024-SLLR-SLLR-2002-V-2-NEIDRA-FERNANDO-v.-CEYLON-TOURIST-BOARD-AND-OTHERS.pdf
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Neidra Fernando v. Ceylon Tourist Board and Others
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NEIDRA FERNANDO
v.CEYLON TOURIST BOARD AND OTHERS
COURT OF APPEALGUNAWARDANA, J.
CA NO. 1343/98AUGUST 31, 2000
Writ of Certiorari – Recommendation of dissmissal – Does Writ lie – Public Lawand Private Law remedies – Duty to act judicially? Bias – Likelihood of bias -principle of proportionality – Ceylon Tourist Board Act, No. 10 of 1966 s. S (A)and 16 (3).
The petitioner was found guilty of all the charges framed against her by the 3rdrespondent and had in his report to the 1st respondent recommended that shebe dismissed from service. The petitioner sought to quash the said recommen-dation, on the ground of bias. However, the petitioner had been dismissed afterthis application had been made to Court, and later reinstated.
It was contended by the respondent that the decision that the petitioner iscomplaining of is not amenable to judicial review.
Held:
It is clear that the power to make the recommendation a report to theeffect that the petitioner should be dismissed had not been made underthe contract. In terms of the letter of appointment there was no need tohold an inquiry before the dismissal. The 3rd respondent inquiring officerhad made the impugned recommendation not under the contract but interms of the regulations of the Ceylon Tourist Board Act. The code ofregulations in pursuance of which the inquiry had been held had not onlybeen approved by the relevant Minister but had also been published inthe Government Gazette. Furthermore, because the inquiring officer wascalled upon to decide the respective rights of the parties ordinarily, therewas a duty on the part of the inquiring officer to act judicially. The decisionis amenable to judicial review.
The 2nd respondent, Chairman is the complainant in this case. Almost allcharges inquired into by the 3rd respondent were charges stemming fromcertain remarks on allegation that had alleged been made by the petitionerwhich are said to be reflecting on the Chairman.
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Per Gunawardana, J.
“The rule against bias is a doctrine which requires that no man shouldbe the Judge in his own cause. The petitioner had a right to a fair hearing.The inquiring officer must appear to be free from bias which is a concomittantof that right. It is true that the Chairman had not personally decided the matter,but he had appointed the inquiring officer who did make the decision or therecommendation. Bias being insidious one rarely has to or is able to proveactual bias. I think appearances are everything, justice must be seen to bedone.
The alleged act of bringing the Chairman into dispute cannot be readilybrought under any of the thirteen acts of grave misconduct designated inthe Rules.
The doctrine of proportionality provides that a Court of review may interveneif it considers that harms attendant upon a particular exercise of power aredisproportionate to the benefits sought to be achieved.
APPLICATION for a Writ in the nature of Certiorari / Mandamus.
Cases referred to:
R. v. Football Association ex parte Football League – (1993) 2 All ER833.
Aga Khan Case – (1993) 1 WLR 909 at 924.
Rex v. East Berkshire Health Authority – ex parte – Walsh 1985 QB 152.
R. v. Civil Service Appeal Board – ex parte Bruce – 1988 3 ALL ER 686(QB).
R. v. Crown Prosecution Service – ex parte P. Hogg (1994) The Times,24 April.
Ridge v. Baldwin – 1964 AC 40.
R. v. Barnsley Metropolitan Borough Council – ex parte Hook – (1976)1 WLR 1052.
Nanayakkara v. The Institute of Chartered Accountants – (1981) 2 Sri LR52.
R.. Sussex Justices – (1924) 1 KB 256.
Dimes v. Grand Junction Canal – 1852 3 HLC 759.
Metropolitan Properties Ltd. v. Lannon – 1968 3 ALL ER 304.
Premaratna v. UGC – 1998 3 SLR 395.
Ex parte Blind – 1991 AC 696.
R. v. Secretary for Home Department ex parte Cox – 1993 5 Admin
LR 17.
In Re Harry Hook – 1976 3 ALL ER 452.
15.
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Neidra Fernando v. Ceylon Tourist Board and Others
(Gunawardana, J.)
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In the matter of an application for Writ of Certiorari / Mandamus.
Shibly Aziz, PC with Ms. N. Buhary for petitioner.
D. S. Wijesinghe, PC with J. C. Weliamuna for 2nd respondent.
Y. S. W. Wijetilaka, DSG for 1st respondent.
Dr. J. De Costa with D. D. P. Dassanayake for 3rd respondent.
