021-SLLR-SLLR-2004-V-3-RAJAKARUNA-AND-OTHERS-v.-UNIVERSITY-OF-RUHUNA-AND-OTHERS.pdf
CA
Rajakaruna and Others v University of Ruhuna and Others
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RAJAKARUNA AND OTHERSvUNIVERSITY OF RUHUNA AND OTHERSCOURT OF APPEAL.
TILAKAWARDANE, J. (P/CA).
WIJERATNE. J.,
CA 1316/2002.
JUNE 17, 2003.
Writ of Certiorari – Universities Act 16 of 1978, section 16 – Disciplinary inquiry- Postponement requested – Not granted – Violation of the Rules of NaturalJustice ? – Failure to observe rules of natural justice – Does it render a decisiona nullity? – Circumstances?
The petitioners contend that at the time of the disciplinary inqi iry which was tobe held against the petitioners-students of the Medical Faculty, University ofRuhuna – they requested for further time to get ready, but was not given, butwere issued with letters informing them that they were found guilty of thecharges framed against them. The petitioners contend that they were denieda fair inquiry in violation of the rules of natural justice.
Held:
The petitioners have failed to submit the written requests or anymaterial to support their contention that they did ask for further time inwriting from the Authorities.
The requirements of natural justice must depend on thecircumstances of the case, the nature of inquiry, the rules under whichthe tribunal is acting, the subject matter to be dealt with and so forth.
The petitioners' list of witnesses included all the students of theMedical Faculty of the University, O.I.C. Police Station, Poddala andall other superior officers, three wheel drivers near the University anddoctors, nurses, journalists, chief priest of the temple -This list clearlyindicates a desire to frustrate the purpose of the said inquiry.
According to the facts and circumstances of this particular case, it isclear that the respondents have conducted the disciplinary inquiry inaccordance with the University by-laws. Under section 10 (iv) suchdisciplinary inquiry should be conducted within two weeks.
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Per Tilakawardane, J. (P/CA):
“When deciding whether there was a violation of rules of natural justice by therespondents it has to be emphasized that there are no strict standards and itdepends on the circumstances of each case. Though in general courts haveheld that academic disciplinary proceedings require observance of principlesof natural justice there are exceptions to this norm".
Per Tilakawardane, J. (P/CA):
“Discipline and rectitude are basic and intrinsic qualities that are the hallmarksof the medical profession, any breach of such discipline must be left to be dealtwith in an appropriate manner by the institution itself which has a bounden dutyto safeguard the public from indisciplined professionals. Therefore, a matter ofdiscipline unless it is patently capricious would be a matter that is wholly withinthe purview and control of the University”.
APPLICATION for a Writ of Certiorari
Cases referred to:-
Lloyd v McMahon 1987 – A1 625 at 702
, George v Secretary of State for the Environment- 1979 77 LGR 689
Hoffman-La Roche v Secretary of State for the Trade and Industry -1975 AC-295 at 320
Durayappah v Fernando 1967 – 2 AC 337-353M.R. de Silva for petitioner.
Dr. Jayantha de Almeida Gunaratne for respondents.
July 30, 2003.
SHIRANEE TILAKAWARDANE, J., (P/CA)The Petitioners have filed this application seeking a writ ofcertiorari quashing the disciplinary orders dated 17.07.2002marked “P8A to P8L”, and also prayed for interim relief staying theoperation of the disciplinary orders marked “P8A to P8L”.
The Petitioners are admittedly students of the Medical Faculty,University of Ruhuna. The 1st respondent is the University ofRuhuna established under the Universities Act No. 16 of 1978.
In October 2001, the petitioners were informed by lettersdated 04.10.2001 that disciplinary action will be taken against therr
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in respect of acts of grave indiscipline committed by the Petitionerson 13.09.2001, by assaulting certain female nurses who werefollowing a fee-levying Special Course offered by the RuhunaUniversity.
