PREMARATNE v. UNIVERSITY GRANTS COMMISSION AND OTHERS

058-SLLR-SLLR-1998-V-3-PREMARATNE-v.-UNIVERSITY-GRANTS-COMMISSION-AND-OTHERS.pdf

04
Premaratne v. University Grants Commission and Others
395
PREMARATNE
v.UNIVERSITY GRANTS COMMISSION AND OTHERS
COURT OF APPEALYAPA, J„
GUNAWARDANA, J.
C.A. NO. 44/97JUNE 15, 1998JULY 03, 1998
Writ of Certiorari – Expulsion of student – University Grants Commission – Falsedeclaration – commission mechanically adopting views of Inquirer – Irregular -Rules of Natural Justice.
The petitioner had been admitted at first to the University of Sri Jayawardenapuraon the result of the GCE ‘A’ Level examination 1978, and had followed a coursein Biological Sciences. The Petitioner had sat again for the GCE ‘A’ Level 1979,and was informed that she was qualified to be admitted to the Faculty of Medicine.In her application in 1981 for admission the petitioner had made a declarationthat she had not been previously registered to follow a course of study in anyother University.
This declaration had been proved to be false by the Inquirer in his Report of4.7.1988 and the respondent had in execution of the recommendation expelledthe petitioner. However by letters of 22.11.1994 and 27.01.1995, the respondenthad rescinded that decision but had withheld the publication of the results of theMBBS Final examination 1987. The petitioner sought a writ of certiorari to quashthe decision to cancel the petitioner’s Registration as a student of the Universityof Ruhuna where she had been following a course in Medicine and a writ ofCertiorari to compel the respondents to release the 1987 MBBS Final Examinationresults for which examination the petitioner had sat in July, 1987.
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Held :
It is observed that there is no prohibition against sitting for GCE ‘A1 Levelexamination on a second time even after securing admission to a faculty,if the rule that a student once admitted to any faculty cannot change thecourse of study is to be rationally enforced, then there ought also to havebeen a rule barring a student from sitting for the GCE ‘A’ Levelexamination once the student had entered a faculty.
The first respondent commission had acted as if the recommendation ofthe Inquirer was binding and it had no discretion whatever to decide onthe appropriate punishment. The UGC a statutory body entrusted with thepower or the discretion under the University Act should have addresseditself independently to the matter for consideration.
The 1st respondent Commission should have given the petitioner anopportunity to show cause why the inquirer’s recommendation should notbe implemented in all its rigour not only because the imposition or otherwiseof a punishment was a statutory duty cast exclusively on the Commissionbut also because the Inquirer himself had not taken into consideration anyof the mitigating circumstances or attached any weight to them.
Per Gunawardene, J.
“Thine eye shall not pity: but life shall go for life, eye for eye, tooth fortooth, hand for hand, foot for foot – does not represent the perfect systemof justice, a perfect system of punishment is based on neither theretribute nor the deterrent principle excluding but is the result of acompromise between them.”
Court can interfere by certiorari if punishment is altogether exercise andout of proportion to the occasions. Punishment in itself is an evil and canbe justified only as the means of attaining greater need, retributions initself is not a remedy for the mischief of the offence but an aggravationof it.
CA
Premaratne v. University Grants Commission and Others
(U. De Z. Gunawardana, J.)
397
Per Gunawardena, J.
“Justice must not only be seen to be done by any trier of fact or inquirerbut it must also be seen to be done on a rational basis.”
APPLICATION for writs in the nature of Certiorari/Mandamus.
Cases referred:
Herring v. Temptement – 1973 3 All ER 569.
R v. Manchester Metropolitan University ex parte Nolan.
1911 AC 179.
R v. Barnsley exp. Hook – 1976 1 WLR 1052.
R v. Intervention Board for Agricultural Produce – 1986 2 All ER.
Dharmapala Senaratne with Upul Gunaratne for petitioner.
P. G. Dep, DSG for respondents.
Cur. adv. vult.
December 17, 1998.
U.De Z. GUNAWARDANA, J.
This is an application made by the petitioner for: (i) a Writ of Certiorarias against the 1-3 respondents; ie (1) University Grants Commission;(2) Vice-Chancellor, Ruhunu University, (3) Ruhunu University,respectively to quash the decision made by the 1st respondent (thedate on which the said decision was made cannot be discoveredfrom the material available to the court but the petitioner had beeninformed of the decision by letter dated (02.09.1988) to cancel thepetitioner’s registration as a student of University of Ruhunu at whichUniversity she had been following a course of study in medicineleading up to the degree in that discipline;
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(ii) a writ of mandamus to compel the 1-49 respondents to releasethe results of the MBBS final examination for which examination thepetitioner had sat in July, 1987.