Cur. adv. vult.
July 16, 2001GUNAWARDANA, J.
The petitioner who had been a fairly high ranking officer in the serviceof the Ceylon Tourist Board (1st respondent) had been dismissed bythe 1st respondent in pursuance of a recommendation made by theinquirer (3rd respondent) who held an inquiry in pursuance of regulationsor rules framed under section 16 (3) of the Ceylon Tourist Board Act,No. 10 of 1966 into seven charges framed against her. The 3rdrespondent had found the petitioner guilty of all the charges and hadin his report dated 30. 10. 1997 recommended that she be dismissedfrom service, which is the maximum or ultimate punishment. Thepetitioner seeks only to quash the recommendation. Presumably, thedismissal had taken place after this application had been made tothis Court.
In what may be called, the series of charges (amounting to seven)that the petitioner had to face, charges that form the main elementin the sheet relate to some allegation or remarks that the petitionerhad allegedly made to a former minister, supposedly, so to speak,reflecting on the Chairman of the Ceylon Tourist Board (2nd respondent).The impression is irresistible, taking a common sense view of thematter, that the other charges too, (in the series) against the petitionerhad been framed or had been prompted by the fact that the petitionerhad allegedly made certain observations which were considered tobe derogatory of the 2nd respondent and had obviously antagonisedthe 2nd respondent who was the Chairman of the Ceylon TouristBoard.
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On the submissions, basically, two points demand consideration:
Whether the decision that the petitioner is complaining of isamenable to judicial review,
If so, whether the decision is vitiated as there was a reallikelihood of bias.
The argument put forward on behalf of 1st-3rd respondents is that 30the relationship between the petitioner and the Ceylon Tourist Board(1st respondent) is a private law matter in that the relationship isgoverned by a contract. Although it had not been said so, in so manywords, the said argument seems to suggest that an employer cannotbe compelled to retain somebody as his employee against the willof the employer and whom the employer does not want; the remedy,if any, lies in damages for breach of contract.
At this juncture it is worth pointing out that this case had takena new turn or direction after the matter was orginally set down forjudgment and there was a strong feeling that it was superfluous to 40deliver a judgment by the Court as the petitioner had been reinstated.However, the learned President's Counsel for the petitioner, afterdiscussion with the petitioner, informed Court that the petitioner wouldnot be content unless the report of the 3rd respondent is also quashedto which proposal the learned Deputy Solicitor-General andMr. Wijesinha, PC who appeared respectively for the 1st and 2nd -3rd respondents objected.
The precise limits of what is called "public law" and "private law"cannot be easily worked out. The working out of this distinction isnot all that simple. And as such, some measure of flexibility has to 50be shown by the Court as to the use of these two different procedures.
The search for a rational distinction has displayed a good dealof judicial confusion. Fears are engendered that litigants are non-suitedon purely strait-laced technical grounds. There is a degree of impatience
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on the part of judges with restrictions imposed by public / private lawdichotomy. There are some criteria that will persuade a Court to theview that a decision-making body should be designated as one fallingwithin public law category. Reliefs under the judicial review procedurecan be sought only in respect of public law issues. It is, therefore,necessary to ascertain whether or not the issues involved on thisapplication fall within the domain of public law. There appear to be,broadly speaking, two main grounds for this, that is, for holding thatan issue is a public law matter: the source of power and the natureof the function exercised by the body in question. The Courts haveoften, referred to the source of decision-making power as the touchstone.For most administrative authorities the source of their power will belegislation or regulations framed under a statute, as the rules orregulations relevant to this matter are.
There are, of course, other criteria that have to be taken intoconsideration apart from the source of power and the nature of thefunction performed by the authority in question in identifying matterswhich are amenable to judicial review – one such being that thereis no right to a remedy in private law. If this is a case of an unfairdismissal of the petitioner by the Ceylon Tourist Board (1st respondent)the petitioner, perhaps, can seek relief in respect of matters governedsolely by the contract of employment. But, it is extremely doubtful,whether it would be within the competence of a Labour Tribunal toquash the adverse report of the 3rd respondent.
The fact that there are no other means of challenge can be adeterminant of the availability of review was confirmed in R. v. FootballAssociation, ex parte Football League.™
As regards the question of whether or not a jockey club wouldever be regarded as public body for the purposes of review, SirThomas Bingham MR in the Aga Khan case at 924 observed: "caseswhere the applicant or a plaintiff has no contract on which to relymay raise different considerations and the existence or non-existenceof alternative remedies may then be material''.
