051-NLR-NLR-V-67-M.-K.-S.-SEYED-MOHAMED-SHAREEF-Appellant-and-THE-COMMISSIONER-FOR-REGISTRATION.pdf

(1) We have produced school registers and “ Q ” Schedules, coveringthe period 1.1.36 to 1944, i.e., for 10 years period to 1946. The “ Q”Schedules were admitted to be genuine, i.e., the School Certificate. TheEducation Officer stated that if the “ Q ” Schedules were genuine, thesupplementary documents, i.e., the school register must be genuine.Even on the Inspector’s own reasoning, the school register, the genuine-ness of which he originally said was in doubt, has to be taken as genuine.The matter is now put beyond doubt by the authoritative letter of theDirector of Education which was issued after the Inspector too hadagreed ” (Sic). “ The terms of the letter are that the “ Q ” Schedulesare genuine. No qualification is mentioned. It follows that allsupplementary documents are genuine.
The appellant submitted that the order of the Supreme Court shouldbe set aside and the finding of the Deputy Commissioner quashed on theground that in the conduct of the Inquiry the Deputy Commissionercontravened the principles of natural justice. It is therefore necessary todetail quite shortly the grounds upon which he arrived at his decisionwhich were given in his order.
Having detailed the issues before him the Deputy Commissioner statedthat the report of his investigating officer impelled him to make furtherinquiries. He detailed the evidence of S. Ponniah the school teacherwho signed the school certificate which he found most unsatisfactory and“ almost confirmed the report of the investigating officer ”. He thenreferred to the report of the Director of Education that the school scheduleswere not genuine and stated that Mr. Sandarasegaram the officer whomade the inquiry confirmed the report of the Director. His order thenproceeds as follows :—
“ Before I proceed to discuss the foregoing evidence, I should refer toa subsequent letter of the Director of Education dated 19th May, 1958(folio 160) who informed me that the Q Schedules in question weregenuine. On my enquiry from the Director, I was informed by letterof 20th June, 1958 (folio 164) that the further enquiries were made bythe Assistant Secretary, Ministry of Education. I have not beeninformed of the reasons for making further enquiries on the basison which this finding was carried out. I myself might have madethe enquiry but it appeared to me that no purpose would be servedby doing so, especially in view of the reports earlier made by myInvestigating Officer and the Inspector of Schools from which I couldmyself arrive at an independent decision. In fact that was the onlycourse left to me. It appears to me from the evidence of the Inspectorof Schools (folio 174) that the decision of the Assistant Secretary,Ministry of Education, to regard the Q Schedules as genuine, wasprompted by a meritorious record of the teacher. For my part,I would not be content to abide by that decision, and as I have statedearlier, the evidence before me is sufficient to take an independentdecision."
Having considered the school teacher’s evidence further he concludedthat his story was a fabrication. He finally rejected the school schedulesproduced as not genuine and stated that the applicant had failed in hisproof of residence in Ceylon between 1936 and 1943. The other mattersin issue he determined in the applicant’s favour except that in view of hisdetermination of failure to prove residence from 1936 to 1943 he wasunable to say that the applicant was permanently settled in Ceylon.
The Deputy Commissioner in fulfilling his duties under the Act occupiesan anomalous position. In his position as a member of the executivehe regulates the investigation into the matters into which he considershis duty to enquire and as an officer of state he must take such stepsas he thinks necessary to ascertain the truth. When conducting aninquiry under sections 10, 13 or 14 he is acting in a semi-judicial capacity.In this capacity he is bound to observe the principles of natural justice(section 15 (4)). In view of his dual position his responsibility is increasedto avoid any conduct which is contrary to the rules of natural justice.These principles have often been defined and it is only necessary to statethat they require that the party should be given fair notice of the casemade against him and that he should be given adequate opportunityat the proper time to meet the case against him (Ridge v. Baldwin1).
It is against these principles that the Deputy Commissioner’s conductmust be examined. It is noteworthy that the initial suspicion engenderedin the Deputy Commissioner’s mind was ill founded. He thought theschool certificate to be dated 1.12.43 whereas 1.12.43 was expresslystated to be the “ Date of Withdrawal The freshness of the writinghad in these circumstances not the same significance. The investigationtherefore started so to speak “ on the wrong foot" with the Deputy Com-missioner entertaining an erroneous suspicion against the appellant. It isnot doubted that under section 15 the Deputy Commissioner has widepowers of inquiry and investigation not enjoyed by a judge in a civil orcriminal trial, and that he is not bound to conduct the inquiry accordingto the normal rules of evidence. But the appellant complains thatinformation which was obtained behind his back was in some cases not
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disclosed to him until the last moment and in others was never disclosedto him at all. Counsel for the appellant argued that it was unfair not todisclose the report of the investigating officer dated 2nd September 1957and that the report upon which the letter from the Director of Educationdated 20th January 1958 was made should have been obtained by theDeputy Commissioner and disclosed to the appellant. Their Lordshipsconsider that it would have been in accordance with normal fair conductof an inquiry that this should have been done, and what was scarcelyfair to the appellant was that the School Teacher, Ponniah, should havebeen examined or rather cross-examined by the Deputy Commissionerwho had the details of the investigating officer’s report without disclosingthis report to the appellant’s advocate.
