UNIVERSITY COUNCIL OF THE VIDYODAYA UNIVERSITY and others, Appellants, and LI

122-NLR-NLR-V-66-UNIVERSITY-COUNCIL-OF-THE-VIDYODAYA-UNIVERSITY-and-others-Appellants-and-LI.pdf


University Council of Vidyodctya University v. Linus Silva
505
[Ik the Priy Council]
1964 Prespnt: Lord Cohen, Lord Morris of Borth-y-Gest, LordHodson, and Lord GuestUNIVERSITY COUNCIL OP THE VIDYODAYA UNIVERSITY andothers. Appellants, and LINUS SILVA, Respondent
Privy Council Appeal No. 42 oe 1962
8. C. 378 of 1961—In the matter of an Application for the issue of mandatesin the nature of a Writ of Certiorari and a Writ of Mandamus in terms ofSection 42 of the Courts Ordinance (Cap. 6)
Certiorari—Master and servant—Wrongful dismissal—-Remedy of servant— Teacherin Vidyodaya University—His status as servant of the University—VidyodayaUniversity and Vidyalankara University Act, No. 45 of 1958, ss. 5, 11, 13,17, 18, 31, 32, 33, 61, 62.
Where there is a contractual relationship of master and servant, the servant,if he is wrongfully dismissed, cannot normally, and apart from theintervention of statute, obtain an order of certiorari. He can only pursuea claim for damages.
The respondent held a teaching appointment as Professor and Head of theDepartment of Economics and Business Administration in the VidyodayaUniversity. At a meeting of the Council of the University (appellants) it wasunanimously resolved on the 4th July 1961 to terminate his appointment.He thereiipon petitioned the Supreme Court on the 8th August 1961 for writsof certiorari and mandamus to quash the order of the Council and re-instatehim. He stated that one member of the Council who participated in themeeting of the Council on the 4th July was biased against him and that thedecision was therefore wrongful and illegal and that the order of the Councilwas made “ maliciously, unlawfully and for reasons extraneous to thosecontained in section 18 (e) of the Vidyodaya University and VidyalankaraUniversity Act No. 45 of 1958”. He further submitted that the Council inordering his dismissal in terms of section 18 (e) of the Act “ acted wrongfullyand unlawfully and in violation of the rules of natural justice by not makingme aware of the nature of the accusations against me and also by not affordingme an opportunity of being beard in my defence
Section 18 (e) of the Vidyodaya University and Vidyalankara UniversityAct No. 45 of 1958 is as follows :—“ Subject to the provisions of this Act andof the Statutes, Regulations and Rules, the Council shall have and performthe following powers and duties :—to appoint officers whose appointment isnot otherwise provided for, and to suspend or dismiss any officer or teacheron the grounds of incapacity or conduct which, in the opinion of not less thantwo-thirds of the members of the Council, renders him unfit to be an officeror teacher of the University.”
Held, that, having regard to the facts concerning the respondent’s appoint-ment and having regard to the provisions of the Act, the present case wasnot one in which there was a failure to comply with statutory provisionsenforceable by certiorari and mandamus. A “ teacher” who has an appoint-ment with the University is in the ordinary legal sense a servant of the University
R, 34261,855 (1/65)
LA VI—22
506 LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya
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unless it be that section 18 (c) gives him some altered position. The circumstancethat the University was established by statute and is regulated by the statutoryenactments contained in the Act does not involve that contracts of employmentwhich are made with teachers and which are subject to the provisions of section18 (c) are other than ordinary contracts of master and servant. It was notopen to the respondent to contend that in terminating his appointment theUniversity Council were bound to “ act judicially ” and should thereforehave given him an opportunity to be heard after being made aware of thegrounds upon which the termination of his appointment was to be considered.In the circumstances the remedy of certiorari was not available to therespondent.
TVpPEAL from a judgment of the Supreme Court reported in(1961) 64 N. L. R. 104.
