-NANAYAKKARA v. UNIVERSITY OF PERADENIYA AND OTHERS

021-SLLR-SLLR-1985-V1-NANAYAKKARA-v.-UNIVERSITY-OF-PERADENIYA-AND-OTHERS.pdf


NANAYAKKARA
v.
UNIVERSITY OF PERADENIYA AND OTHERS
COURT Of APPEAL.
SENEVIRATNE. J. (PRESIDENT) AND B. E. DE SILVA. J.
C.A. APPLICATION 987/83.
OCTOBER 2, 3, 4, 5 AND NOVEMBER 16. 1984.
Certiorari and Mandamus – Suspension of student – University Council – UniversitiesAct No. 16 of 1978. sections 29 (n). 34(2). (3). (6). 44(1). 45(1 f, (2)(iii). (xviii). 131.135(1). (d) – Power of Vice-Chancellor and the University Council to maintain discipline- Compendium of Rules and Regulations, sections 1. 2, 3, 4 – Natural justice – Rightto a fair hearing.
The petitioner a final year student in the Arts Faculty of the University of Peradeniya anda resident in Akbar Hall was suspended for three years and deprived of the privileges ofhis studentship with effect from 1.7,1983 on the ground that a Committee of Inquiry toinquire into student disturbances in the University in December 1982 had found himguilty of participating in the attacks on various Halls of the University on 3.12.1982about 9.00 p.m. and committing mischief. The decision to suspend was by theUniversity Council and communicated by the Vice-Chancellor. The petitioner moved forwrits of Certiorari and Mandamus on the ground (1) that no by-laws had been made interms of the Universities Act defining what acts constitute indiscipline and whatpunishment such acts would attract and (2) the Report of the Committee of Inquiry wasinvalid because the petitioner did not have a fair hearing.
Held –
Some by-laws had been framed to regulate and provide for discipline. These werethe Compendium of Rules and Regulations of 6.7.1981. The Vice-Chancellor as theChief Executive Officer of the University and the University Council are clothed withsufficient power to deal with breaches of discipline even where they were not coveredby the Compendium. They can exercise this power in a fair manner as regardsdetermining what acts would constitute breaches of discipline and what punishmentssuch breaches should attract.
The petitioner having been taken before the Committee of Inquiry on 7.3.1983without prior notice and given time till 2.00 p.m. that day for his defence, it Cannot besaid that he had been given a fair hearing as he had not been informed of the allegationsagainst him and their nature prior to his appearance before the Committee nor given ^fair opportunity of making his defence properly. Even though he did not request it this isa case where the petitioner should have been given an opportunity to cross-examine thewitnesses who had testified against him.
Cases referred to:
De Saram v. Panditharatna [1984] 2 SLR 106.
Ram Chander Roy v. Allahabad University and Others AIR 1956 Allahabad.Andra 46.
Manoharan v. President. Peradeniya Campus, University of Sri Lanka, Vol. 1Pt.11Bar Association Law Journal Reports 45.
Ganeshanantham v. Goonewardene (1984} 1 SLR 343.
University of Ceylon v. E. F. W. Fernando (P. C.) (1960/ 61 NLR 305.
De Verteuill v. Kanaggs [1918] AC 557, 560.
APPLICATION for Writs of Certiorari and Mandamus.
Nimal Senanayake, PC. with Mrs. A. B. Dissanayake, L M. Samarasinghe and R.Jayendran for petitioner.
K. N. Choksy. P.C. with L. H N. Jayamahaand KumarNadesanfor 1 to4 respondents.
Cur. adv. vult.
April 2. 1985.
SENEVfRATNE, J. (President)
The petitioner who has filed this application on 22.8.83 was a finalyear student in the Arts Faculty of the University of Peradeniya, and aresident in the Akbar Hall. On 1.7.83 he received the letter dated
(marked 'A') from the Vice-Chancellor, H. L. Panditharatnethe 2nd respondent to this application. I shall quote the entire letter asit is material in respect of the facts pertaining to this application andthe submissions made to this Court. This letter (marked 'A'), which isin.Sinhala (translated) is as follows :
"The Council at its special meeting held on 9.6.83. considered the report of theCommittee appointed to inquire into the disturbances and mischief caused by thestudents in December 1982, and held that you have on 3rd December, 1982 at about9 p.m. participated in the attacks made on the Marcus Fernando Hall, Marrs Hall,Arunachalam Hall and other Halls, and committed mischief, and as such the Councildecided that your studentship should be suspended for 3 years with effect from
7.83. As such you should consider that the Peradeniya University premises is sprohibited premises for you. and if you are an occupant in any hostel, you should quitthe hostel before 9 a m. on 2.7.83.*
* The facts disclose that there were student disturbances in theUniversity of Peradeniya Campus from 3.12.82 to 5.12.82. duringwhich disturbances hurt was caused to certain students and damagewas caused to certain Halls of residence. On 14.12.82 the Council ofthe University of Peradeniya appointed a Committee of Inquiryconsisting of (1) C. V. Udalagama, a retired Supreme Court Judge. (2)D. J. E. Seneviratne. a retired Deputy Director of Education and (3)L. R. L. Perera. a retired Deputy Director of Agriculture (Engineering).Ex Chairman. State Engineering Corporation of Sri Lanka, who are the3rd, 4th and 5th respondents to this application. This Committee afterinquiry submitted its report on 20.3.83.In this report the Committeefound this petitioner guilty of the acts set out in the letter marked 'A',and recommended the expulsion of the petitioner from the Universityfor his conduct. The Council of the University, which considered thisreport imposed on the petitioner the punishment of suspension of hisstudentship for a period of 3 years, from 1.7.83 and prohibited himfrom entering the University premises (letter 'A'). The petitioner hasmade this appiication-
For an order in the nature of a Writ of Certiorari quashingthe orders of suspension, and other punishments set out indocument (A); and
For as issue of an order in the nature of Mandamus tocompel the 1 st and 2nd respondents to afford all facilitiesfor the petitioner to reside in the University premises, andfollow the lectures, and sit for the degree examination.