Such procedure made it almost impossible for the appellant’s advocatewho had no direct knowledge of the terms of the report to re-examine thewitness and clear up any difficulties raised. It is also to be noted that itwas apparently never put to the witness that his report was a fabricationwhich was the conclusion ultimately reached by the Deputy Commissioner.
Their Lordships now pass to the 18th February 1958 when at theconclusion of the inquiry the appellant was confronted with the opinionof the Director of Education that the Q Schedule was not genuine. Hisadvocate not unnaturally asked that the reporter should be called to giveevidence. As a result Mr. Sandarasegaram was examined by the DeputyCommissioner on 29th August 1958 the last day of the Inquiry. In themeantime the Deputy Commissioner had received information from theDirector of Education that the Q Schedules were considered genuine,that his previous opinion was cancelled and that this was the result ofinquiries made by a senior official in the C.C.S. But Mr. Sandarasegaram’sevidence proceeded on the basis of his report that the Q Schedules werenot genuine and it was only at the conclusion of his evidence that theDeputy Commissioner read the letters from the Director of Educationto the effect that the Q Schedules were genuine. It is in the light ofthese developments that the appellant’s advocate’s statements andsubmissions have to be considered.
The impression which would naturally have been left upon his advocate,in view of the course of the proceedings, wras that the last report of theDirector of Education concluded the matter of the genuineness of theQ Schedules in his client’s favour. By the Deputy Commissioner’sfailure to point out to him that he was by no means convinced of theirgenuineness and that he proposed to rely on the superseded report ofMr. Sandarasegaram he may well have been misled into thinking that theDeputy Commissioner did not require any further argument or evidenceon this aspect of the matter. During the whole conduct of the inquirythe appellant was never told the details of the case against the genuinenessof the document and he was never given a proper opportunity of answeringthat case.
Counsel for the appellant claimed that the Deputy Commissionershould have called Mr. Mushsin to explain his reasons for concludingthat the Q Schedules were genuine. No doubt the appellant could haveasked for him to be called. But the Deputy Commissioner in holdingthe inquiry was under a duty to ascertain the truth and in any eventthe appellant’s advocate at that stage was under the impression thatMr. Mushsin’s opinion was being accepted by the Deputy Commissioner.However this may be, it is apparent from the passage from the DeputyCommissioner’s order previously quoted that he was prepared to disregardthe opinion of Mr. Mushsin without hearing his evidence and to preferthe investigating officer’s report and the evidence of Mr. Sandarasegaram,the Inspector of Schools, to the effect that the schedules were not genuine,which opinion had been cancelled by the Director of Education. In thewhole circumstances their Lordships are satisfied that the appellantwas not fairly treated and that the principles of natural justice were notcomplied with by the Deputy Commissioner.
Their Lordships must record their regret that they did not have theassistance of the reasons of the Supreme Court in dismissing the appeal,a decision reached, as they understand, after two days hearing.
It follows that the order of the Deputy Commissioner must be quashed.Their Lordships have had to consider what further orders should be made.It would not be proper in their view upon the state of the evidence to makea finding that the appellant had made out a prima facie case. It wouldhowever in their Lordships’ opinion be preferable in accordance with theusual practice in such cases, that the appellant’s application should beheard by a different Deputy Commissioner. It will of course be for therespondent to decide whether upon the existing state of the evidencehe is prepared to admit the appellant’s claim or whether a further inquiryis to take place.
Their Lordships will therefore humbly advise Her Majesty that the orderof the Supreme Court dated 14th December 1960 should be set aside,that the order of the Deputy Commissioner dated 15th September 1958should be quashed, and that the case should be remitted to the SupremeCourt for the purpose of placing de novo the appellant’s application forregistration before the respondent under the Indian and PakistaniResidents (Citizenship) Act, 1949.
The respondent must pay the appellant’s costs before the Board and theSupreme Court.
Order set aside.