Dingle Foot, Q.C., with Dick Taverne and M. I. H. Haniffa, for theappellants.
J.O. Le Quesne, Q.C., with Gerald Davies, for the respondent.
Cur. adv. vult.
November 5, 1964.[Delivered by Lord Morris of Borth-y-Gest]—
In order to decide the issues which are raised in this appeal it is necessaryto consider the nature of the position which the respondent held in theVidyodaya University. He had a teaching appointment in that University.At a meeting of the Council of the University it was unanimously resolvedto terminate his appointment. He thereupon petitioned the SupremeCourt to grant a mandate of a writ of certiorari to quash the “ order ”of the Council. His petition was based upon the contention that interminating his appointment the University Council were bound to“ act judicially ” and should therefore have given him an opportunityto be heard after being made aware of the grounds upon which thetermination of his appointment was to be considered. The SupremeCourt directed “ that the order of the University Council of 4th July1961 terminating the petitioner’s appointment as from that day bequashed ”. On appeal from the judgment of the Supreme Court ithas been submitted that the relationship between the University andthe respondent was that of master and servant, and that the contractof employment was terminated by the University, and that in thosecircumstances it was not competent for the Supreme Court to issue amandate of a writ of certiorari. In effect it was contended that theproceedings were entirely misconceived and that even if, contrary tothe appellants’ contention, the respondent had any ground of complaintit could be raised only in an action and not by seeking the remedy ofpertiorari.
LORD MORRIS OF B ORTH – Y- GE S T—University Council of Vidyodaya 507
University v. lAnus Silva
The law is well settled that if, where there is an ordinary contractualrelationship of master and servant, the master terminates the contractthe servant cannot obtain an order of certiorari. If the master rightfullyends the contract there can be no complaint: if the master wrongfullyends the contract then the servant can pursue a claim for damages.
A recent statement of principle is to be found in Ridge, v. Baldwin1.In his speech in that case Lord Reid at page 65 said :—
“ The law regarding master and servant is not in doubt. Therecannot be specific performance of a contract of service, and the mastercan terminate the contract with his servant at any time and for anyreason or for none. Rut if he does so hi a manner not warranted bythe contract he must pay damages for breach of contract. So thequestion in a pure case of master and servant does not at all dependon whether the master has heard the servant in his own defence :it depends on whether the facts emerging at the trial prove breachof contract. But this kind of case can resemble dismissal from anoffice where the body employing the man is under some statutory orother restriction as to the kind of contract which it can make withits servants, or the grounds on which it can dismiss them. The presentcase does not fall within this class because a chief constable is notthe servant of the watch committee or indeed of anyone else.”
To a similar effect were the words of Viscount Kilmuir L.C. in hisspeech in Vine v. National Dock Labour Board2. Vine was a registereddock labourer who as such was employed under a scheme embodiedin an order made under a section of the Dock Workers (Regulation ofEmployment) Act, 1946. He was invalidly dismissed. Because thiswas so his name had not been validly removed from the register of DockWorkers and he continued to be in the employ of the National Board.At page 500 Lord Kilmuir said :—
“ This is an entirely different situation from the ordinary masterand servant case ; there, if the master wrongfully dismisses the servant,either summarily or by giving insufficient notice, the employment iseffectively terminated, albeit in breach of contract. Here, the removalof the plaintiff’s name from the register being, in law, a nullity, hecontinued to have the right to be treated as a registered dock workerwith all the benefits which, by statute, that status conferred on him.It is therefore right that, with the background of this scheme, thecourt should declare his rights.”
In the same case Lord Keith (at page 507) said :—
“ This is not a straightforward relationship of master and servant.Normally, and apart from the intervention of statute, there would
1 [1964] A. C. 40.
1 [1957] A. C. 488.
608 LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya
University v. Linus Silva
never be a nullity in terminating an ordinary contract of master andservant. Dismissal might be in breach of contract and so unlawfulbut could only sound in damages.”