The petitioner has stated that when he received this letter ofsuspension, he had in fact duly made an application and taken all stepsto qualify to appear as a candidate in the final examination which wasto be held in 1983.
The main grounds on which the petitioner has based his applicationfall into two categories
.(1) Disciplinary powers of the Vice-Chancellor of theUniversity;
The invalidity of the Report of the Committee of Inquiry.
The grounds under (1) are :
No rules have been framed under section 29(n) of theUniversities Act No. 16 of 1978 to regulate and provide foTdiscipline, (the emphasis on the word 'regulate' is mine) ;
Section 34(6) of the said Act which states – "The
Vice-Chancellor shall be responsible for the maintenance ofdiscipline within a University", should be read with section29(a) of the said act, which provides that the Universityshall have power to "regulate and provide for the … .discipline and well being of students
The Committee has been appointed by the UniversityCouncil, the Report has been made to the Council and thepunishment has been determined by the University Council.This Act provides 'that the Vice-Chancellor shall beresponsible for the maintenance of discipline' (section34(6)); it does not enable the Vice-Chancellor to delegatehis powers regarding discipline to the Council.
The Council has no power to punish the petitioner, and anypunishment must be done by the Vice-Chancellor.
As regards (2) above, the invalidity of the report of the Committee,the grounds are that –
The petitioner did sot have a fair inquiry before theCommittee on whose report disciplinary action was takenagainst him ;
The petitioner was not irformed of the charges before theinquiry, or before his suspension from the University ;
The petitioner did not knowwho the witnesses against himwere, and what their accusations against him were ;
The Committee was biased and prejudiced against thepetitioner.
Only the 1st to 4th respondents have filed objections. Theobjections state that the petitioner's studentship and his rights as astudent were subject to the due observance by the petitioner of theyjles and regulations of the University authorities. The respondentshave filed as a document – "Compendium of the Rules andRegulations' (R3) made by the University on 6.7.81. The punishmentmeted out to the petitioner was done in the interests of discipline ofthe institution and is a reasonable one in the context of the "horridincidents and acts of violence committed". {Para 13{F)). That theUniversity authorities have acted in accordance with the provisions ofAct No. 16 of 1978 in the context of maintenance of discipline of theinstitution (Para 13 (g)). The 1st to 4th respondents have also in theobjections denied the various allegations made in the petition, andhave stated that the petitioner is not entitled to the relief he claims.The 3rd respondent the Chairman of the said Committee, C. V.Udalagama has filed an affidavit, in which he has denied the variousallegations made in the affidavit of the petitioner. The 3rd respondenthas specifically affirmed as follows "that the committee informedthe petitioner of all the allegations against him, and he was at all times
given every opportunity to exonerate himselfThe
petitioner appeared before us at about 11.00 a.m. and he informed usthat he had a lecture to attend at that hour aid wanted us to put offthe evidence for the afternoon. We readily acceded to his request andrequested the petitioner to come at 2 p.m. when his evidence wasduly recorded without any pressure or duress."
The petitioner has filed a counter afficbvit in reply to the affidavitsfiled by the 1st to 4th respondents, .'n which he has affirmed asfollows
It is absolutely false to say that I was given any opportunity ofbeing heard ;
No information was given to me of any incidents I wasconcerned in :
I was asked where I was on 3rd December. 1982 ;
I was not informed that ar inquiry had been held and if I wasaware I would have retained the services of a lawyer;
There is no record in thi minutes kept by the Committee ofInquiry that I was informed of the allegations against me ;
I was not informed of he gist of the testimony .of those whotestified against me, aed no opportunity was given to challengeor rebut this testimony
I will now refer to all the provisions in the Universities Act No. 16 of1978, which deal with the maintenance of discipline. Section 29 -deals with the powers, duties and functions of the University.
Section 29(n) is as follows :
"to regulate and provide for thediscipline and well
being of students . of the University".
The following are the sections which deal with the powers of theVice-Chancellor.
Section 34(2) is as follows :
"The Vice-ChancellorShall bethe
principal executive officerand shall be-an
ex-officiomember and Chairman of.the Council"
Section 34(3 :
"It shall b» the duty of the Vice-Chancellor, in accordance withsuch direction as may from time to time be lawfully issued to himin that behalf »y the Council, ,to ensure that the provisions of this.Act;are duly observed".