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In this case the petitioner is challenging or is seeking to quashthe report of the 3rd respondent who held the disciplinary inquiry
against the petitioner. In fact, such a disciplinary inquiry was not incontemplation under the contract of employment even if, in fact, theletter of appointment dated 03. 03. 1968 granted to the petitioner byCeylon Tourist Board (1st respondent) can be described as such, thatis, as a contract of employment.
The source of authority or jurisdiction of the 3rd respondent (inquirer)was not the consensus of the petitioner to be bound by the findingsof the 3rd respondent. The parties, or rather the petitioner, had notconsensually submitted to the jurisdiction of the inquirer. He (the 3rdrespondent) is performing disciplinary functions ordained by a disciplinarycode adumbrated by or spelt out in rules framed under a statute, thatis under section 16 (3) of the Ceylon Tourist Board which create asituation where the petitioner is left with the "stark choice of eithersubmitting himself to the control of the 2nd respondent or not participatingat ail" in the inquiry concerned. The inquirer's (3rd respondent's)authority is not derived from the contract, assuming that the petitioner'sservice with the Ceylon Tourist Board (1st respondent) stems or arisefrom a contract of employment which, in fact, is strictly not so. Thisspecial method of resolving or dealing with disputes had not beenagreed to by the parties but had been devised by rules unilaterallyformulated by the 1st respondent under the Ceylon Tourist BoardAct. As such judicial review should govern the situation on thisparticular dispute.
The petitioner in seeking to quash the report of the 2nd respondentis not asserting rights that exist in private law. As explained earlier,the petitioner may sue for breach of contract, if, in fact, there canbe said.to be one (contract) between herself and the Ceylon TouristBoard. But, the petitioner cannot seek to quash the report in theexercise of private rights. And, as such, the petitioner's applicationto quash the report must be held to involve a public law issue.Perhaps, the fact that the petitioner is seeking to quash the report
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of the 3rd respondent and that such a relief cannot be obtained,say, from the Labour Tribunal may not in itself be determinative ordecisive. But, this is an aspect that is relevant, as had been explainedin the Aga Khan case referred to above.
The nature of the function of the body in question is also relevantin ascertaining whether its decision involves public law issues. Theinquirer (2nd respondent) is comparable to a disciplinary or other bodythat had been created by statute to which the employer and employeeare entitled or required to refer disputes. Because the inquiry had beenheld by the 3rd respondent who is a body or person created or set130up under regulations or rules made under a statute – that createsa public law element. The effect of the regulations under which theinquirer (3rd respondent) had been appointed and under which the3rd respondent had held the inquiry was to place special restrictions(which partake of the character of statutory restrictions) upon the rightof the Ceylon Tourist Board (1st respondent) to dismiss the petitionerunilaterally, which by itself injects an element of public law into issuesarising in this case. Sir John Donaldson MR had this to say in thisaspect: "The ordinary employer is free to act in breach of his contractsof employment but if he does so his employee will acquire certain uoprivate law rights and remedies in damages for wrongful dismissal,compensation for unfair dismissal, an order of reinstatement or re-engagement and so on. Parliament can underpin the position of apublic authority employee directly restricting the freedom of the publicauthority to dismiss, thus giving the employee "public law rights".This statutory restriction – created by the rules (discipline) formulatedunder the Ceylon Tourist Board Act, upon the right of the employerto dismiss the petitioner constitutes some statutory underpinning ofthe petitioner's employment or her service.
It can, at least, be arguably said that, in fact, the petitioner had 130no contract of employment, as such with the Ceylon Tourist Board
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(1st respondent). In R. v. Civil Service Appeal Board ex parte Brucea distinction, (however tenuous it may appear to be to the uninitiated
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or to those not admitted to or conversant with the finer points ofAdministrative Law) had been drawn between service pursuant to acontract of employment on the one hand, and service merely by virtueof an appointment on the terms of a letter of appointment on theother. In that case May, LJ. held that there was a sufficient publiclaw component or element connected or associated with the dismissalof the executive officer concerned – since the service of the applicant 160(officer) arose out of an appointment and not in consequence of acontract, as such. Notwithstanding that feature, the Court refusedto grant judicial review of the decision of the Civil Service Boarddismissing the applicant, because it was felt that the most appropriateforum for resolving disputes arising out of that particular dismissal wasan industrial tribunal.