The House of Lords approved the dissenting judgment which had beengiven by Jenkins L.J. in the Court of Appeal. In the course of hisjudgment Jenkins L.J. said ([1956] 1 Q. B. at page 674)—“But in theordinary case of master and servant the repudiation or the wrongfuldismissal puts an end to the contract and the contract having beenwrongfully put an end to a claim for damages arises. It is necessarilya claim for damages and nothing more. The nature of the bargain issuch that it can be nothing more.” See also the judgment of theirLordship’s Board in Francis v. The Municipal Councillors of KualaLumpur x.
It becomes important to consider therefore whether the respondenthad any other position or status than that of an employee or servantof the University. The V idyodaya Un iversity is a Corporation establishedby the Vidyodaya University and Vidyalankara University Act No. 45of 1958 which was assented to on the 19th December 1958. TheUniversity has power (see section 5 of the Act) to institute Professorships,Lectureships and any other posts or offices which may be required andto make appointments thereto. The Vice-Chancellor (see section 11)is a whole time officer of the University and is the principal executiveand academic officer of the University : he holds office for a term offive years but he may be re-appointed. The Authorities of the University(see section 13) are the Court, the Council, the Senate, the Faculties,the General Board of Studies and Research, and such other bodies asmay be prescribed by Statute as Authorities o- the University.
Section 17 of the Act relates to the Council. Its provisions are asfollows :—
“ 17.(1) The University Council shall be the executive body of the
University.
The Council shall consist of the following peisous :—
(а)The ex-officio members who shall be—
the Vice-Chancellor,
the Director of Education, and
the Deans of the Faculties.
(б)Other members who shall be—
three members appointed by the Chancellor,
two members elected by the Court from among its own body,
two members elected by the Senate from among its own
body, and
1 [1962] 1 W. L. R. 1411.
LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya 609
University v. Linus Silva
in the ease of the Vidyodaya University of Ceylon fivemembers elected by the Vidyadhara Sabha from amongits own body, and in the case of the VidyalankaraUniversity of Ceylon five members elected by theVidyalankara Sabba from among its own body.
Members of the Council ether than ex-officio members shall holdoffice for a period of three years :
Provided that the members of the Council elected under the provisionsof sub-paragraphs (ii) and (iii) of paragraph (6) of sub-section (2) shallretain their membership so long only within the said period of threeyears as they continue to be members of the body which elected them.
The quorum for a meeting of the Council shall be prescribed byStatute.”
Section 18 defines the powers and duties of the Council: some of thesecall for mention :—
“ 18. Subject to the provisions of this Act and of the Statutes,Regulations and Rules, the Council shall have and perform the followingpowers and duties :—
after consideration of the recommendations of the Senate, and
subject to ratification by the Court, but without prejudiceto anything done by the Council before such ratification,—
to institute, abolish, or suspend Professorships, Lecture-
ships, and other teaching posts, and
to determine the qualifications and emoluments of
teachers ;
to appoint officers whose appointment is not otherwise
provided for, and to suspend or dismiss any officer orteacher on the grounds of incapacity or conduct which, inthe opinion of net less than twc-thirds of the membersof the Council, rendeis him unfit to be an officer orteacher of the University;
(/) to appoint, and to suspend, dismiss or otherwise punish personsin the employ of the University other than officers andteachers ; ”
It is provided by section 31 that every appointment to a post of Professoror Lecturer in the University is to be made by the Council after consideringthe recommendation of a Board of Selection and by section 32 it isprovided that every appointment to a post of teacher other than that ofProfessor or Lectmer is to be made by the Council after considering therecommendation of a Selection Committee.
2*—R 3426 (1/65)
510 LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya
University v. Linus Silva
Section 33 is in the following terms :—
“33.(1) Every appointment of a teacher, Registrar or Librarian
shall be upon an agreement in writing between the Cmporation andsuch teacher, Registrar or Librarian. Such agreement shall—
(а)In the case of experienced persons who have already gained
distinction in their subjects, be for such period and on suchterms as the Council may resolve, and
(б)in other cases, be for a probationary period of three years
which may be extended by the Council by resolution for afurther period not exceeding one year, if the Council thinksfit.
