinter alia the following :—
“ We have to prove
residence from 1.1.36 to date of application without absencefrom the Island more than a year on any single occasion.
(1) We have produced school registers and “ Q ” Schedules, coveringthe period 1.1.36 to 1944, i.e., for 10 years period to 1946. The “ Q”Schedules were admitted to be genuine, i.e., the School Certificate. TheEducation Officer stated that if the “ Q ” Schedules were genuine, thesupplementary documents, i.e., the school register must be genuine.Even on the Inspector’s own reasoning, the school register, the genuine-ness of which he originally said was in doubt, has to be taken as genuine.The matter is now put beyond doubt by the authoritative letter of theDirector of Education which was issued after the Inspector too hadagreed ” (Sic). “ The terms of the letter are that the “ Q ” Schedulesare genuine. No qualification is mentioned. It follows that allsupplementary documents are genuine.
The appellant submitted that the order of the Supreme Court shouldbe set aside and the finding of the Deputy Commissioner quashed on theground that in the conduct of the Inquiry the Deputy Commissionercontravened the principles of natural justice. It is therefore necessary todetail quite shortly the grounds upon which he arrived at his decisionwhich were given in his order.
Having detailed the issues before him the Deputy Commissioner statedthat the report of his investigating officer impelled him to make furtherinquiries. He detailed the evidence of S. Ponniah the school teacherwho signed the school certificate which he found most unsatisfactory and“ almost confirmed the report of the investigating officer ”. He thenreferred to the report of the Director of Education that the school scheduleswere not genuine and stated that Mr. Sandarasegaram the officer whomade the inquiry confirmed the report of the Director. His order thenproceeds as follows :—
“ Before I proceed to discuss the foregoing evidence, I should refer toa subsequent letter of the Director of Education dated 19th May, 1958(folio 160) who informed me that the Q Schedules in question weregenuine. On my enquiry from the Director, I was informed by letterof 20th June, 1958 (folio 164) that the further enquiries were made bythe Assistant Secretary, Ministry of Education. I have not beeninformed of the reasons for making further enquiries on the basison which this finding was carried out. I myself might have madethe enquiry but it appeared to me that no purpose would be servedby doing so, especially in view of the reports earlier made by myInvestigating Officer and the Inspector of Schools from which I couldmyself arrive at an independent decision. In fact that was the onlycourse left to me. It appears to me from the evidence of the Inspectorof Schools (folio 174) that the decision of the Assistant Secretary,Ministry of Education, to regard the Q Schedules as genuine, wasprompted by a meritorious record of the teacher. For my part,I would not be content to abide by that decision, and as I have statedearlier, the evidence before me is sufficient to take an independentdecision."
Having considered the school teacher’s evidence further he concludedthat his story was a fabrication. He finally rejected the school schedulesproduced as not genuine and stated that the applicant had failed in hisproof of residence in Ceylon between 1936 and 1943. The other mattersin issue he determined in the applicant’s favour except that in view of hisdetermination of failure to prove residence from 1936 to 1943 he wasunable to say that the applicant was permanently settled in Ceylon.
The Deputy Commissioner in fulfilling his duties under the Act occupiesan anomalous position. In his position as a member of the executivehe regulates the investigation into the matters into which he considershis duty to enquire and as an officer of state he must take such stepsas he thinks necessary to ascertain the truth. When conducting aninquiry under sections 10, 13 or 14 he is acting in a semi-judicial capacity.In this capacity he is bound to observe the principles of natural justice(section 15 (4)). In view of his dual position his responsibility is increasedto avoid any conduct which is contrary to the rules of natural justice.These principles have often been defined and it is only necessary to statethat they require that the party should be given fair notice of the casemade against him and that he should be given adequate opportunityat the proper time to meet the case against him (Ridge v. Baldwin1).
It is against these principles that the Deputy Commissioner’s conductmust be examined. It is noteworthy that the initial suspicion engenderedin the Deputy Commissioner’s mind was ill founded. He thought theschool certificate to be dated 1.12.43 whereas 1.12.43 was expresslystated to be the “ Date of Withdrawal The freshness of the writinghad in these circumstances not the same significance. The investigationtherefore started so to speak “ on the wrong foot" with the Deputy Com-missioner entertaining an erroneous suspicion against the appellant. It isnot doubted that under section 15 the Deputy Commissioner has widepowers of inquiry and investigation not enjoyed by a judge in a civil orcriminal trial, and that he is not bound to conduct the inquiry accordingto the normal rules of evidence. But the appellant complains thatinformation which was obtained behind his back was in some cases not
111964} A. C. 40.
disclosed to him until the last moment and in others was never disclosedto him at all. Counsel for the appellant argued that it was unfair not todisclose the report of the investigating officer dated 2nd September 1957and that the report upon which the letter from the Director of Educationdated 20th January 1958 was made should have been obtained by theDeputy Commissioner and disclosed to the appellant. Their Lordshipsconsider that it would have been in accordance with normal fair conductof an inquiry that this should have been done, and what was scarcelyfair to the appellant was that the School Teacher, Ponniah, should havebeen examined or rather cross-examined by the Deputy Commissionerwho had the details of the investigating officer’s report without disclosingthis report to the appellant’s advocate.