Examination of the letter of appointment dated 03. 03. 1968 (byvirtue of which, admittedly, the service of the petitioner under theCeylon Tourist Board – 1st respondent originated) shows that thereis no consensus, mutuality or common agreement about the terms 170on which the petitioner had been appointed – consensus being thesignal quality of a contract. The letter of appointment is all one-sidedor unilateral, if I may say so – the Ceylon Tourist Board (1st respondent)prescribing all terms of the appointment, which terms were imposedfrom above and had to accepted by the petitioner, willy-nilly. In thisstate of things, it cannot be said that the petitioner's service with orunder Ceylon Tourist Board arose out of any contract of employment,as such, and the legal relationship that arose out of that form ofservice could not be equated to a contract.
When there was a contract, reliefs under judicial review procedure 180would not be available – since it would be a private law relationship.
In R. v. Crown Prosecution Service ex. P. Hogg(S) the facts were :
A prosecutor in the crown prosecution service was dismissed duringprobationary period. The Court of Appeal (England) held that relationshipbetween the crown as employer and a crown servant as employeewas a private law matter since it was a contractual relationship.
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Even where the institution or the body is a statutory body, whichis clearly amenable to judicial review in respect of its statutory functions,it may yet be immune from judicial review as had been demonstratedin R. v. East Berkshire Health Authority ex. P. Walsh{6) (supra). In thatcase the Court of Appeal held that it would be inappropriate for asenior nursing officer, employed under the National Health Service,to challenge his dismissal by way of judicial review. As the Masterof Rolls (Sir John Donaldson) explained, employment by a publicauthority per se did not inject an element of public law in to the issue.The decision seems to have proceeded on the conventional basisthat there was no "public law" element in an "ordinary" relationshipof master and servant and that accordingly, in such a case judicialreview would not be available.
In terms of the letter of appointment given to the petitioner, evenassuming that it results in a contract of employment with the CeylonTourist Board (1st respondent) – the petitioner's appointment couldbe terminated by one month's notice or upon payment of one month'ssalary in lieu of such notice. Assuming that the letter of appointmentrepresents a contract – yet the termination of services of the petitionerhad not been effected in pursuance of the terms of that letter – butin compliance with the recommendation of the 2nd respondent whois a creature of the statute. All this imparts a statutory flavour to therecommendation of the 2nd respondent, which is what is now soughtto be quashed. It is very clear that the power to make therecommendation or report to the effect that the petitioner should bedismissed from her post had not been made under the contract(assuming there was a contract of employment or that the letter ofappointment gave rise to a contract of employment). In terms of theletter of appointment there was no need to hold an inquiry beforethe dismissal. The letter of appointment, only states thus, with regardto the termination of service or dismissal of the petitioner : "Youremployment will be terminable with one month's notice on eitherside or on payment of one month's salary in lieu of such notice" (videterm No. 7 of the letter of appointment dated 03. 03. 1968).
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As observed above, the 3rd respondent (Inquiring officer) had madethe impugned recommendation (that the petitioner be dismissed fromemployment) not under the contract, but in terms of the regulationsor the Ceylon Tourist Board (Discipline) rules of 1971 formulated undersection 16 (3) of the Ceylon Tourist Board Act, No. 10 of 1966. Theeffect of these rules is to preclude the Tourist Board (1st respondent)from dismissing the petitioner, so to say, at its will and pleasure -thereby imposing some kind of statutory restriction upon the right ofthe Ceylon Tourist Board (1st respondent) to dismiss the petitionerwithout assigning any cause – which latter right to dismiss without 230cause, the Tourist Board (1st respondent) had under the letter ofappointment although it had not been exercised by 1st respondentin this instance.
In the case before me, too, it is true to say that the petitioner'sservice with the Ceylon Tourist Board (1st respondent) was on thebasis not of a contract of employment, as such, but on the termsof the letter of appointment which letter was made available to mevery obligingly by the learned Deputy Solicitor-General, Mr. Y.Wijayatilaka, at my request and for which I am most grateful to him.This is a very crucial aspect which ought to have been highlighted 240by the petitioner herself. I called for the letter of appointment becauseI felt that it is a very significant aspect of this case which had beenoverlooked. Anyhow, as had been repeatedly pointed out above – noCourt or tribunal other than a Court exercising judicial review functionscan quash the report of the 3rd respondent recommending the ultimatepunishment of dismissal of the petitioner. This consideration, that is,the non-availability, of any other means of quashing or challenging thereport of the 3rd respondent injects an element of public law into theissue and should make the relevant report, one amenable to judicialreview. This approach could be rationalised also on the basis that 250the inquirer (3rd respondent) was not only a person appointed in termsof a code of regulations — but was also bound to act in pursuanceof the same regulations or rules when exercising his functions as aninquirer which created an implied statutory duty to act fairly whichduty, be it noted, arose not out of any personal relationship between
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the inquirer (3rd respondent) and the petitioner or out of any personalrelationship between the Ceylon Tourist Board (1st respondent) andthe petitioner. There was, as stated above, no consensual submissionto the jurisdiction of the inquirer (3rd respondent). At least, it can besaid that the petitioner did not submit of her own free-will.