(2) In the case of agreements entered into by the Corporation undersub-section (1) (6), any renewal thereof upon the expiration of theprobationary period shall be expressed to be and remain in force, subjectto the reservations hereinafter referred to, until the teacher, Registraror Librarian appointed thereby has completed his sixtieth year,or, if he completes his sixtieth year in the course of an academic year,until the last day of such academic year, and in any such agreementthere shall be expressly reserved—
(a) a right for the Corporation to annul the agreement on anyground on which it shall be lawful for the Council, underthe provisions of section 18 (e), to dismiss a teacher, Registraror Librarian ; and
(6) a right for the teacher, Registrar or Librarian to terminatethe agreement at any time upon three months’ notice inwriting to the Vice-Chancellor.”
By the Interpretation Section (section 61) “ officer ” means the Vice-Chancelloi, the Registrar, the Dean of any Faculty, the Librarian, or theholder of any office created by Statute and £t teacher ” includes Professor,Lecturer and any other person imparting instruction in the Universityand who is in receipt of an annual salary, or, in the case of a Bhikku,an allowance.
The first Vice-Chancellor of the University had power (see section 62)to make such appointments as he might think necessary for the purposeof bringing the University into being and for such purpose to exexciseany power which the Act conferred on any Authority of the University.
LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya 511
University v. Linus Silva
Pursuant to this power the Vice-Chancellor by letter dated the 35thMay 3959 appointed the respondent to “the post of Lecturer Grade Iin the Department of Economics The letter was in the followingterms :—
“3 5th Mav 1959.
Linus de Silva. Esqre.,
Dear Sir.
Post of Lecturer—
Department of Economics
With reference to the discussion you had with my AdministrativeAssistant, I am pleased to appoint you to the post of Lecturer Grade Iin the Department of Economics of this University. You will continueto be the Head of the Department and will represent it at the variousUniversity bodies.
The scale of salary attached to the post is Rs. 8,880/- to Rs. 13,200/—.Please acknowledge receipt of tnis letter.
Dharmasastronnatikami,
Vice-Chancellor.”
On the 1st September 3 960 the Vice-Chaocellor wrote to the respondent,in the following terms : —
“ Vidyoda/a University of Ceylon,
Colombo 10.1st Sept., 1960.
Linus Silva, Esq.,
Head of the Dept, of Economics,
Colombo.
Post of Professor and Head of theDept, of Economics & BusinessAdministration
In pursuance of the decision of the Council to establish a Dept, ofBusiness Administration in order to widen the scope of the Dept, ofEconomics, I am pleased to promote you to the Post of Professor andHead of the Dept, of Economics and Business Administration witheffect from the 1st October, 1960. The salary scale attached to thepost is Rs. 3 5,000/— 4 of Rs. 600/- and 4 of Rs. 900/-Rs. 23,000/—.You will be entitled to cost of living special living and rent allowancesaccording to Government Rates. You will continue to bo a contributorto the University Provident Fund.
This promotion is, however, subject to the passage of the UniversityBudget for 3960/61.
Please acknowledge receipt of this letter. I shall be glad if you willplease undertake the reorganisation of the Departments immediatelyso that the two Departments will commence academic woik from thebeginning of the Third Academic Year.
Sgd. Dharmasastronnatikami,Vice-Chancelloi.”
612 LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya
University v. Linus Silva
By letter dated the 2nd September I960 the respondent accepted theappointment.
On the 4th July 1961 the Vice-Chancellor sent a letter to the respondentterminating his appointment. The letter was in the following terms :—
“ Vidyodaya University of Ceylon,
Colombo 10.4th July 1961.
Mr. Linus Silva,
P. O. Box 1342,
Colombo 1.