The most relevant s&tion to this application is section 34(6):
"The Vice-Chan-ellor shall be responsible for the maintenanceof discipline within> University".
The Universities Act s*ts out the powers of the Council – section44(1):
'The Council of a Uflversity ■ ■ shall be the executive bodyand the governing authority of the University and shall consist ofthe following persons :
(i) The Vice-Chancellor
Section 147 defines the ten "governing authority'- Governingauthority in relation to -…
(1) a University, means th Council of that University.
Section 45(1):-
"Subject to the provisi&s of this Act, the Council shall
exercise the powers and perftfn and discharge the duties and
functions conferred or impsed on, or assigned to the
University'.
. 45(2){iii)-
'To regulate and to determine all matters concerning theUniversity in accordance with the provisions of this Act and of
• any appropriate Instrument'.
45(2) (xviii)-
"To exercise all other powers of the University the exerciseof which is not otherwise provided for in this Act or anyappropriate Instrument’.
I will now refer to a section which is relevant to the sihmissionsmade by the petitioner under section 29(n) of this Act, whch has notbeen referred to in the course of the argument, that is section135(1)-By-laws. Section 135(1) read with 135(d) is aafollows
'By-laws rpay be made b' the governing
authority of a Higher Educational Institution in respect of all or anyof the following matters
The conditions of residence and the discipline of students'
It must be observed that this section is more reliant to the makingof By-laws regarding the maintenance of disciple of students thanthe sections referred to in course of the argument. I must emphasisethe fact that section 135(1) clearly lays down – 'that By-laws may bemade by the governing authority'. (The u'derlining is mine foremphasis). The provisions I have quoted as rgards the powers of theUniversity, the Vice-Chancellor and the Quncil of the Universityregarding the maintenance of discipline of tie students show that thepowers of the Vice-Chancellor and the twr bodies, the University andthe Council of the University are comrfementary as regards themaintenance of discipline. The most impctant argument submitted onbehalf of the petitioner was that the Vie-Chancellor though clothedwith the responsibility to maintain dis«pl»ne (section 34(6)) has notbeen given the powers to do so bythe failure on the part of theUniversity to frame regulations under ection 29(r>). The sections citedabove show that the powers of the University to 'regulate and providefor … . discipline' is vested in- oth the Vice-Chancellor and theCouncil, which is under the Act theGoverning Body.
The petitioner has over and dvr again pressed the argument thatthe Vice-Chancellor could not ex^ute his powers for the maintenanceof discipline because under sec<on 29(n), no by-laws or regulations
hav* been framed in respect of discipline. The argument was that asthere were no rules pertaining to discipline, die University students willnot krow which acts would constitute a breach of discipline, and whatwould be the punishment for such breaches of discipline. According^this argument the Vice-Chancellor (and also the Council) did not haveany ixecutive power to maintain discipline and as such what wouldprevai in the University is the law of the jungle (which presently onlynow aid then prevails in the University). Factually it is not correct tosay tha the University has not framed any Rules and Regulationspertainiig to discipline. The Respondents have filed as (R3)Compenojm of Rules and Regulations – governing the residence anddiscipline it the University framed on 6.7.81. long before the incidentwhich led o the appointment of the Udalagama Committee. Thesubmission *hat the University has not framed any Rules andRegulations implement the maintenance of discipline by theVice-Chancellc. and as such he cannot exercise such powers setdown in the /^t. was first raised in the case of De Saram v.Panditharatna (1 decided on 15.6.84, which was an application for awrit of Prohibitiei against the Vice-Chancellor of the PeradeniyaUniversity This cao was the result of disciplinary action taken by theVice-Chancellor oithe Peradeniya University against the studentSaram for disturbing the peace of the University during the period11th to 17th of July* 983, during which period also there had beenserious disturbances t the students. In that application neither partyhad produced this Compendium of Rules (R3), filed in the presentapplication, in which se*jon 1 contains rules re discipline in general,sections 2 and 3 containrules pertaining to particular matters. I havementioned (R3) for the pi$ent for this specific purpose to show thatsome rules have been fran>d for maintenance of discipline. I will dealwith (R3) more fully later.
power in a fair manner, both as regards which acts would consttutebreaches of discipline, and what punishment should be imposfd forSuch breaches without such rules and regulations having been fameduader the relevant provisions referred to above. If this reasonable Wewwas not taken the Vice-Chancelloj- cannot maintain discipline ir thisUniversity which material before this Court shows has a stidentpopulation of nearly 5,000. In De Saram's Case (supra) T. D G. deAlwis, J. has held that 'Section 29(n) of the Act does not nake itmandatory for the Council to make Regulations whereas section 34(6)positively casts the duty of maintaining discipline in the Uniersity onthe Vice-Chancellor. The failure or omission of the Cound to makeRegulations under section 29(n) of the Act cannot in my tew relievethe Vice-Chancellor of his responsibility to maintain dis4>line in theUniversity".
The case of Ram Chander Roy v. Allahabad UnivertY and Others(2) was an instance in which a student of the Alla ha ba University hadbeen punished for breach of discipline, in that he -articipated in ademonstration against the Vice-Chancellor wherhe attended itsconvocation. The relevant provision in the sta^e pertaining todiscipline in the Calendar of the Allahabad Uni^sity for the year1952-53 was as follows
'The Vice-Chancellor shall be respond6 for maintaining
discipline in the University and he shall have ? powers necessary for
the purpose'.