In fact, the inquiring officer (3rd respondent) was under a duty to 260act judicially which is also a criterion for the granting of Certiorari.
Of course, prior to the decision in Ridge v. Baldwinm it was thoughtthat only courts or administrative bodies deciding a dispute betweentwo parties concerning rights traditionally protected by law were undera duty to act judicially and therefore amenable to Certiorari. In Ridgev. Baldwin (supra) Lord Reid changed the course of development ofthe law by holding that in order to determine whether there existeda duty to act judicially the Court should have regard to the natureof the power being exercised, and the rights thereby affected. Thechange in emphasis to what is at stake for the applicant has 270significantly widened the scope of the remedy. Hence, in R. v. BarnsleyMetropolitan Borough Council, ex parte HookP) some members of theCourt of Appeal (England) inferred the duty to act judicially from thefact that the local authority was a statutory body having the powerto determine the right of others. The Court of Appeal (England) furtherheld in that case that an order of Certiorari ought to be granted onthe basis that in revoking the applicant's licence to trade, the councilwas under a duty to act judicially – the duty to act judicially beinginferred from the fact that the decision was one affecting the applicant'slivelihood. In the case in hand, too, the petitioner's right to a livelihood 280is devastatingly affected by the recommendation of inquiry officer (3rdrespondent) to the effect that the petitioner be dismissed fromemployment.
Because the inquiry officer (3rd respondent) was called upon todecide the respective rights of the parties or to put it in other words,as there was a lis (controversy) interpartes situation, as in the casebefore me, ordinarily, there was a duty on the part of the inquiry officer
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to act judicially. In the Barnsley case, referred to above, the right ofthe trader to his means of livelihood was wiped out or taken awayby the decision of the local authority (Barnsley Metropolitan Borough 290Council). And that was one of the reasons which prompted the Courtof Appeal to hold that the matter was not immune from judicialreview – there being, in the circumstances, a duty on the said Boroughcouncil to act judicially.
In the case of Nanayakkara v. The Institute of CharteredAccountants™ cited by the learned President's Counsel for the petitioner,the fact that the inquiry was held under a code of regulations washeld to constitute sufficient "statutory underpinning" to make theproceedings amenable to judicial review, even though there was someuncertainty in that case as to whether those regulations has any 300binding force since those regulations has not then been approved bythe Minister. In the case in hand, the code of regulations in pursuanceof which the inquiry against the petitioner had been held, had notonly been approved by the relevant minister but had also beenpublished in the Government Gazette which places the validity of thoseregulations beyond any controversy.
The learned President's Counsel for the petitioner had submittedthat the appointment of the inquiring officer by the Chairman of theCey)on Tourist Board was violative of the principle of "nemo judexin causa sua potest" which is a rule of natural justice that prevents 310a person suspected of being biased from deciding a matter. Thatmaxim literally means that no man shall be a judge in his own cause.
This rule is based on the fundamental requirement which was
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highlighted in Lord Hewart's judgment in R. v. Sussex Justices that"it is not merely of some importance, but of fundamental importancethat justice should not only be done, but should manifestly andundoubtedly be seen to be done". This is a safeguard which is reallynot concerned with the fact that the decision-maker was actually biasedbut with the possibility that he or she might have been biased. Peoplewho are likely to be biased cannot realistically be expected to make 320
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fair decisions. The Chairman (2nd respondent) is, in fact, the complainantin this case. Almost all the charges against the petitioner that wereinquired into by the 3rd respondent were charges stemming fromcertain remarks or allegations that had allegedly been made by thepetitioner, which are said to be reflecting on the Chairman (2ndrespondent). I think it would be instructive in this context, to explainthe impact of the decision in the Dimes case(10) which is reputed tobe the locus classicus on the aspect of bias. That action had goneon for over 20 years in the manner of Jarndyce v. Jarndyce in theBleak House (Dickens) and culminated in the Lord Chancellor 330affirming decrees that had been made in favour of the proprietors.Dimes discovered, later, that Lord Cottenham (Lord Chancellor) hadseveral thousand pounds worth of shares in the Canal Company(I have considered this selfsame question in greater detail, in caseNo. CA 753/97).