Dear Sir,
Termination of Appointment
You are hereby informed that the Council at its meeting held on the4th of July 1961 has unanimously resolved to terminate yourappointment in the University as from to-day.
Tho Council has also decided to pay a sum equivalent to threemonths’ salary less whatever amounts are due from you. The totalnow due is Rs. 1,151.15, as snown in the Schedule hereunder.
I am hereby conveying to you the decision of the Council. I enclosethe cheque No. D/9 207613 for Rs. 3,346.15 (Three thousand threehundred and forty-six Rupees and Cents Fifteen only) ; being thebalance due to you in terms of the decision of the Council.
Any books, answer scripts or other property of the University nowin your custody should be returned by you.
Sgd. Dharmasastronnatikami,Vice-Chancellor.
Schedule referred to :—
ito. c.
Allowance as Head of Department overpaid since
appointment as Professor, Oct. ’60 to June ’61. .9000
Cost of Telegrams, paid from Petty Cash..665
Due on account of sale of Publications. .100
Lectures delivered by Mr. K. T. R. de Silva in Feb.
1961….235 50
Total Due..1,15115’’
The respondent thereupon made appb'cation to the Supreme Court ofCeylon by Petition dated the 8th August 1961. He sought mandates inthe nature of writs of certiorari and mandamus to quash the order ofthe Council and to direct the members of the Council (whom he made
LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya
University v. Linus Silva
513
respondents to liis Petition) to recognise him as Professor and Head ofthe Department of Economics and Business Administration. In hisPetition and in his Affidavit he stated that one member of the Councilwho was present at and participated in the meeting of the Council ofthe 4th July was biased against him and that the decision was thereforewrongful and illegal and that the order of the Council was made “ mali-ciously, unlawfully and for reasons extraneous to those contained insection 18E ” of the Act. He further submitted that the Council inordering his dismissal in terms of section 18E of the Act “ acted wrongfullyand unlawfully and in violation of the rules of natural justice by notmaking me aware of the nature of the accusations against me and alsoby not affording me an opportunity of being heard in my defence .”
In the statement of objections of the members cf the Council it wassubmitted that the application was misconceived in that the Councilwas not a judicial or quasi-judicial body but was the executive bodyresponsible for the administration of the University which did notmaintain a recc.d rnd did not make ordeis capable of being reviewed orquestioned Ly means of a writ cf certiorari and that a decision to terminatean employment could not be reviewed by way of certiorari. It wasfurther submitted that it was not a fit case for the exercise of a discretionto grant either certiorari or mandamus.
In an Affidavit of the Vice-Chancellor it was stated that there was aform of agreement for use on the appointment of teachers in the Universityand it was stated that the respondent had been given a draft agreementin the usual form in order that he should sign it but that he had failedand neglected to sign it. The paragraphs iu the form of agreementincluded the followirg :—
“ 1. The Professor agrees diligently and faithfully to perform suchduties as the Vidyodaya University may require him to undertake inaccordance with the Act and the Statutes, Acts and Regulations madethereunder and shall obey the lawful orders of the Vice-Chancellor.”
“ 4.(i) The Professor may terminate this agreement by giving to
the Vice-Chancellor three months’ notice in writing ending atthe end of a term.
{ii) If the Professor terminates this agreement otherwise than inaccordance with this agreement, the Vidy oday'a Universitymay' not be bound to pay to him any salary to which hewould otherwise have become entitled.
The appointment shall continue subject to this agreeement untilthe end of the session after, the Professor completes his fifty-fifth yearbut may by resolution of Council be extended for a further perioduntil the Professor attains his sixtieth year.
The VidyodayTa University may annul this agreement on anyground on which it may be lawful for the Council, under the provisionsof Section 18 of the Act to dismiss a teacher provided that the termsof that paragraph are complied with.
514 LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya
University v. Linus Silva
The Professor shall, as long as he is employed by the VidyodayaUniversity and has not completed his fifty-fifth year contribute to theVidyodajra University Provident Fund in accordance with Part VIII ofthe Act.”