The petition whereby the said application has been made to thiscourt is somewhat untidily drafted in that it is wanting in clarity.Although Certiorari and Mandamus had been prayed for in theundated amended petition as against “the respondents” – therebymeaning all 49 respondents, it became clear at the hearing beforeus that if the Court decides to grant relief, the Writ of Certiorari hasto be granted only as against the 1st respondent because it was the1st respondent that had made the decision to revoke the petitioner’sregistration as a student or rather it would be more correct to say,as would be clear from the sequel, that the 1st respondent merelyimplemented the decision or the recommendation of the inquirer thatthe petitioner should be compelled to withdraw from the RuhunuUniversity. Further it is unclear from the averments in the petition ofthe petitioner as to who or which authority had withheld the publicationor announcement of the results of the MBBS final examination andat the argument before us it was submitted that it was the 2nd to49th respondents, rather the senate of the 3rd respondent-universitymembers thereof being added as 4th to 49th respondents that hadrefused to release the results. If that is so. Mandamus if at all, hasto be directed as against the 2nd to 49th – the 2nd respondent beingthe Vice-Chancellor of the Ruhunu University which is cited as the3rd respondent. But it was felt at the hearing that if the court decidesto grant the relief, since the 1st respondent, ie the University GrantsCommission was in over-all control of the affairs of the University inquestion, it was best, if not prudent, to grant the Writ of Mandamusas against the 1st respondent as well – so that all technicalities orimpediments that may or may not arise – can be swept out of theway.
The background facts relevant to this application are as follows:
CA
Premaratne v. University Grants Commission and Others
(U. De Z. Gunawardana, J.)
399
It would appear that if the allegations against the petitioner havea factual basis and the findings of the inquirer are correct – thepetitioner had been, at first, admitted to the university of SriJayawardanapura on the results of the GCE Advanced Level exami-nation held in the year 1978 and she had followed a course of studyin Biological science thereat. It has now become clear that the petitionerhad entered, assuming that she did so, the faculty of Biological scienceat the above-mentioned University not really through choice but ratherunder compulsion – so to speak because she had not securedsufficient marks to enter the medical faculty which marks must behigher than the marks necessary to qualify for admission to the facultyof the biological science.
The petitioner had sat again for the GCE Advanced Levelexamination in the year 1979 but it was several months later thatshe was apprised by the authorities concerned that she was qualifiedon the basis of those results to be admitted to the faculty of medicine.The petitioner had conceded that she sat for the GCE Advanced Levelexamination in the year 1978 although she repelled the allegation thatshe was previously registered as a student at Sri JayawardanapuraUniversity to follow a course in Biological science. In her applicationfor university admission (1980) which application was dated 5.2.1981,the petitioner had made a declaration in cage 14 that she had notbeen previously registered to follow a course of study in any otherUniversity. It was on the basis that the declaration had been provedto be false, as had been held by the inquirer in his report dated04.07.1988, that the 1st respondent, ie University Grants Commissionhad in execution of the recommendation of the inquirer expelled thepetitioner.
If there had been a way of knowing on the very day that the resultsof the GCE Advanced Level examination held in 1979 or shortlythereafter in the year 1979 (for which examination the petitioner hadsat for the second time in that year, ie 1979). This situation in whichthe petitioner found herself could well have been avoided. The
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procedure according to which, although the results of an examinationare released but yet, the candidate would be kept in the dark as towhether he/or she was qualified to be admitted to the particular facultyto which he/she desires to be admitted has nothing much to commendit. It is to be observed that although the results on which the petitionerwas eventually admitted to the faculty of medicine had beenannounced on 12.10.1979, yet she had been informed of her eligibility(upon the basis of the said results) to be admitted to the medicalfaculty very much later, ie several months later although the exactdate had not been made known to us.
It is to be observed that the allegation against the petitioner wasthat petitioner had been registered as a student of the University ofSri Jayawardanapura to read for a degree in Biological science on15.10.1979, on the basis of the results of the GCE Advanced Levelexamination held in the year 1978 which fact the petitioner had(allegedly) fraudulently omitted to disclose in her application dated
made for admission to the University. In fact, in herapplication dated 5.2.1981 made on the basis of the results of GCE(Advanced Level) Examination held in 1979 the petitioner had madea declaration that she had not been previously registered at any otherUniversity and it was, as stated before, on that application whichcontained that allegedly false declaration that she had been chosento be admitted to the faculty of medicine. What I am seeking to pin-point is this: that is, if the petitioner had known on the very day thatthe results of the GCE Advanced Level examination held in the year1979 were released, ie on 12.10.1979 that she was qualified to beadmitted to the faculty of medicine – she wouldn’t have allegedly gotherself registered two days later, ie on 15.10.1979 to follow a coursein Biological science on the basis of the results of the GCE AdvancedLevel examination held in the year 1978. It was somewhat of a queersituation. It is not the case that the petitioner acquired the qualificationto be eligible for admission on a date later than 12.10.1979 on whichdate the results (of the GCE Advanced Level examination held in 1979)which qualified her or made her eligible for admission to the faculty
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Premaratne v. University Grants Commission and Others
(U. De Z. Gunawardana, J.)
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of Medicine were released; although she was later held or found tobe qualified on the self-same results that were in fact released on12.10.1979 to be admitted to the medical faculty – yet she did notknow of it till after she got herself admitted to faculty of Biologicalscience assuming of course, that she had done so. This is one ofthe mitigating circumstances that deserved or rather demandedconsideration in favour of the petitioner but which had not been takeninto the reckoning at any level or stage by those who were instrumentalin imposing the punishment of getting the petitioner to withdraw fromthe faculty of medicine for life or for ever. It is, by no means, rationalconduct on the part of the authorities concerned to permit a studentto sit for the GCE Advanced Level examination – a second time andyet impose a prohibition against the student seeking admission to thefaculty of the student’s choice on the better performance at the later(subsequent) examination. It is to be observed that there is no prohibitionagainst sitting for the GCE Advanced Level examination on a secondor a third occasion – even after securing admission to a faculty inthe University. If the rule that a student once admitted to any facultycannot change the course of study is to be rationally enforced, thenthere ought also to have been a rule barring a student from sittingfor the GCE Advanced Level examination once the student hadentered a faculty. It may be said, in passing that, as there is no suchrule it is unreasonable to prohibit a student from changing the courseon the basis of better results obtained at a subsequent examination.It is not to be forgotten that at the inquiry into the matter as to whetherthe petitioner had made a false declaration in the application dated
referred to above, the personal file of the petitioner was notforthcoming from the Sri Jayawardanapura University, as it shouldhave, if the petitioner had been, as alleged, previously registered asa student at the Sri Jayawardanapura University.