Because Lord Cottenham was a shareholder in one of the companiesthat was a party to the proceedings the ruling was set aside withthe result that Lord Chancellor was disqualified as a Judge in thecase. As Lord Campbell said : "no one can suppose that LordCottenham could be, in the remotest degree, influenced by the interest 340that he had in this concern; but, My Lords, it is of the last importancethat the maxim that no man is to be Judge in his own cause shouldbe held sacred . . .. This will be a lesson to all inferior tribunals totake care not only that in their decrees they are not influenced bytheir personal interest, but to avoid the appearance of labouring undersuch an influence . . .". Lord Cottenham had been held to bedisqualified (by bias) not because it created a real possibility of biasbut because it created a possibility which a reasonable person mighthave suspected would taint the fairness of proceedings. There isalways the prospect of the Chairman (2nd respondent) being suspected 350of selecting as the inquiring officer one who would be favourablydisposed towards him. The Chairman (2nd respondent) would haveacted contrary to human nature if he had selected as the inquiringofficer, one, for instance, who was ill-disposed towards him. There
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is also room for reasonable suspicion that the inquirer might feelobliged to give a decision favourable to the Chairman out of a senseof gratitude or goodwill towards the Chairman for the inquirer oweshis appointment to the Chairman (2nd respondent). It can justly besaid that confidence in the decision-making process is underminedbecause of the Chairman's involvement in the decision-making process 360since the Chairman (who is a party to the proceedings and very muchinterested |n the outcome) had hand-picked the inquiring officer whowill figure as the judge or the arbiter. Since the Chairman (2ndrespondent) had appointed the inquiring officer a reasonable personhas cause to suspect that the Chairman is in the position of beingdominant. In fact, the manner in which the Chairman (2nd respondent)conducted himself as a witness before the inquiry officer (3rd respondent)makes me wonder whether the Chairman had not treated the inquiringofficer in a condescending way. The fact that the Chairman had madea savagely hostile comment or a call for evil to be visited upon the 370petitioner whilst giving evidence before the inquirer (3rd respondent)undoubtedly shows that the Chairman felt that he had some ascendancyover the inquiring officer. To reproduce the virulent, if not venomouscurse that the Chairman (2nd respondent) made in his own words:
'o® esKodfiSO QtS ®t® o®03 oxrefl® S®. o® qcj® o&^so. c® qoraa. e»0gj.oxxSjQ. oSXSi So® ®Q0 qjajog)®) 03)00) exsefi® ®®.'
In Metropolitan Properties Ltd. v. Lannori<11) Lord Denning stated:
". . . the Court looks at the impression that would be given to otherpeople. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a 3soreal likelihood of bias on his part, then he should not sit".
It was reaffirmed by Lord Denning that justice must be rooted inconfidence.
The 3rd respondent (inquiring officer) had done nothing to cautionthe Chairman (2nd respondent); he had, in fact, refrained from recordingthe curse when it was first uttered. Obviously, the Chairman (2nd
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respondent) had felt he could utter such curses with freedom fromany injury to himself or with impunity. When one gets down to thebrass tacks and consider the practical details and the basic facts, what,
in fact, happened in this case was that the Chairman (2nd respondent)had appointed the inquiring officer to inquire into his own complaint.It had been argued that this is a case of necessity and that no oneelse other than the Chairman could have appointed the inquiringofficer. It is true that rule 5A states that disciplinary inquiry shall beheld by an officer nominated by the Chairman. I cannot bring myselfto believe that rule 5A had in contemplation a situation such as thatas had arisen in this case.