The contention of the Counsel for the pe*l0n6r Ram Chander Roywas that though powers had been confer^ by the statute on theVice-Chancellor these powers were ex,essed in very wide andindefinite terms and were capable of bein^xerc'sed in such a manneras to bring about discrimination not perrrsible under Article 14 of theConstitution. It was urged that no iterion was laid down fordetermining when action was needed01- maintaining discipline, or,even to determine the scope of the ord discipline'. It was further •urged that the nature and extent c*be punishment that could beawarded by the Vice-Chancellor 's n°t indicated at all and nolimitations were placed on his jvver of awarding any type ofpunishment that he desired to do'' be Court held that the powers tobe exercised for maintaining discifie must be to the extent necessaryfor achieving that object. In disc103^ matters, punishments can beof numerous types. The choice^ appropriate punishment has been
left to the Vice-Chancellor. This dicta from the above case are relevantto the submissions made in the present application regarding thepowers of discipline and punishment which the Vice-Chancellor of thePeradeniya University can exercise.
The main submission of the petitioner in this application, and that ofthe petitioner de Saram in his application was. that there were noregulations regulating the powers of discipline and disciplinarypunishment as regards the Peradeniya University, that the studentswere not aware of the acts or conduct which will be tantamount to abreach of discipline and the punishment for such. I agree with thedecision in de Saram's application that section 29{n) of the Act hasnot made it imperative that regulations regarding discipline should be.made. However, I held that whether there were regulations or not theAct empowers the University, the Vice-Chancellor (and also theCouncil) to maintain discipline in the University. As such even ifregulations have not been made it is left to the discretion of theVice-Chanceller to exercise his powers of maintaining discipline andimposing punishments for its breaches in a fair and just manner.Factually it is not correct to state th'at there are no such Rules andRegulations. The Compendium of Rules and Regulations dated 6.7.81(R3) regarding discipline has been filed by the respondents. Section
of this Compendium (R3) deals with disciplne-general andRegulation (4) is the most relevant section to this application-
Regulation 4 is as follows
'The Vice-Chancellor may, where any student is guilty of anybreach of the University Act of the Regulations made thereunder orany other Regulations or of conduct prejudicial to the good name ofthe University, or is irregular in his attendance at lectures or classesimpose any of the following punishments
A fine ;
Exclusion from common rooms or other privileges ;
Suspension from the University for a definite or indefiniteperiod ;
id) Dismissal from the University ;
Withdrawal from any University examination.
The decision taken by the Vice-Chancellor shall be placed beforethe Council'.
dated 30.6.83 which has been filed by the petitioner, shows that thereport of the Committee of Inquiry has been placed before the Councilby the Vice-Chancellor. The letter of suspension (A) has been signedby the Vice-Chancellor the 2nd respondent himself. I overrule all theobjections to the effect that neither the University nor theVice-Chancellor was clothed with the powers to exercise the duty ofmaintaining discipline which was cast on them.
In Regulation 4 the limb which is relevant to this application is the
one *or of conduct prejudicial to the good name of the
University", and among the punishments (c) and (e). The letter (A)
I must briefly refer to another submission made to the effect that theVice-Chancellor in this instance had delegated his powers ofmaintaining discipline and imposing punishment to the Council. Therehas been no such delegation. As pointed out earlier, theVice-Chancellor is also a part of the University Council as he is anex-officio member and Chairman of the Council He is also required bylaw to carry out the directions lawfully issued to him by the Council. Asregards the submission that the Vice-Chancellor had delegated hispowers pertaining to the maintenance of discipline to the Council, thelearned Counsel for the petitioner rested his case on the decision inManoharan v. President, Peradeniya Campus, University of SriLanka (3). The material on which it was held in that case that there hasbeen no delegation or a wrongful delegation of the powers of theVice-Chancellor to the President, University Peradeniya Campus isquite different from the material which is the subject matter of thisapplication. Further, it was held that the President who exercised thepowers of discipline had merely reduced himself 'to a rubber stamp ofthe inquiring body", that is the one man Committee of Inquiry that wasappointed by the University. In the present application theVice-Chancellor has not delegated any of his powers, to any person orbody.
The second ground urged by the petitioner was as regards theinvalidity of the report of the Committee of Inquiry. The submissionson this ground can be summed up as, one, that the petitioner did nothave a fair hearing before the Committee of Inquiry which has foundhim guilty of various breaches-of discipline and recommendedpunishment. According to the petitioner he had no notice whatsoeverthat the Committee was considering and inquiring into any allegationsof breaches Of discipline against him. The petitioner has set out in hisaffidavit the circumstances under which he appeared before the
Committee. He has affirmed that on 7.3.83 at about 10 a m. he wasreturning from the lecture hall in the Arts Faculty Block when he wasinformed by Daya Nikabotiya, Assistant Registrar that one Ranasinghewished to meet him in the Senate building and that he came to knovOlater that Ranasinghe was the Secretary to the Committee of Inquiryinto student disturbances. The petitioner then affirms that he believedthat it was in connection with a dramatic performance, but he was infact ushered into a room where 3rd, 4th and 5th respondents weresitting as the Committee of Inquiry, and who wanted to question him.The respondents have produced document (R2) notice of the sittingsof the Committee of Inquiry signed by one U. L. S. Ranasinghe.Secretary to the Committee and submitted that the petitioner'spretence not to know that Ranasinghe was the Secretary of theCommittee, and that a Committee of Inquiry was sitting, was a falseposition.