It is also worth noticing that the 1st respondent, who had takenthe decision or rather it is more correct to say had mechanicallyadopted the recommendation of the inquirer that the petitioner beexpelled from the faculty of Medicine indefinitely or for life, had in
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fact, rescinded that decision, as evidenced by letters dated 22.11.1994(P3) and 17.1.1995 (P4), to expel the petitioner and even commu-nicated that decision, to reinstate the petitioner, to the 2nd and 3rdrespondents by the aforesaid letters. But the 3rd respondents, to putit more accurately its senate, yet persists in withholding the publicationof the results of the MBBS final examination for which the petitionerhad sat in July, 1987.
The learned Deputy Solicitor-General who appeared for the re-spondents, conceded that the 3rd respondent, ie Ruhunu Universitywas not empowered to do so, ie to withhold the results, by any ruleas such and was not entitled to persist in refusing to release theresults, more so, as the 1st respondent, ie the University GrantsCommission which body alone had the power to cancel the registrationof the student, had rescinded its previous decision, if it can be calleda decision made by the 1st respondent, to expel the petitioner, foras pointed out earlier, the 1st respondent had merely given effect tothe recommendation of the inquirer (in to the matter as to whetherthe petitioner had made a false declaration in her application dated
for admission to the University) that the petitioner be excludedfor ever from the course of study in medicine which the petitionerhad been pursuing at the Ruhunu University. In fact, the petitionerhad even sat for the MBBS final examination when this drasticpunishment was meted out to her. As the 1st respondent, ie theUniversity Grants Commission, as pointed out by the Deputy Solicitor-General had on 21.11.1994, rescinded the previous decision to expelthe petitioner – the petitioner automatically thereby acquired the rightto compel the 2nd and to 49th respondents to make her (petitioner’sresults known or released to her as the petitioner must now, ie afterthe rescission of the previous decision by the 1st respondent expellingthe petitioner be treated as a lawful or rightful student of the 3rdrespondent University. In fact, the learned Deputy Solicitor-General,very properly, conceded that 2nd and 3rd and 4-49 respondents-4th-49th respondents being members of the senate of 3rd respondentUniversity – have no right – now that the 1st respondent had revoked
CAPremaratne v. University Grants Commission and Others
(U. De Z. Gunawardana, J.)403
the decision expelling the petitioner to persist in their refusal torelease to the petitioner the results of the relevant examination.
In this case, the 1st respondent, ie the University GrantsCommission in expelling the student (petitioner) pursuant to, ratherin execution of the recommendation of the inquirer (who investigatedthis matter) had acted as if without thought, that is, mechanically. Itis the 1st respondent under the University Act, No. 16 of 1978, whohad the power, if at all, to impose the punishment and not the inquirerwho had been appointed by the 1st respondent. Although the inquirermay, perhaps, make a recommendation with regard to the matter ofpunishment the main matter that had been investigated by him (theinquirer) being whether the declaration, of the petitioner in herapplication for admission to the University which application was dated5.2.1981, to the effect that she had not been previously registeredas an internal student to follow a University course was false or not.
Perhaps, the most obnoxious of the features from the standpointof the law. In the proceedings against the petitioner which culminatedin her expulsion was the defect inherent in the procedure (adoptedby the 1st respondent) in that the 1st respondent had mechanicallyadopted and implemented the view or rather the recommendation ofthe inquirer that the petitioner should be expelled from the facultyof Medicine for ever or indefinitely. Of course, considerations ofpractical convenience may justify the entrustment of the powers ofthe 1st respondent, to the inquirer, to conduct an investigation andmake recommendations as to the ultimate decision to be taken. Butthe 1st respondent, ie the University Grants Commission, being thestatutory body entrusted with the power or the discretion under theUniversity Act, should have addressed itself independently to thematter for consideration, viz whether the punishment should be sodrastic as that recommended by inquirer. Needless to say that theinquirer was not empowered under the Universities Act to issuedirections to the 1st respondent; nor was the first respondent – a
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subordinate element in an administrative “hierarchy” – in relation tothe inquirer. As such the inquirer couldnl give instructions which werebinding on the 1st respondent and, in fact, no such instructions hadbeen – given for the inquirer had merely made a recommendationwith regard to the matter of punishment although the 1st respondent,ie the University Grants Commission, had acted as if the recommen-dation was binding and that the 1st respondent, ie the UniversityGrants Commission, had no discretion whatever to decide on theappropriate punishment. It is worth reiterating that the question ofmaking a decision in regard to the punishment and whether, in fact,a punishment was called for were all matters that fell exclusively withinthe purview of the powers if not the duty of the 1st respondent. Theterms of the letter dated 2.9.1988 (P1) containing, as it did from thestandpoint of the petitioner, the “unpleasantest words that ever blottedpaper” – whereby, the 1st respondent had informed the petitioner thatshe had been expelled, be it noted, “in compliance with therecommendation of the inquirer” places the matter beyond controversy,that the 1st respondent had in imposing the punishment of expellingthe petitioner from the University, veritably acted under dictation ofthe inquirer.