But, it cannot be realistically assumed that under the said section16 (3) of the relevant Act, the Board (that framed the rules) derivedthe power to formulate rules in breach of the fundamental rule ofnatural justice, viz nemo judex in causa sua potest or violated thespirit of it. In any event, the rule empowering or requiring the Chairmanto appoint an inquiring officer has to be strictly and sensibly construedas being subject to the sacred rule of natural justice before mentioned.It is to, say the least, extremely doubtful as to whether rule 5Aauthorized the Chairman to appoint the inquirer in a matter to whichhe himself was a party. The judges of Saskatchewan once had todecide a case ex necessitate and pronounce upon the constitutionalityof a law rendering them liable to pay income tax on their salaries.But, the Judges in that case were so high-minded as to decide thecase against themselves. In the case of Judges and other cases wheredecisions were upheld as falling within the rule of necessity, theappointment was not ad hoc, as in the case of the inquiry officer (3rdrespondent) and the appointment was in those cases made under astatute directly passed by Parliament and not under a rule or regulationformulated under a statute, as it is in this case. But, it has been pointedout in De Smith, Woolf and Jowell that the "rule of necessity oughtnot to be mechanically applied if its enforcement would be an affrontto justice". It has further being stressed by the same learned authorsin that august treatise that it is necessary for the Court "to scrutinise
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the actual conduct of the proceedings closely if the rule cannot bewholly circumvented".
It may will be that the administrative set up ordained or prescribedby the rules framed under the relevant statute, is such as to createthe appearance of some bias. In such a case it is incumbent on theCourt under the judicial review procedure to consider, with more thanordinary care, whether the inquiring officer’s (3rd respondent) judgmenthad, in fact, been affected or coloured by personal interest or a built-in tendency to support, albeit unwittingly, the Chairman's cause.
As I had said in another case (CA No. 753/97) the inquiring officer 430had, in fact, or appears to have exhibited some bias in the exerciseof his judgment. Bias being insidious, appearances are everything.
On the facts of this case there is scope for a reasonable man toperceive that a real danger of bias exists. In fact, one can say thatbias is manifested in the action of the inquiring officer in recommendingthat the maximum possible punishment be meted out to the petitionerwithout giving any reason whatever for prescribing such a drasticpunishment. Punishment is graded varying in severity, under the rulesframed under the relevant statute, viz the Ceylon Tourist Board Act,and the rules had prescribed thirteen kinds or modes of punishment 440ranging from a warning to dismissal. It is unclear why the most severepunishment was chosen by the inquiring officer, out of thirteen kindsof punishment. Suspicion of bias in the inquiring officer could havebeen dissipated in some measure, if he had shown greater opennessand transparency by giving reasons for choosing the most drasticpunishment. The appearance of bias is created because one of theparties to the dispute, that is, the Chairman had selected the inquiryofficer which appearance becomes more pronounced as the inquiringofficer had prescribed severest punishment of all. Lack of reasonswould reasonably suggest that Inquiry Officer had no reasons to give 450and that the most severe punishment had been arbitrarily prescribedto fufil the expectations of the Chairman.
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This is not a case where Parliament had by statute directly authorizedthe Chairman (2nd respondent) to appoint the inquiring officer. Whysuch a drastic punishment as dismissal is recommended for beingcritical of the Chairman, assuming that the petitioner's conduct amountedto that, is wrapped in mystery for no reason had been adduced. Lackof reasons makes the recommendation arbitrary, to say least.
The rule against bias is a doctrine which requires that no manshould be the judge in his own cause. In reality, the rule against bias 460is an aspect of fair procedure. The petitioner had a right to a fairhearing. The inquiring officer must appear to be free from bias whichis a concomitant of that right. It is true, that the Chairman (2ndrespondent) had not personally decided the matter. But, as statedabove, he had appointed the inquiring officer who did make thedecision or the recommendation. To quote from my own judgmentin CA No. 753/97: "… bias being insidious, one rarely, has to or,is able to prove actual bias on the part of any decision-maker. I thinkappearances are everything. Thus, perhaps, explains why it is veryoften said that justice "must be seen to be done".470
As a final note, there is one other matter to which I would wishto advert. That is, that the alleged act of misconduct on the part ofthe petitioner, according to the charge-sheet, is that of bringing theChairman into disrepute. Five charges relate to or arise out of that.
The other two charges are of a very marginal or incidental nature.According to the Board paper dated 03. 11. 1997 (2 R 58) the Boardhad expressed the view that bringing the Chairman into disrepute to"subversion of discipline". But, according to the Ceylon Tourist Board(Discipline) rules of 1971 there is no such act of misconduct, either"grave" or "not grave" as discrediting the Chairman (vide schedules 480A and B of the rules)..Even on the basis that the Chairman (2ndrespondent) is a "person in authority" in relation to the petitioner andalso assuming that the petitioner had behaved insultingly orcontemptuously towards the Chairman, "insolence or disrespect to anyperson in authority" can amount to an act of grave misconduct (according
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to the rules) only if that act had been committed "within the BoardPremises" (vide act of misconduct No. 8 in schedule A). These rulesand “Acts of grave misconduct" being of a penal nature must be strictlyconstrued, more so, as these "acts of misconduct” had been createdby rules framed under a statute and not by the statute itself. That490being so, act of bringing the Chairman, into disrepute, not being anact of misconduct according to the relevant rules – the Chairman,in any event, could not have appointed an inquiring officer to inquireinto it or investigate the matter. The alleged act of bringing theChairman into disrepute cannot be readily brought under any one ofthe thirteen acts of grave misconduct designated in the schedule tothe rules.