The University students must and ought to have known that a •Committee of Inquiry was sitting. This shows that the aboveaffirmations of the petitioner are a mere pretence. I do not call itfalsehood. The petitioner has further affirmed that when he enteredthe room the 3rd respondent informed him that he and the 4th and5th respondents were sitting as a Committee of Inquiry and wanted toquestion him. The petitioner has then stated to the Committee that hehad no intimation of the proceedings before the Commitee and wasnot prepared to submit to any questioning. The 3rd respondent,however, warned him to be present at 2. p.m. for questioning and thathe would face disciplinary action by the University if he did not attend.
As regards the petitioner's affirmation regarding the manner in whichhe was ushered before the Committee unexpectedly, neither DayaNikabotiya the Assistant Registrar, nor U. L. S. Ranasinghe theSecretary of the Committee of Inquiry, has filed a counter affidavitcontroverting these affirmations of the petitioner. In the course of theargument the learned President's Counsel for the respondents statedthat the respondents admit that the petitioner did not get a notice toappear before the Committee on 7.3.83, but was taken before theCommittee on that day and given time till 2. p.m.
In order to get a more accurate picture of how and under whatcircumstances this petitioner would have appeared before theCommittee of Inquiry, this Court called for the relevant proceedings ofthe Committee which would throw light on this matter. Learned
President's Counsel for- the respondents produced Volume II of thereport along with extracts of the relevant proceedings. Thoseproceedings show that the petitioner had in fact appeared before theCommittee on 2.3.83. (the date mentioned by the petitioner as
is an error) The proceedings of that date show that on 2.3.83at 10.30,8.01. the Committee has called a witness Dr. B. A. R. C.Jayasinghe and recorded his evidence which consists of a few linesand immediately after that is recorded the appearance of thepetitioner: The full record at this point is as follows :-'SarathNanayakkara, Faculty of Arts, Final Year. I am a resident at Akbar Hall'.After that is recorded the name of another witness LalithWijeratne – 12.00 rloon, and his evidence is recorded. There is norecord whatsoever as to the reasons why the taking of Nanayakkara's.evidence had stopped at that point, that is between’10.30 a.m. and12 noon. On the same day at 2.30 p.m. it is recorded SarathNanayakkara. Faculty of Arts, Final Year, and there is a fairlycomprehensive record of the evidence of this petitioner. The reportdoes not have any record :
That Nanayakkara applied for further.time when he was usheredin unexpectedly, and I suppose unceremoniously at 10.30a.m. ;
As to why the taking of the evidence of Sarath Nanayakkara hasabruptly stopped at 10.30 a.m. nor is there such record whenNanayakkara again appeared at 2.30 p.m. ;
That Nanayakkara was informed of the allegations that havebeen made against him by the witnesses, and what theseallegations were.
Part of the evidence of Nanayakkara recorded is in narrative form as ifNanayakkara had made that narration. But certain parts show thatquestions have been asked from him, such as the sentences whichstart as 'I deny' or 'I did not'. The best evidence that the petitionerwas informed of allegations against him would be the record of theproceedings when the petitioner appeared before the Committee inthis situation, in which the petitioner and the 3rd respondent have filedcontradictory affidavits on this aspect of the petitioner's case.
From the facts I have set out above one matter is clear, that thepetitioner appeared before the Committee without any prior noticeand unexpectedly. When the petitioner appeared before the
Committee he appeared as an 'accused' or a ‘respondent party" andnot as a witness. By then the 'Committee had decided that thepetitioner should be questioned as regards the allegations madeagainst him by the witnesses. As such the Committee was in diftybound to inform the petitioner of the allegations – 'charges' againsthim and give him every opportunity of making his defence. Any needfor haste and expediency cannot be a reason to override theseprinciples of natural justice – right to a fair hearing. As the petitionerwas appearing before this Committee on 2.3.83 not as a witness, butas a 'party respondent' or as a party "accused”-in the words ofWanasundera, J. in Ganeshanantham v. Goonewardene (4)—
"From that stage onwards such a person would be in the positionof a party, in contradiction to that of a witness, if the languagerand the analogy of Court proceedings can be adopted in thatcontext. Once the conduct of a person is the subject of the inquiry,he must be afforded all the rights and privileges of a party".
I will consider some previous instances in which a University hascalled a student before an Inquiry Committee appointed by theUniversity in respect of charges against him. In the case of theUniversity of Ceylon v. E. F. W, Fernando (Privy Council) (5) thejudgment shows that Fernando against whom the University of Ceylondecided to hold an inquiry in respect of an examination offence wasinformed by letter dated 16.5.62, of the allegations against him, andwas requested to attend a meeting of the Commission appointed forinquiry. The letter to Fernando was as follows as quoted by LordJenkins in his judgment.