In an Affidavit in reply the respondent denied that any draft agreementwas sent to him and stated his belief that no form of agreement was inexistence at any material time.
At their meeting on the 4th July the Council had before them a memo-randum prepared by the Registrar and also various other documents butit is common ground that the respondent was not shown these and wasnot told the nature of the accusations against him and was not givenan opportunity of being heard in his own defence. In a joint Affidavitit was stated by a number of members of the Council who were presenton the 4th July that they were satisfied that the respondent’s conductwas such that he was unfit to continue in the employment of the Univer-sity and that they were satisfied that the best interests of the Universitywould be served by the termination of the respondent’s appointment.They emphatically denied that their action was in any way actuatedby malice or that it was nob within the powers and duties imposed bysection 18 (e) of the Act.
Their Lordships have in no way been concerned to consider the mattersreferred to in the various Affidavits in reference to the conduct of therespondent. The sole issue raised in the appeal is whether it was appro-priate and competent for the Court to issue a mandate in the natureof a writ of certiorari. In the Supreme Court the appellants submittedthat even if it were competent for the Court to proceed to quash the“ order ” of the University Council there were various reasons why theCourt should not so proceed. Thus for example it was submittedthat the appellant had acquiesced in the discontinuance of his services.The submissions here referred to were however not advanced before theirLordships’ Board.
On behalf of the respondent it has not at any time been suggestedthat less than two-thirds of the members of the Council concurred inthe decision reached.
In his judgment in the Supreme Court the learned Judge (T. S. Fernando
J.) recorded that learned Counsel appearing for the appellants admittedthat the respondent was not informed of the accusations against himand was not afforded any opportunity of defending himself against thembut had contended that those circumstances were of no Relevance becausethe Council were not acting in a judicial or quasi judicial capacity butpurely in an administrative capacity. The learned Judge said :—
“ Learned counsel for the petitioner, while not disputing that indeciding whether the petitioner was unfit to be a teacher of the Uni-versity the Council acts in an administrative capacity argued that inmaking that administrative decision as to unfitness the relevant
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515
law required the Council to ascertain the existence of certain factffobjectively, and that in the ascertainment of these facts the Councilwas required to act judicially. It can hardly be doubted that, if inthe process of arriving at a decision as to unfitness of the petitionerto remain as a teacher the Council is throughout acting in an adminis-trative capacity, there is no room for the requirement of the observanceof the rules of natural justice. The application therefore turns onthe question whether at any stage in arriving at the administrativeor subjective decision as to unfitness the Council is required to considercertain matters judicially. If so, the Council would be amenable tocertiorari. If not, this application must fail.”
After referring to various authorities the learned Judge came to theconclusion that the Council was “ under a duty to act judicially at thestage of ascertaining objectively the facts as to incapacity or mis-conduct ” and that as they had not acted judicially (in the sense of givinga hearing after notifying the grounds of complaint) the respondent wasentitled to succeed. The sole issue involved in the appeal is whetherthere was as a matter of obligation a duty in the Council to give therespondent an opportunity to be heard and a duty to do all that in lawis denoted by the words “ act judicially
Certain of the authorities referred to by the learned Judge were casesdealing with other relationships than that of master and servant andtheir Lordships do not find it necessary to discuss those cases indetail. Some of them were referred to in the speeches in the House ofLords in Ridge v. Baldwin (supra). The case of Vine v. National DockLabour Board (supra) depended upon the special position of Hock Workerstmder the Hock Workers (Regulation of Employment) Act 1946 andthe Regulations which were made. As Lord Kilmuir L.C. said therewas “ an entirely different situation ” from the ordinary master andservant case : and as Lord Keith said there was not a " straightforwardrelationship ” of master and servant.
Under the Hock Workers (Regulation of Employment) Order S. R. &
O.1947 No. 13 89 deck workers are in the employment of the NationalHock Labour Board (see Clause 8 (2) of the Scheme) but are thenallocated (see Clause 4) to work fer individual employers. There arehowever certain statutory limitations on the power of dismissal(see Clauses 3 6, 3 7 and 18 of the Scheme).