Further, in the schedule “A” of the relevant rules "acts of gravemisconduct" appear to be spelt out according to the degree or orderof gravity of the act of misconduct. To reproduce the acts of misconduct sooaccording to or in the order in which they are listed in the schedule A.
Misappropriation of funds and fraud,
Theft of property or documents belonging or in the custody ofthe Board,
Conviction of an offence involving moral turpitude,
Habitual breach of the rules of the Board,
Gross impropriety,
Gross negligence resulting in loss to the Board,
Discourtesy to the public,
Insolence or disrespect to any person in authority (within the 510Board premises) and there are five other acts designated asgrave.
CA
Neidra Fernando v. Ceylon Tourist Board and Others
(Gunawardana, J.)
187
The petitioner had not misappropriated funds. She had not committedany fraud. She had not committed theft. Nor had she committed anyact involving moral turpitude. Of course, she seems to have pouredout a litany of woes to a former Minister. She appears to have hada grievance. She felt that she was unjustly treated. There are certainthings that the meekest will not accept. In the circumstances I feelthat the recommended punishment of dismissal is disproportionate.
There has been and remains some uncertainty as to the extent 520to which the notion of "proportionality” may or should be consideredto be a ground of review. It is a regularly used tool of legal reasoningin the European Court of Justice. In essence the doctrine ofproportionality provides that a Court of review may intervene if itconsiders that harms attendant upon a particular exercise of powerare disproportionate to the benefits sought to be achieved. The petitionerhad not committed any serious act of misconduct adumbrated in theschedule to the rules (discipline) framed under the Ceylon TouristBoard Act. In fact, it is extremely doubtful whether she had committedany act of misconduct, identified or described in the rules, at all. The 530idea of proportionality is, I think, embedded or ingrained in thosememorable lines in which Bassanio made the plea to Portia: "wrestonce the law to your authority, to do a great right, do a little wrong.And curb this cruel devil of his will …" (Merchant of Venice). Theimpression is irresistible that the petitioner had been punished for astrongly worded letter written by somebody else to whom she hadconfided. I
I had adopted, the principle of proportionality as one of the grounds
(12)
of my own decision in Premaratna v. UGC. The possibility forintegration of the concept of proportionality was left open in the case 540of ex parte Brind. However, some authorities point out that thisdoctrine has already found a place in English case law and they referto the case of R. v. Secretary for the Home Department ex parteCox(14> and also to the well-known case of Harry Hook<,s In the lattercase Harry Hook's (a street trader) licence was revoked by the
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Barnsley Metropolitan Borough Council. Hook had, one evening, urinatedin a side street near to the market. There had also been a heatedexchange of words between Hook and the council employees whohad witnessed the event. In the Court of Appeal Lord Denning ruledthat the decision revoking Hook's licence could not stand. Lord Denning 550gave several reasons for his decision – one such being that thepunishment of depriving a man of his livelihood was out of allproportion to the original incident.
To cite an excerpt from my own judgment in the Premaratna casereferred to above. "It looks as if the inquirer's view seemed to bebased on the conception of retributive justice alone. Indignation againstinjustice seems to have been the sole criterion adopted by the inquirer."Thine eye shall not pity; but life shall go for life, eye for eye, toothfor tooth, hand for hand, foot for foot" does not represent the perfectsystem of justice; perfect system of punishment is based on neither 560the retributive nor the deterrent principle exclusively, but is the resultof a compromise between them. As Salmond puts it, from a utilitarianpoint of view, such a conception, i.e. 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".
It is to be recalled that the recommendation of the 3rd respondent,sought to be now quashed by the petitioner, if implemented will havethe same oppressive effect, that is, the petitioner will be dismissed 570from her employment.
For the aforesaid reasons I do hereby quash, by an order ofCertiorari, the report or the order dated 30. 10. 1997 made by the3rd respondent.
Application allowed.