'Dear Mr. Fernando,
An allegation has been made to me in writing that you had acquired knowledge of thecontent of one or more of the papers set at the Final Examination of Science, Section B.Zoology, before the date of the examination. Since this is a very serious allegationthat the allegation is sufficiently circumstantial to justify a formal inquiry.
I have therefore appointed a commissiona meeting be heldon
Wednesday, 21 st May, at 5 p.m. and that you be requested to attend. I should be gladif you would attend on this occasion
Yours sincerely.
Sgd. Ivor Jennings.Vice Chancellor.'
Manoharan's Case cited by me above was an inquiry held by a oneman Committee in 1977 into an examination offence. In the judgmentit was stated as follows
m
'The Deputy Registrar of Peradeniya Campus charged thepetitioner by letter dated 18.4.77 that he had been in possession ofpre-written notes while answering the question paper in AgriculturalEngineering on 30.3.1977
He was asked to furnish his explanation as to why he should not bepunished. In his explanation of 26.4.77 the petitioner pleaded 'notguilty'. After the explanation a Committee of Inquiry was appointed toinquire into the matter'and the Committee found the petitioner guilty.
De Saram's Case cited by me above was also the result of thedisciplinary action taken against Saram by the University ofPeradeniya. The student De Saram was suspended from the Universitypending inquiry, by letter dated 20.12.83, which letter set out thereasons for his suspension-disturbing the peace of the University-After the suspension by letter dated 16.1.84, the Vice Chancellorinformed the petitioner that he had appointed P. H. Victor Silva. B.A.(Lond.) Advocate the 3rd respondent, to inquire into the allegations ofany indiscipline and misconduct which formed the basis of the letter ofsuspension. As far as this Court is aware these are the three previouslydecided instances in which disciplinary action against a Universitystudent had resulted in a writ application being made to Court. (Thereis now.pending in this Court, due for judgment, an application for awrit of Certiorari, by a student of the University of Colombo in respectof disciplinary action taken against her by the University for anexamination offence—Application No. C. A. 853/83). In each of thesethree instances referred to by me, before the defaulting studentappeared before the Inquiry Committee, such defaulter had beenclearly informed of the allegations against him. For a fair inquiry intoallegations against any person, such a person should be clearly and inadvance informed of the allegations against him, so that he canprepare himself to meet the case against him. In this instance,Nanayakkara was on this day 2.3.83 made to appear before theCommittee of Inquiry, which the respondents have in their objectionsought to show was a high-powered Committee, without any priorinformation of the allegations against him. The allegations were soserious and grave that any finding against the petitioner wouldundoubtedly cause irreparable damage to his entire career in the
University and future prospects of life. In my view this is hardly amanner in which a student facing such serious allegations, which ifproved, would be followed by severe punishment, should be made toappear before a Committee and defend himself. Nanayakkara may tiean unruly student, but he is not one who can be presumed to knowhow to defend himself when faced with such a serious situationunexpectedly.
I will now deal with the submissions made regarding the conduct ofthe inquiry before the Committee and the complaint that the petitionerdid not have a fair inquiry. It has been held in the Privy Council case ofUniversity of Ceylon v. E. F. W. Fernando (supra) that a disciplinaryinquiry held by the University is a quasi-judicial inquiry, and that therequirements of natural justice have to be met by the procedureadopted in any given case, which must depend to a great extent onthe facts and circumstances of the case in point. This case has heldthat- in general the requirements of natural justice are – 'first, that theperson accused should know the nature of the accusation made ,secondly, that he should be given an opportunity to state his case ,and thirdly, that the tribunal should act in good faith'. It was held inthis case that as no procedure was laid down to be followed by theVice-Chancellor in this kind of inquiry in satisfying himself regarding theallegations, and as the Vice-Chancellor's function was admittedlyquasi-judicial, it was for him to determine the procedure to be followedas he thought best, but with due regard to the principles of naturaljustice.
The complaints made regarding the nature of the inquiry heldagainst the petitioner in this instance are that-
The petitioner was not given prior information of the allegationsagainst him.
I have held that there is no record made that the allegations againstthe petitioner were communicated when he was unceremoniouslyushered in before the Committee.
That the names of the witnesses who had given evidenceagainst the petitioner and the gist of their evidence were notgiven to the petitioner.
The petitioner was not given an opportunity to cross-examinethe witnesses, and such other like objections were taken.
Similar complaints had been made by the plaintiff Fernando in the saidUniversity of Ceylon v. Fernando Case {supra). The main complaint ofFernando was to the effect that the evidence including that of threcrucial witness Miss Balasingham, who gave direct evidence regardingthe examination offences committed by Fernando, was taken in hisabsence and he was not aware of the evidence led against him or ofthe case he had to meet. The 2nd complaint was that Fernando wasnot at any stage offered an opportunity to question Miss Balasinghamor any other witnesses who deposed against him. On the other handplaintiff Fernando was interviewed and questioned at length about thematter by the three members of the Commission. The Privy Councilsummed up the objections to the inquiry taken by Fernando asfollows :
'The present appeal resolves itself into the question whether thisinquiry was conducted with due regard to the rights accorded by theprinciples of natural justice to the plaintiff as the person againstwhom it was directed".