That the 1st respondent had signally failed to bring its mind orjudgment to bearer on the question of punishment, as was its inviolableduty to have done – the 1st respondent being the body on whichthe power to regulate admission of students had been statutorilyconferred – was manifested strangely enough by (P1) itself wherebythe 1st respondent had informed the petitioner that it, ie the UniversityGrants Commission had, in accordance with the recommendation ofthe inquirer expelled the petitioner. It would be illuminative of the pointI am seeking to explain if I reproduced, in extenso P1, referred toabove, which is as follows:
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Premaratne v. University Grants Commission and Others
(U. De Z. Gunawardana, J.)
405
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The terms of the letter P1, reproduced above verbatim, isexplanatory, more than anything else, of the fact that the 1strespondent, viz the University Grants Commission had done nothingelse than to have mechanically, that is, in regulation manner, so tospeak, carried into effect the recommendation of the inquirer, as ifthe 1st respondent had no choice or discretion in the matter and wasbound hand and foot to adhere to the recommendation. It is clearthat the 1st respondent had, in enforcing the punishment prescribedby the inquirer, taken the least interventionist attitude and the roleplayed by the 1st respondent in this matter demanded comparisonwith that of a conduit merely conveying the punishment to thepetitioner. P1, is final proof of the fact that the petitioner had beenexpelled from the faculty of Medicine for no other or better reasonthan that the inquirer had recommended the expulsion of the petitionerfor good. A perusal of P1, ie the letter sent by the 1st respondentconveying to the petitioner that the petitioner had been expelled incompliance with the recommendation of the inquirer, serves to showthat there is nothing therein even remotely suggesting either that the1 st respondent had given its consideration to the justice or the fairnessof the punishment or the mitigating circumstances. It may safely besaid that no punishment can be said to be fair which had overlookedthe factors extenuating the conduct of the petitioner even assumingthat the petitioner had made the false declaration that she was allegedto have made. As evidenced by the letter dated 22.12.1994 (P3) underthe hand of the secretary of the 1st respondent, ie the UniversityGrants Commission and as stated therein, the 1st respondent haddecided to make the punishment that had been previously imposedin compliance with the recommendation of the inquirer, less drasticafter considering the mitigating circumstances at a meeting of theUniversity Grants Commission held on 21.11.1994. The very fact thatthe mitigating circumstances were considered by the University GrantsCommission on that date, ie on 21.11.1994, which was more thansix years after the expulsion, is further proof of the fact that the 1strespondent had not paid any attention before, to such circumstancesor the fitness of the punishment recommended by the inquirer – for
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Premaratne v. University Grants Commission and Others
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if those aspects or circumstances had been considered before orearlier that is, before the implementation of the recommendation ofthe inquirer – there was no necessity to consider the extenuatingcircumstances after the commencement of the operation of punishmentas the 1st respondent had in fact done (on 21.11.1994).
In the case of Herring v. Templemari1> the student in question wasnot allowed to continue on a course at a teacher training collegebecause his work was deemed unsatisfactory. The academic boardhad only power to make recommendation regarding dismissal. It washeld that the student was entitled to a fair chance before the governingbody to show cause why the recommendation of the academic boardshould not be accepted because it was the governing body that hadthe power to impose the punishment.
R. v. Manchester Metropolitan University, ex-parte Nolan, theindependent 15th July, 1993, was a case involving a student on theCommon Professional Examination (CPE) in (aw who was accusedof having committed disciplinary offences under the universityregulations. He had taken notes into the examinations and these werediscovered by the invigilators. The disciplinary committee found thestudent guilty not of cheating but of the less serious offence ofattempting to secure an unfair advantage. However, it was left to theCPE Board to determine what the penalty ought to be. When the Boardmet to impose the penalty it did not have the mitigating evidence beforeit; nevertheless, it imposed the ultimate penalty not only declaring thatthe applicant had failed all six examinations but also denying him thechance to resit them. The decision was quashed by certiorari. Sedley,J. held that the Board could impose any punishment it thoughtfit – but to do so it must have before it all the relevant evidence.It was held that not having that evidence amounted to a failure ofprocedural justice. Both the decisions cited above dealing with internaldisciplinary procedures relating to student cases have brought intoprominence one cardinal principle, that is, that the body empoweredor having the power to impose the punishment must, as a necessary