The Petitioners were issued letters dated 09.10.2001informing them that a preliminary investigation would be conductedon 16.10.2001. At the said investigation statements were recorded,and charge sheets were issued (marked P3A to P3L). By letterdated 06.12.2002 Petitioners were requested to attend a formaldisciplinary inquiry which was to be held on 12,10.2002.
The Petitioners contend that at the said inquiry they requestedfor further time to get ready for the inquiry for which they wererequested to make applications in writing. Though the Petitionersstate that they made the said request for further time, in writing, thepetitioners have failed to produce copies of the same papers to thiscourt. The Petitioners further state that they were not informed of afurther date but were issued letters dated 17.07.2002 informingthem that they were found guilty of the charges framed againstthem (marked P8A to P8L).
The main issue that has to be decided is whether according tothe present circumstances of the case the petitioners were denieda fair inquiry in violation of the rules of natural justice.
As to the question of whether the Petitioners were entitled toa legitimate expectation that their requests sought, for thepostponement of the inquiry, would be granted, but the Petitionershave failed to submit those written requests nor any materials tosupport their contention that they acted in accord with the requestmade by them.
When deciding whether there was a violation of rules ofnatural justice by the Respondents it has to be emphasized thatthere are no strict standards and it depends on the circumstancesof each case. Though in general courts have held that academicdisciplinary proceedings require observance of principles of naturaljustice there are exceptions to this norm.
Wade 8th edition Administrative Law at page 493 states “therequirements of natural justice must depend on the circumstances
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of the case, the nature of the inquiry, the rules under which thetribunal is acting, the subject matter to be dealt with, and so forth”.
In Lloyd v McMahon 0) at 702 Lord Bridge stated that “the
so called rules of natural justice are not engraved on tablets of
stone. To use the phrase which better expresses the underlyingconcept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decisionwhich will affect the rights of individuals depends on the characterof the decision-making body, the kind of decision it has to make andthe statutory or other framework in which it operates. In particular,it is well-established that when a statute has conferred on any bodythe power to make decisions affecting individuals, the courts willnot only require the procedure prescribed by the statute to befollowed, but will readily imply so much and no more to beintroduced by way of additional procedural safeguards as willensure the attainment of fairness".
In the case of George v Secretary of State for the Environment® it was held that there must have been some real prejudice to thecomplainant and not a mere technical infringement of naturaljustice.
According to the present circumstances the Petitionerscontend that if the disciplinary order stands that all the petitionerswould miss their batch as they would not be able to follow practical,clinical tutorials and/or lectures. Further states:
7th and 10th Petitioners will be deprived of sitting for theEnd Appointment Test, if they absent themselves for aperiod of over one to four weeks.
The approval of the results of the 8th and 9th Petitionershave been withheld for 3 months and therefore thePetitioners’ appointments would be delayed.
The Petitioners would be deprived of any scholarships orbursaries given by the University including Mahapolascholarships.
The 11th Petitioner could not sit for his End AppointmentTest in Pediatric due to the aforementioned suspensionand would not be able to sit for the repeat examinationwhich would be held in September.
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Therefore the petitioners pray for the reliefs as their rightswould be affected as stated above due to the disciplinary actionstaken against them.
In this regard it is important to see the gravity of the chargesframed against the Petitioners. These charges refers to –
Disobeying the faculty rule that students should not remainin the faculty premises beyond 9.00 p.m.
Disobeying the Vice-Chancellors orders making the 90medical faculty premises out of bounds from 4.00 p.m. on
until 4.00 p.m. on 15.09.2001.
On the pretence of a satyagraha, crowding the main gateof the faculty from 6.45 a.m. of 15.09.2001.
Crowding the main gate and thereby obstructing the officialduties of academic and non-academic staff and infringingon the professional rights of academic staff.
Conducting illegal meetings.
Conducting propaganda activities without due permission.
Attempting to obtain electricity from the faculty without 100permission.
Publicly abusing academic staff of the faculty.
Defaming academic staff in writing and in speech andspeaking to them in a threatening manner.
Attempting to prevent the conduct of the diploma course inlactation management which had been approved by theFaculty Board, the Senate and the University Council.
12) Preventing a faculty academic staff member from attendingto his officials duties and holding him by force.