Pertaining to the requirements to observe the principles of naturaljustice in an inquiry of this nature. Their Lordships of the Privy Councilhave cited the following dicta from the case of De Verteuii v. Kanaggs
.
'Their Lordships are of opinion that in making such an inquirythere is, apart from special circumstances, a duty of giving to anyperson against whom the complaint is made a fair opportunity tomake any relevant statement which he may desire to bring forwardand a fair opportunity to correct or controvert any relevantstatement brought forward to1 his prejudice".
Their Lordships of the Privy Council have in this case consideredwhether the fact that the material witness Miss Balasingham and otherwitnesses were not questioned in the presence and hearing of theplaintiff, who consequently was not able to question them on thestatements they made, involved a violation of the requirements ofnatural justice. Their Lordships held that as Fernando was by letterdated 16.5.52 adequately informed of the case he had to meet, andthat on the evidence accepted, Fernando was informed at the twointerviews with him of the nature of the allegations made against himand given a fair opportunity to correct or contradict any relevantstatements to his prejudice, there was no prejudice to the principles ofnatural justice and the duty to hold a fair inquiry. Their Lordships of thePrivy Council then considered whether this procedure "has fallenshort" of the requirements of natural justice on the ground that theplaintiff was given no opportunity of questioning Miss Balasingham.She was the one essential witness against the plaintiff and the chargein the end resolved itself into a matter of her word against his. In TheirLordships view this might have been a more formidable objection if theplaintiff had asked to be allowed to question Miss Balasingham and hisrequest had been refused. But he never made any such request,although he had ample time to consider his position in the period often days or so between the two interviews. There is no ground forsupposing that if the plaintiff had made such a request it would nothave been granted. Their Lordships then went on to state as follows :
'It therefore appears to Their Lordships that the only complaintwhich could be made against the Commission on this score wasthat they failed to volunteer the suggestion that the plaintiff mightquestion Miss Balasingham or in other words to tender her unaskedfor cross-examination by the plaintiff. Their Lordships cannot regardthis omission, or a fortiori the like omission with respect to otherwitnesses, as sufficient to invalidate the proceedings of theCommission as failing to comply with the requirements of naturaljustice in the circumstances of the present case".
Thus, Their Lordships held against Fernando on the abovecomplaints on which he claimed that the principles of natural justicehave been violated.
I will consider the submissions made by this petitioner that in theconduct of the inquiry there was a violation of principles of naturaljustice. The Privy Council laid down in Fernando's Case (supra) thattfle general principles of natural justice in this type of quasi-judicialinquiry required –
That the person should know the nature of the accusationmade;
That he should be given an opportunity to state his case ;
That the tribunal should act in good faith.
The Privy Council has also laid down that in this type of quasi-judicialinquiry it was left to the Vice-Chancellor to determine the procedure tobe followed as he thinks best with due regard to the principles ofnatural justice.
Their Lordships of the Privy Council have laid great stress and placedimportance on the fact that Fernando had been informed of the natureof the allegation against him by letter dated 16.5.52. It was in thiscontext that their Lordships held that the fact that the witnessesMiss Balasingham and others made their statements in the absence ofFernando has not caused a miscarriage of justice in respect ofFernando.
Regarding the second principle laid down by the Privy Council that aperson should be given an opportunity to state his case, the facts Ihave set out earlier are very relevant-
la) The manner in which this petitioner was taken before theCommittee on 2.3.83 ;
The petitioner in his affidavit has denied that he was informed ofthe allegations against him when he appeared before theCommittee.
The 3rd respondent C. V. Udalagama has filed an affidavit, in whichhe affirms that the petitioner was informed of all the allegationsagainst him and was at all times given every opportunity to exoneratehimself. The record of the proceedings do not reveal the fact that the
petitioner was informed of all the allegations against him, whichappear to be those made by several witnesses. In any event, even ifthe charges were informed the petitioner has not been given sufficienttime, to prepare himself to meet the allegations. The allegationsconcerned incidents which spread for three days, 3rd December1982 to kth December 1982, in which a large number of studentshad participated. The immediate cause for the incidents was theelections to the Students Council, which were followed byprocessions held by rival parties. So that the nature of the incident inrespect of which this petitioner faced charges, cannot at all becompared to the sole charge faced by Fernando pertaining to onematter, namely that he had previous knowledge of the German part ofthe Physics paper, and further there was only one material witnessagainst Fernando – Miss Balasingham, which witness all Courtsaccepted was one of an independent kind.
Fernando's Case (supra) was one filed in the District Court ofColombo for a declaration. In the case Dr. Ivor Jennings, theVice-Chancellor gave evidence, and his evidence was that at theinquiry the plaintiff Fernando was informed of the “charge" MissBalasingham made against him and given every opportunity to makehis defence. Fernando himself has given evidence, which evidence isquoted verbatim in the judgment, and he has categorically stated thatwhen he appeared before the Commission and when he wasquestioned by a member of the Committee – Keuneman (retiredJustice of the Supreme Court) – 'I felt that she had reported that Ihave had these words in one of my books before the examination”. Sothat there vvas testimony in Fernando's case that when he appearedbefore the Commission
He had got a letter informing him of the allegations ;
And that the Commission unequivocally informed him of the"charge* made by Miss Balasingham against him and gave himevery opportunity to defend himself.