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condition – precedent to imposing the penalty, afford the student theopportunity to show cause against the punishment being meted outor adduce material before it with a view to reducing the severity ofthe measure of punishment. As pointed out above, not only had the1st respondent, ie University Grants Commission, which was the solebody having the exclusive power to punish, not afforded the petitioneran opportunity to show cause against the implementation of theinquirer’s recommendation but had also failed to consider the fitnessof the punishment that had been recommended by the inquirer and,in fact, couldn’t have possibly done so without considering the relevantevidence that was adduced before the inquirer. There is nothing toindicate that the 1 st respondent was even conscious of these aspects,namely that : (i) question of punishment was a matter that fellexclusively within its purview and (ii) that it couldn’t arrive at apunishment that suited the alleged contravention of the rule by thepetitioner unless it considered, at least the salient points in theevidence. There is nothing to even remotely suggest that the 1strespondent had before it the relevant evidence, let alone give thoughtto it, before implementing the recommendation of the inquirer to expelthe petitioner from the faculty of Medicine. The affidavits tendered onbehalf of the 1st and by the 2nd respondents are even more illuminativeof the fact that the 1st respondent had mechanically given effect tothe recommendation of the inquirer that the petitioner be expelled.The chairman of the 1st respondent and, ie the University GrantsCommission and the 2nd respondent, ie the Vice-Chancellor of the3rd respondent University in their respective affidavits, filed in arepresentative capacity, had stated only this with regard to the matterof punishment that had been meted out to the petitioner : “that onthe basis of the recommendation of Mr. H. Rodrigo the 1st respondentcancelled the admission and registration with immediate effect asevidenced by letter dated 2.9.88 sent by the 1st respondent UGCto the petitioner with a copy to the 2nd respondent. The said letterwas marked by the petitioner as P1. (vide paragraph 7 of the affidavitdated 3.11.1997 filed by the chairman of the 1st respondent). Then
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the 2nd respondent, ie the Vice-Chancellor of the Ruhunu Universityin his affidavit had stated thus: “The University Grants Commissionappointed Mr. Rodrigo, retired Judge of the Supreme Court, to inquireinto this matter and on the basis of the recommendations of Mr. H.Rodrigo cancelled the admission and registration with immediate effectas evidenced in letter dated 2.9.88 sent by the UGC to the petitionerwith a copy to me. The said letter was marked P1 by the petitioner(vide para 6 of the affidavit dated 22.1.1998 of the Vice-Chancellorof the 3rd respondent University). And the 1st respondent had, in factdone just what was averred in the excerpts of the affidavit reproducedabove and nothing more. The 1st respondent couldn’t have possiblyplayed a less interventionist role for the 1st respondent had takenthe least interventional attitude in the matter of punishment for the1st respondent had completely dissociated itself from the process oract of punishment – as revealed by the experts of the affidavitsreproduced above.
This vindicates the observation I had made above in this judmentthat the role played by the 1st respondent, viz the University GrantsCommission demanded comparison with that of a conduit merelyconveying the punishment that had been recommended by the inquirer,to the petitioner. The 1 st respondent had clearly abdicated its powersin the matter of punishment by default in thus mechanically enforcingthe punishment of expulsion recommended by the inquirer.
Not only had the 1st respondent made default in not exercisingits own personal judgment and discretion, as it should have, in thematter of or in relation to the question of imposition of the penalty,but had also overlooked the principles of natural justice in imposingthe punishment of expelling the petitioner without hearing the petitionerin opposition to the recommendation made by the inquirer whoserecommendation had been scrupulously implemented by the 1strespondent as if routinely and mechanically. Although the proceedingin a matter of this sort – although no such proceedings as such hadbeen held before the 1st respondent, ie the University Grants
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Commission because the question ot guilt of the petitioner and eventhe punishment had been considered solely by the inquirer – wouldn’thave been judicial nor even quasi-judicial, yet as the course of eventshad eventuated in a student, ie the petitioner being sent down orrusticated permanently or for life – common fairness demanded thatthe petitioner should have been given an opportunity to be heard inopposition to the recommendation of the inquirer that the petitionerbe expelled permanently, because so much was at stake – what wasat stake being the petitioner’s entire professional career. That at therelevant time the petitioner had even sat for the MBBS Final mustbe uppermost in one’s mind. In this context, Lord Loreburn’s epitome,in (1911) AC 179 which has come to be regarded as a classicstatement of the duty of any decision maker, ie “they must. . . fairlylisten to both sides, for that is a duty laying upon everyone whodecides anything. . .” would have been particularly worth following.
However, it may be argued that even if the petitioner had beenafforded an opportunity by the 1st respondent to show cause whythe recommendation to expel should not be implemented, the petitionerwouldn’t have had good cause to show. This argument may appearat first sight seemingly reasonable because there is, perhaps roomto think that it is reasonable to avoid a wasted hearing when thereare no good grounds. But as Cane forcefully points out, this potentiallyundermines natural justice for not only is justice not seen to be done,but the case for the other side is not actually heard. In Cane’s ownwords: “The classic position is that a court exercising supervisoryjurisdiction should not, when presented with a challenge on proceduralground concern itself with the merits of the case”. As Megarry, LJ.stated : “As everybody who has anything to do with the law well knows,the path of the law is strewn with examples of open and shut caseswhich, somehow, were not; of unanswerable charges which, in theevent, were completely answered; of fixed and unalterabledeterminations that by discussion suffered a change”.