Vine was allocated work with a stevedoring company but failed toreport to them. There was a complaint lodged with the National HockLabour Board. The complaint was heard by a disciplinary committeeappointed by the local dock labour board. They upheld the complaintand, purporting to act under Clause 16 of the Order, gave Vine noticeto terminate his employment with the National Hock Labour Board.He appealed to a tribunal set up under the scheme. The appeal wasdismissed. He th m brought an action claiming damages and claiminga declaration that his purported dismissal was illegal, ultra vires antivoid. It was held that his dismissal was invalid inasmuch as the loca I
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University v. Linus Silva
dock labour board bad no power under the scheme to delegate thedisciplinary powers to a disciplinary committee. The decision of thedisciplinary committee was therfore a nullity. The House of Lordsheld that in the circumstances of the case and having regard to thebackground of the scheme it was proper that the Court should declarethe plaintiff’s rights. His name bad not been validly removed from theregister and he continued to be in the employ of the National Board.
In that case therefore there was a statutory scheme which gave anumber of rights and imposed a number of obligations going far beyondany ordinary contract of service and, in his judgment in the Court ofAppeal, Jenkins L.J., having examined the scheme said :—“ In theface of thos j provisions, to my mind, it becomes plain that no analogyto this case can be found in the case of master and servant/'
No case was cited to their Lordships in which an order of certiorarihas been made directing the quashing of an "order” of dismissal of aservant and their Lordships do not consider that support for the respon-dent’s contentions is to be derived from the case of Fisher v. Jackson1upon which reliance was placed. It was rather a special case. A deedof trust establishing an endowed school provided that the master of theschool should be appointed by the vicars of three specified parishes andpower was given to the three vicars to remove the master for certainspecified causes. The plaintiff was appointed master of the school inApril 1890 and in December 1890 two of the vicars served on him anotice of dismissal signed by themselves which stated certain reasonsfor his dismissal. No meeting of the vicars had been summoned toconsider the question of the plaintiff’s dismissal and he had not hadany opportunity cf being heard in his defence. There was no evidencethat the third vicar had been consulted. Tbe Court granted an injunctionrestraining the defendants from removing him from his office until afterthe holding of a meeting of the vicars in accordance with the terms of theDeed of Trust and until he should have had an opportunity of beingheard at such meeting. That case was referred to in the House ofLords in Ridge v. Baldwin (supra) and was treated (see page 67) as acase where the plaintiff was the holder of an office.
In a straightforward case where a master employs a servant the latteris not regarded as the holder of an office and if the co itract is terminatedthere are ordinarily no questions affecting status or involving propertyrights, it becomes necessary therefore to consider whether in thepresent case there are any features which suggest a relationship otherthan that of master and servant. It was subnutted on behalf ofthe respondent firstly that if someone has the power to determine whatthe rights of an individual are to be then a duty to act. judicially arisessimply from the nature oi the power, and secondly that where the poweris a power to dismiss from an office (and it was contended that therespondent, could be said to be the holder of an office) and to dismissnot at discretion but by reason of misconduct then there is a duty toact judicial^. In their Lordships’ opinion the first of these submissions
1 [189J] 2 Ch. 84.
LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya 517
University v. Linus Silva
is too wide and cannot be accepted. The second calls for an examinationof the position which the respondent occupied having regard to thefacts concerning his appointment and having regard to the provisionsof the Act. It was contended that the respondent had certain statutoryrights and that certioraii could be granted in order to enforce themand in order to ensure obedience to the provisions of the Act.