For these reasons the Privy Council held that the questioning of MissBalasingham and other witnesses in the absence of Fernando had notviolated any principles of natural justice.
I will now deal with the allegation that Fernando was not given anyopportunity to question witnesses. Their Lordships have not laid downa hard and fast rule that in this type of inquiry there was no need topermit cross-examination of witnesses, and that if it was not sopermitted, it will not be a violation of the principles of a fair inquiry.One of the points made by Their Lordships was that Fernando had notmoved to question the witnesses which he could have done, and thishas been held against Fernando. I am of the view that thecircumstances under which the petitioner in this case appeared beforethe Committee did not permit him or give him sufficient opportunity tothink over on his own and make a request for an opportunity toquestion the witnesses* Their Lordships have considered the positionwhether complaint can be made that the Commission failed tovolunteer the suggestion that the plaintiff might wish to question MissBalasingham or in other words to tender her unasked forcross-examination by the plaintiff. The ruling on that matter by TheirLordships is that the omission to do so would not be a 'failing tocomply with the requirements of natural justice in the circumstancesof the present case'.
In the present application before this court the disturbances whichwere the subject matter of inquiry by this Committee of Inquiry werethe result of the general elections held to the student bodies of thePeradeniya University. The report of the Committee (A 1) shows thatthere were several students groups. The most prominent among thesegroups were two-(1) Eksath Samavadi Shishya Peramuna (2)Samajavadi Shishya Sangamaya. The former group was consideredand known to be a pro-government group, and the latter group wasconsidered and known to be an anti-government group. Both theseShishya Peramunas were politically motivated. There was extremelybitter rivalry and antagonism at the personal, political and union levelbetween these two groups. After the elections both these groupswent in rival processions and it is in this context that the disturbancesoccurred and mischief alleged against the students caused. It is inevidence that these processions consisted of monk-students,girl-students, male students and ex-students, and that those whoparticipated in the processions were armed with stones and sticks etc.This report reveals that the groups of persons responsible for themaintenance of the discipline in the University, i.e. the wardens of theHostels and the security guards were also politically divided andpartisan, and had their own bias towards certain Shishya Peramunas.
It is in this background of bitter personal, political and union rivalry asrevealed, that the witnesses have given evidence. Hardly a witnesswho appeared before the Committee can be said to be free ofpersonal and political bias. As it was in this context that evidence hasbeen placed before the Committee, this was a very glaring instance inwhich the testimony of the witnesses, particularly the evidence ofstudents of rival Peramunas ought to have been scrutinised and testedby cross – examination. Ex parte statements made by such biasedand prejudiced witnesses would have undoubtedly caused greatprejudice to the petitioner, who was considered as a leader of theSamajavadi Shishya Sangamaya. In his own words, the petitioner hasstated as follows :
"I contested for a post in the Science Faculty Union against
Samavadis Group candidateI am a member of the present
Students Council representing the Samajavadi Students Union atthe Arts Faculty".
I hold that in the context of the material placed before this Court,this was an instance in which the Committee should have volunteeredthe suggestion that the plaintiff might wish to question the witnessesor in other words tendered the witnesses unasked, forcross-examination by this petitioner. The failure to do so has causedirreparable prejudice to the petitioner at this inquiry.
For the reasons set out above I hold that the petitioner has not had afair hearing before this Committee in that –
The petitioner has not been informed of the allegations againsthim and their nature prior to his appearance before theCommittee :
The petitioner had been on 2.3.83 suddenly and unexpectedlytaken before the Committee of Inquiry when he was returningfrom a lecture hall. In this situation the petitioner cannot beexpected to make a defence properly.
These allegations which have been affirmed to by the petitioner havenot been denied by Daya Nikabotiya, Assistant Registrar andRanasinghe referred to in the affidavit of the petitioner.
In view of the contradictory affidavits filed there is no firmevidence that the petitioner was informed of the allegationsagainst him when he appeared before the Committee as an"accused' person. In any event, there is no record that suchallegations were informed.
This is an instance in which the petitioner should have beengiven an opportunity of questioning the witnesses who hadtestified against him.
There is an allegation of bias and prejudice against the Committee. Itis not necessary for me to discuss this allegation.
The right to a fair hearing is a 'rule of universal application" and incase of administrative acts or decisions affecting the rights the duty toafford it 'is a duty lying upon everyone who decides anything". TheCourts have in general held that 'Academic disciplinary proceedingsrequired the observance of the principles of natural justice, but equallythey have refused to apply unduly strict standards provided that theproceedings are substantially fair" H.W.R. Wade – Administrative Law(5th Ed 🙂 page 501.
Judged by these tests, for the reasons given above I hold that thepetitioner has not got a fair hearing before the Committee. In the resultgrant the petitioner –
An order in the nature of a Writ of Certiorari quashing the ordersof suspension and other punishments set out in document "A";
An order in the nature of Mandamus to compel the 1 st and 2ndrespondents to afford all facilities for the petitioner to reside inthe University premises and follow lectures and sit for thedegree examination.
The application is allowed with costs.
B. E. DE. SILVA. J. – I agree.
Writs issued.