CAPremaratne v. University Grants Commission and Others
(U. De Z. Gunawardana, J.);411
In this case it was doubly necessary that the 1st respondent shouldhave given the petitioner an opportunity to show cause why theinquirer’s recommendation should not be implemented in all its rigournot only because the imposition or otherwise of a punishment wasa statutory duty cast exclusively on the 1st respondent but alsobecause the inquirer himself had not – as was manifest from his orderembodying the recommendation to expel – taken into considerationany of the mitigating circumstances or attached any weight to themas he (the inquirer) seemed to have strongly felt’ that the mitigatingcircumstances were something that was beside the point. The 1strespondent, ie the University Grants Commission, had not given evena cursory thought to, as was its duty to have done, the measure ofpunishment or the degree of its severity or to the suitability or theappropriateness of the punishment as recommended by the inquirer.The idea of imposing a less drastic punishment, after taking intoconsideration the mitigating circumstances, had never even occurredto the 1st respondent – mostly because the petitioner did not haveor was not afforded an opportunity to acquaint the 1st respondentwith those matters or at least, to make the 1st respondent consciousof them. As has been said by Megarry, LJ. in the excerpt cited above- very often “unalterable determinations by discussion suffer a change”.It is worth noticing, as revealed by letters dated 22.11.1994 (P3) and
(P4) communicating the decision made by 1st respondentrevoking the earlier decision, cancelling the registration of the petitioneras a student at the Ruhunu University – to the Registrar of the 3rdrespondent university, that the mitigating or the extenuatingcircumstances in favour of the petitioner had been considered forthe first time by the 1st respondent only on 21.11.1994 – more than6 years after the 1st respondent had informed the petitioner by letterdated 2.9.1988 (P1) that the registration of the petitioner as a studentin the Medical faculty had been cancelled in compliance with therecommendation of the inquirer. If, in fact, the 1st respondent hadapplied its mind to the suitability of the punishment that had beenrecommended by the inquirer before carrying that recommendation intoeffect there was the potential that, ie the University Grants Commission,
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would not have totally accepted it, for as evidenced by P3 and P4.at its meeting held on 21.11.1994 it, ie the University Grants Commissionhad decided to revoke the recommendation of permanent expulsionand request the 3rd respondent, ie the Ruhunu University to releasethe results of the MBBS Final examination to the petitioner for whichexamination, as stated above, the petitioner had sat in July, 1987.In a way, what a prophetic utterance, the words of Megarry, LJ., viz”unalterable determinations by discussion suffer a change” – had beenin relation to the punishment that had been meted cut to the petitionerfor on the very first day, they, ie the members of the University GrantsCommission, “discussed” or considered the fitness of the punishment,although it was over six years later, the punishment “suffered achange” in the direction of rationality and proportionality. Although theprevention of students making false declarations is a reasonableobjective, that could not justify the pursuit of a policy of inflicting grosslyexcessive and unreasonably punitive punishment. The mainconsideration, as evidenced by P3 and P4, under the hand of thesecretary to the 1st respondent, that had prompted the 1st respondentto repudiate or modify the original punishment as recommended bythe inquirer was that the 1st respondent had felt that expulsion forlife was too severe a punishment for in P3 and P4, referred to above,it had been explicitly stated that withholding of results for just over06 years, which also meant expulsion for that space of time, that beingthe interval of time that had elapsed between the time of commencementof the implementation of the recommendation of expulsion and thedate of consideration of the fitness of that punishment by the 1strespondent, was an adequate punishment. It will be recalled that inthe case of R. v. Manchester Metropolitation University, cited above,although it was the disciplinary committee that found the student guiltyof attempting to secure an unfair advantage, yet it was the CPE Boardthat has the power to determine whether a penalty ought to be imposedor not and, if so, its severity. However, the penalty imposed by theCPE Board was set aside because the CPE Board had prescribedthe penalty without having regard to the relevant evidence. In the casein hand too, as had been repeatedly emphasized above, it was the
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1st respondent which should have ultimately determined the penaltyand that too. with reference to or having regard to the relevant orsalient points in the evidence, as well as the mitigating circumstances- a thing which the 1st respondent did more than 06 years later thanthe due time or date – thereby, perhaps, proving the wisdom of theold adage, off-repeated, that it is better late than never.
I had stated above that there is a two-fold reason or that it isdoubly necessary, that the 1st respondent ought to have afforded anopportunity to the petitioner to show cause against the recommendationof the inquirer being implemented.
Reading between the lines, so to speak, what the inquirer seemedto say in his report is this: (a) the expulsion in the circumstancesof this case, is not a punishment; that being so, mitigatingcircumstances are not relevant and need not be considered;
(b) In any event, as the petitioner ought to be treated as one whohas robbed another student of a place in the Medical faculty, thepetitioner should of necessity, be deprived of the place in the facultyof Medicine, irrespective of any other circumstances.
It is patently wrong to say that expulsion in the circumstancescannot be said to be a punishment. Punishment, primarily means theimposition of a disadvantage. Depriving one of a better position isa disadvantage which is essentially a punishment. There is no gainsayingthat the petitioner would have been better off if she had not beenexpelled from the faculty of Medicine. The advantages she had lostby being expelled even after the petitioner had sat for the MBBS Final,are too self-evident to be elaborated on.
The 2nd ground adduced by the inquirer, referred to above, vizthat the petitioner ought to be expelled because her representationor declaration that she had not been registered as a student to followa course of study in any other University had deprived another student
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of a place in the Medical faculty which that other student would havegot if not for the said misrepresentation on the part of the petitioner.In other words, the gist of the reasoning of the inquirer being thatinasmuch as the petitioner’s conduct or declaration had deprivedanother student of a place in the faculty of Medicine – the petitionermust be made, as an imperative need, to unavoidably suffer theconsequence of losing her place in the faculty of Medicine. To quotefrom the report of the inquirer: “I am therefore of the view that thepenalty of dismissal is not a punishment per se but depriving a studentof stolen property, as it were, which the student had obtained byfraudulent misrepresentation from another student who should havebeen rightly admitted”. The inquirer has also said; :* . . . this rulemerely takes away from him that which is not his or hers to retain”.