The Respondent submits that the above referred disciplinary noactions against the Petitioners were taken after a process of inquiryinitiated by the 1st Respondent University. A preliminaryinvestigation was conducted, which fact was conceded by bothparties, consequent to which a prima facie case was found to lieagainst the Petitioners.
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The Petitioners have failed to produce any documents tosubstantiate the fact that they requested a postponementof the inquiry. According to the University by-laws stepshave to be taken to hold an inquiry within one week of thepreliminary investigation. Under section 10 (iv) such 120disciplinary inquiry should be conducted within twoweeks.
When perusing the answers of the Petitioners “P4A to P4L” itbecomes clear that.the number of witnesses that they intended tocall on their behalf were impractical and would have prolonged theinquiry. The Petitioner's list of witnesses included, all the studentsof the Medical Faculty, Ruhuna University, O.I.C. Poddala PoliceStation and all the other respective officers, three wheel driversnear the University, all the doctors and nurses of the TeachingHospital, Karapitiya, Chief Incumbent Thero of the Karapitiya 130Temple and the other theros and journalists who were present atthe time. This list clearly indicates a desire to frustrate the purposeof the said inquiry.
The remedy Petitioners have sought is discretionary and acourt has power to withhold such remedy if court thinks fit.According to the facts and circumstances of this particular case it isclear that the respondent conducted the disciplinary inquiry inaccordance with the University by-laws.
Lord Denning M.R. in Hoffman-La Roch v Secretary of Statefor Trade and Industry at 320 states “A failure to observe the rules 140of natural justice does not render a decision or order or reportabsolutely void in the sense that it is a nullity. The legalconsequences are best told by recounting the remedies availablein respect of it. A person who has been unfairly treated (by reasonof the breach of natural justice) can go to the courts and ask for thedecision or order or report, or whatever it is, to be quashed, or fora declaration that it is invalid, that it has not and never has had anyeffect as against him. But it is a personal remedy, personal to him.
If he does not choose himself to query it and seek a remedy, no oneelse can do so; see Durayappah v Fernando w But it is within the 150discretion of the court whether to grant him such a remedy or not.”
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Further states that if the persons conduct had beendisgraceful and in fact suffered no injustice, he may be refusedrelief.
Another important factor is that although the petitioners allegethat their university career would be affected if relief was notgranted, the respondent has submitted documents marked X1 andX2 to the effect that terms of punishment was mitigated after appealmade by the petitioners.
Therefore when the University of Ruhuna was reopened on 160
only 1st, 2nd, 7th and 10th Petitioners remainedaffected although petitioners contended all Petitioners would misstheir batch for not attending lectures.
Even the terms of punishment in force against these fourpetitioners, were suspended consequent to an unconditionalapology made to the academic staff on 18.09.2002 by thepetitioners. This decision was conveyed to the said four petitionersby document marked X3(a) to X3(d).
The Respondent further submits that the period during whichdisciplinary action was operative, has lapsed rending the 170application of the petitioners wholly academic in nature and futile.
As regards the other consequences they would followregarding the future medical career of these students this court hascarefully adopted all relevant material.
Considering the seriousness of the allegations leveled againstthe Petitioners which badly reflect on their future in the medicalprofession, and in considering the competing interests of theUniversity authorities and the students in the case, one cannot beunmindful of the noble profession to which the Petitioners seekentry. Discipline and rectitude are basic and intrinsic qualities that isoare the hallmark of the medical profession. Any breach of suchdiscipline must be left to be dealt with in an appropriate manner bythe institute itself which has a bounden duty to safeguard the publicfrom indisciplined professionals. Therefore a matter of discipline,unless it is patently capricious would be a matter that is whollywithin the purview and control of the University.
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This Court therefore finds that all disciplinary steps taken inthis matter is within the purview of the Respondent University andfinds that this is not a fit and proper matter to invoke the writjurisdiction of this Court. The application is dismissed with costs in 190a sum of Rs. 2500/-.
WIJEYARATNE, J. – I agree.Application dismissed