Such procedure made it almost impossible for the appellant’s advocatewho had no direct knowledge of the terms of the report to re-examine thewitness and clear up any difficulties raised. It is also to be noted that itwas apparently never put to the witness that his report was a fabricationwhich was the conclusion ultimately reached by the Deputy Commissioner.
Their Lordships now pass to the 18th February 1958 when at theconclusion of the inquiry the appellant was confronted with the opinionof the Director of Education that the Q Schedule was not genuine. Hisadvocate not unnaturally asked that the reporter should be called to giveevidence. As a result Mr. Sandarasegaram was examined by the DeputyCommissioner on 29th August 1958 the last day of the Inquiry. In themeantime the Deputy Commissioner had received information from theDirector of Education that the Q Schedules were considered genuine,that his previous opinion was cancelled and that this was the result ofinquiries made by a senior official in the C.C.S. But Mr. Sandarasegaram’sevidence proceeded on the basis of his report that the Q Schedules werenot genuine and it was only at the conclusion of his evidence that theDeputy Commissioner read the letters from the Director of Educationto the effect that the Q Schedules were genuine. It is in the light ofthese developments that the appellant’s advocate’s statements andsubmissions have to be considered.
The impression which would naturally have been left upon his advocate,in view of the course of the proceedings, wras that the last report of theDirector of Education concluded the matter of the genuineness of theQ Schedules in his client’s favour. By the Deputy Commissioner’sfailure to point out to him that he was by no means convinced of theirgenuineness and that he proposed to rely on the superseded report ofMr. Sandarasegaram he may well have been misled into thinking that theDeputy Commissioner did not require any further argument or evidenceon this aspect of the matter. During the whole conduct of the inquirythe appellant was never told the details of the case against the genuinenessof the document and he was never given a proper opportunity of answeringthat case.
Counsel for the appellant claimed that the Deputy Commissionershould have called Mr. Mushsin to explain his reasons for concludingthat the Q Schedules were genuine. No doubt the appellant could haveasked for him to be called. But the Deputy Commissioner in holdingthe inquiry was under a duty to ascertain the truth and in any eventthe appellant’s advocate at that stage was under the impression thatMr. Mushsin’s opinion was being accepted by the Deputy Commissioner.However this may be, it is apparent from the passage from the DeputyCommissioner’s order previously quoted that he was prepared to disregardthe opinion of Mr. Mushsin without hearing his evidence and to preferthe investigating officer’s report and the evidence of Mr. Sandarasegaram,the Inspector of Schools, to the effect that the schedules were not genuine,which opinion had been cancelled by the Director of Education. In thewhole circumstances their Lordships are satisfied that the appellantwas not fairly treated and that the principles of natural justice were notcomplied with by the Deputy Commissioner.
Their Lordships must record their regret that they did not have theassistance of the reasons of the Supreme Court in dismissing the appeal,a decision reached, as they understand, after two days hearing.
It follows that the order of the Deputy Commissioner must be quashed.Their Lordships have had to consider what further orders should be made.It would not be proper in their view upon the state of the evidence to makea finding that the appellant had made out a prima facie case. It wouldhowever in their Lordships’ opinion be preferable in accordance with theusual practice in such cases, that the appellant’s application should beheard by a different Deputy Commissioner. It will of course be for therespondent to decide whether upon the existing state of the evidencehe is prepared to admit the appellant’s claim or whether a further inquiryis to take place.
Their Lordships will therefore humbly advise Her Majesty that the orderof the Supreme Court dated 14th December 1960 should be set aside,that the order of the Deputy Commissioner dated 15th September 1958should be quashed, and that the case should be remitted to the SupremeCourt for the purpose of placing de novo the appellant’s application forregistration before the respondent under the Indian and PakistaniResidents (Citizenship) Act, 1949.
The respondent must pay the appellant’s costs before the Board and theSupreme Court.
Order set aside.