It looks as if the inquirer’s view seems to be based on theconception of retributive justice alone. Indignation against injusticeseems to have been the sole criterion adopted by the inquirer. “Thineeye shall not pity; but life shall go for life, eye for eye, tooth for tooth,hand for hand, foot for foot,” – does not represent the perfect systemof justice, perfect system of punishment is based on neither theretributive nor the deterrent principle exclusively but is the result ofa compromise between them. As Salmond puts it, from a utilitarianpoint of view, such a conception, ie punishment based solely onretributive justice is inadmissible. Salmond further states: “punishmentin itself is an evil and can be justified only as the means of attaininggreater good. Retribution in itself is not a remedy for the mischiefof the offence but an aggravation of it”.
I wonder whether it was Falstaff who opined: “Wisdom cries outin the streets and no man regards it”. I am not sure for I cannotremember at this distance of time. Anyhow the wisdom enshrined inthe observations made by Salmond (reproduced above) seems to bevindicated and even vividly demonstrated by the measure or the modeof punishment recommended by the inquirer, for as the inquirer himselfhad stated in his report, expulsion of the petitioner for life or permanently
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benefits nobody. To quote the relevant excerpt from the inquirer’sreport: “that being so, it is patently unfair by the student displacedby fraud to permit her to benefit from the fraud”. But in the samebreath the inquirer proceeds to say thus : “that nobody gains fromdismissing her – neither the student displaced nor the commission,nor the government or the country for that matter – is beside thepoint of principle of fairness that is at the bottom of this rule ofadmission”.
It is plain as a pikestaff that the inquirer had formed the view thatviolation of the rule has of necessity whether one likes it or not, tobe inexorably visited with the ultimate penalty of dismissal, no matterwhat the mitigating circumstances were; no matter that no one benefitsfrom it, as the inquirer himself, in fact, had stated above. In fact someof the circumstances that ought to have been considered by theinquirer, in extenuation of the petitioner’s conduct of making a falsedeclaration, such as, that she had completed five years’ of study atthe faculty of Medicine and that she had even sat for the MBBSfinal, although itemised or referred to in the report of the inquirer hadbeen expressly left out of consideration because the inquirer, with aconspicuous lack of forbearance, and of sensitivity to consequences,equated the permanent dismissal of the petitioner as, pointed outabove, say, to a thief being made to disgorge what he (the thief) haswrongfully taken, I am afraid the analogy given by the inquirer is notquite apt. The consequences of expelling a student who had followedan arduous course in medicine for five years and had even sat forMBBS final are incomparably far more devastating than, say, a thiefbeing deprived of a wrist-watch that he had stolen. Would one evendream of taking away from a man a stolen kidney which had beentransplanted or implanted in him? One cannot ignore the fact that thepetitioner was fully qualified to be admitted to the Medical faculty inthat she had gained sufficient or the prescribed marks to be eligiblefor admission. The only transgression that she was found to be guiltyof by the inquirer, as pointed out above, was that the petitioner hadmade a false declaration to the effect that she had not been registered
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to follow a course of study in any other University before or priorto her seeking admission to the Medical faculty. It may be pointedout, in passing, that the reasoning by which the inquirer had foundthe petitioner guilty of making a false declaration cannot be said tobe all that tenable although, all in all, and in spite of that flaw inthe reasoning, the finding of guilt, may yet be correct. Of course, Irefrain from making any observations on the correctness or otherwiseof the finding of guilt arrived at by the inquirer, because an inquiryinto that aspect is quite uncalled for in the light of the scheme andtenor of this order made by me. But this much I must point out, forjustice must not only be seen to be done by any trier of fact or inquirer,but it must also be seen to be done on a rational basis. But theinquirer’s reasoning, at least in regard to one aspect, as would appearfrom the sequel does not seem to measure up to or satisfy thatcondition at least in regard to one inference which he had drawn inthe report as follows: “It is my finding without any trace of doubt inmy mind and confirmed by the conduct of the father and the studentat the conclusion of the inquiry when they appealed for a lenientrecommendation on humanitarian grounds such as a suspension ofthe student as against a dismissal, though formally maintaininginnocence”.
The reasoning of the inquirer reproduced above, with respect,typifies “an outrageous defiance of logic”. After all, what can one doafter one has been found guilty, rightly or wrongly, except to pleadfor forgiveness or mercy. It is to be observed, even as remarked bythe inquirer, the petitioner had stoutly protested her innocencethroughout. Plea for mercy or leniency is never an unerring pointerto or “confirmation” of guilt, as the inquirer seems to have thought- as it would have been, if the petitioner had admitted guilt and pleadedfor mercy. Consequences of deprivation ought to be considered fora penalty to be proportionate and a penalty which is disproportionatelydraconian must be quashed as being an excessively severe penalty.The doctrine of proportionality which works on the assumption thatany action or punishment ought not to go beyond the scope necessary
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to achieve its desired result has found a place in case law, for instance,in R. v. Barnsley ex. p. HooKA) which illustrates that if any action ormeasure is considered to do more harm than good in reaching agiven objective it is liable to be set aside for the court has to considerwhether ends justify the means.
I think the punishment, ie permanent expulsion that had been metedout to the petitioner is disproportionately drastic, considering that thepetitioner had even sat for the MBBS final examination. As had beenheld by Lord Denning in the memorable decision in Reg. v. BarnsleyCouncil referred to above, “the court can interfere by certiorari ifpunishment is altogether excessive and out of proportion to theoccasion”.
In the case referred to above a street trader (Harry Hook) wasbanned by the market manager, for life from trading in the market,all because of a somewhat trifling incident: Harry Hook wanted torelieve himself and had gone to a side street near the market andurinated. A security officer had reprimanded Harry Hook and wordshad been exchanged and the market manager’s affidavit evidence wasthat he had banned Harry Hook because of the abuse of his staffand not because of the urinating. The Court of Appeal of Englandquashed the decision of the market manager – one of the groundsfor the quashing being that the punishment was, in the circumstancesexcessive. Lord Denning took the view that the punishment of deprivingthe man of his livelihood was out the proportion to the original incident.
I think the University Grants Commission, ie (1st respondent) hadfailed to make a considered exercise of the powers at its disposalbecause it had mechanically given effect, almost as a matter ofunthinking routine to the recommendation made by inquirer, be itnoted, who was appointed by the University Grants Commission itself.
In the Barnsley Council case cited above, one of the Judges, SirJohn Pennycuick was at pains to stress that the incident did not justify
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“the disproportionately drastic step of depriving Mr. Hook of his licenceand indirectly of his livelihood”.
Although Mr. Hook was banned for life by the market manager,from trading in that particular market belonging to the Barnsley Councilyet he could have, if he so chose, carried on the self-same businesselsewhere. But it would be, virtually, if not for certain, impossible forthe petitioner (student) to seek to follow the same course of studyin medicine at some other institution or University as had, in fact,been vividly demonstrated or proved to the hilt in this case, for eversince the petitioner was banned or expelled from the faculty ofmedicine of the Ruhunu University, she had been passing away hertime in idleness – trauma of which, perhaps, can best be imaginedrather than described. Banning for life a student who had even satfor the final examination of a University and who had entered afterqualifying at a fiercely competitive examination is something more thana punishment but is a major disaster – a traumatic misfortune. Becauseso much was at stake from the standpoint of the petitioner theauthorities should have acted more fairly by not imposing the ultimatepenalty. No doubt, a penalty or punishment should be visited on astudent who fails to make a full disclosure of relevant facts in theinterest of sound administration but the duty or the obligation not tomake a false declaration ought to be enforced by less drastic meansnot breaching the principle of proportionality. There is nothing to showon record as, had been repeatedly pointed out above, that the mitigatingcircumstances had been given thought to even if there had been aprovision or law disqualifying a student on disciplinary grounds for whatthe applicant had allegedly done or rather omitted to do. The 1strespondent should have leavened the punishment with someforbearance as it had, in fact done after the effluxion of more thansix years after the commencement of the operation of the punishment.Principles of fairness ought to supplement the rules. To punish astudent as severely as had been done in this case entails a breachof the principle of proportionality. The concept of proportionality hasclearly emerged as a ground of review and the Barnsley Council case
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is not the only case in which this principle was invoked and adoptedThe judgment in R. v. Intervention Board for Agricultural Producedwas also predominantly rested on the same principle.
Although, the expulsion of the petitioner had taken place as farback as 02.09.1988 and thereafter, this matter had gone though manyvicissitudes, yet I feel it has reached a happy ending from the stand-point of all parties considering the fact that the petitioner’s first applicationto this court was either withdrawn or dismissed: The petitioner canbe said to have achieved “victory at all costs . . . however long andhard the road may have been; perhaps, the petitioner knew for certainthat “without victory there was no survival” – for her. The firstrespondent in fact, is to be treated as a consenting party to thequashing of the punishment of expulsion that had been imposed onthe petitioner because, as explained above, the 1st respondent hadalready, ie on 21.11.1994 decided to reinstate the petitioner as astudent of the faculty of Medicine of the Ruhunu University, ie the3rd respondent.
To sum up, Writ of Certiorari is hereby granted quashing thedecision expelling the petitioner from the faculty of Medicine of theRuhunu University for the following specific three-fold reasons:
the 1 st respondent had on 21.11.1994, already, as stated above,revoked the decision if it can be called a decision, made bythe 1st respondent, to expel the petitioner. This court quashesit, so to say, for formality’s sake or rather, acquiesces in theaforesaid decision made by the 1st respondent to reinstate thepetitioner as a decision that has been rightly made;
in any event, the “decision” or rather the process of implemen-tation by the 1st respondent, ie the University GrantsCommission of the recommendation made by the inquirer isaffected by a procedural impropriety in two ways: (a) the 1strespondent had mechanically implemented the recommendation
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of the inquirer without giving any thought to the appropriatenessof that punishment; (b) nor had the 1st respondent afforded thepetitioner any chance to show cause against the implementationor the adoption by the 1st respondent of the punishmentrecommended by the inquirer;
the punishment of permanent expulsion from the Medical facultywas clearly excessive and out of proportion and, as explainedabove, involves a breach of the principle of proportionality.
Now that the 1st respondent had made a decision restoring thepetitioner as a student of the faculty of Medicine of the RuhunuUniversity, because the 1st respondent had felt that the petitioner hadbeen made to expiate sufficiently the transgression of the rule shehad allegedly committed. It goes without saying that the 2nd to 49threspondents are bound to release the results of the MBBS final forwhich examination the petitioner had admittedly sat. Accordingly I dohereby direct, the 1st-49th respondents, by way of Mandamus torelease to the petitioner the results of the aforesaid examinationforthwith. For the sake of completeness this order made by way ofMandamus will be binding on the 1st respondent as well – as it isthe 1st respondent who is in all over all control of the relevantUniversity.
The application for Writ of Certiorari and Mandamus is herebyallowed as prayed for.
HECTOR YAPA, J. – I agree.
Application for writ of certiorari, and mandamus allowed.