It appears to be common ground that the respondent did not sign theform of agreement which was referred to in his Affidavit by the Vice-Chancellor. The respondent was undoubtedly a “teacher”. Was hisappointment within tne scope of section 33 (1) (a) or was it within section33 (1) (6) ? There mav not be adequate evidence to enable a conclusionto be reached as to this or as to whether the appointment could havebeen terminated by the giving of some specific period of notice. Nosuch notice was however given. What took place was that the respondentwas dismissed in purported reliance upon the power of dismissal reposedin the Council by section 18 (e) of the Act. The provisions of that sectionmake a distinction between an “ officer or teacher ” (see section 18(e))and “ persons in the employ of the University ether than officers andteachers ” (see section 18 (/)). In regard tc persons within the lattergrouping the ordinary law of master and servant would apply. Anofficer or teacher on the other hand may be suspended or dismissed “ onthe grounds of incapacity or conduct which, in the opinion ( f not lessthan two-thirds of the members of toe Council, renders him unfit to bean officer or teacher of the University.” These are solemn powers withwhich the Council is entrusted. It may be assumed having regard to thecomposition of the Council that the legislature had confidence that thepowers would be exercised with a full sense of responsibility and rvitha desire to do what was right and fair. In many situations doubtlessthe Council would wish, quite apart from any question as to any obligation,to give an opportunity to anyone whose capacity or conduct was inquestion to offer explanation or justification. It is not for their Lordshipsto say whether or not that course would have been desirable oi helpfulin the present case. The limited and rather narrow question for theirLordships is whether there was an obligation to take the course of actingjudicially.
Though the groups of “ officers and teachers ” are both liable underand within section 18 (e) to be dismissed or suspended by the Council itdoes not follow that the relationship towards the University is the samein the case of both groups. Thus for example it may be that the Vice-Chancellor or some other “ officer ” is in a different position from that ofa “ teacher Their Lordships do not have to decide that question orto express any opinion in regard to it. Nor does the definition of an“ officer ” which is contained in section 61 necessarily and of itself bringit about that for the purposes now being considered an “ officer ” is notwithin the ordinary relationship of master and servant. It is to beobserved further that there is no provision in tLe Act giving a right to
518 LORD MORRIS OF BORTH-Y-GEST—University Council of Vidyodaya
University v. Linus Silva
be heard nor any provision as to any right of appeal to any other body.The present case is not one therefore in which there has been a failureto comply with statutory provisions.
The circumstances in the present case differ from those which existedin the cases of Suriyauansa v. The Local Government Service Commission1and AbeyagunasJcera v. Local Government Service Commisdov 2 and theirLordships do not find it necessary to discuss those cases ; there wereRules which laid down the manner in which charges against someonein the service of the Commission were to be examined.
It seems to their Lordships that a “ teacher ” who has an appointmentwith the University is in the ordinary legal sense a servant of theUniversity unless it be that section 18 (e) gives him some altered position.
The circumstance that the University was established by statute andis regulated by the statutory enactments contained in the Act does notinvolve that contracts of emplojunent which are made with teachers andwhich are subject to the provisions of section 18 (e) are other than ordinarycontracts of master and servant. Comparison may be made with thecase of Barber v. Manchester Regional Hospital Board 3. In his judgmentin that case Barry J. (at p. 196) said “ Here despite the strong statutoryflavour attaching to the plaintiff’s contract I have reached the conclusionthat in essence it was an ordinary contract between master and servantand nothing more.”
It may be said that if those or some of those who are “ officers ” ofthe University have a special position which takes them out of thecategory of employed servants, as to which matter their Lordshipsexpress no opinion, and if as a result the Council would in their casehave to act judicially in exercising the power of dismissal undersection 18 (e), it would seem strange if it were different hi the case of“teachers” who are linked wdth “officers” in section 18 (e). Anydifference would however only be a consequence of the application of thelaw to the facts. The present case depends therefore upon ascertainingthe status of the respondent. He invoked a procedure which is notavailable where a master summarily terminates a servant’s employmentand for the reasons winch have been expressed their Lordships do notconsider that the respondent was shown to be in any special positionor to be other than a servant.
Their Lordships will therefore humbly advise Her Majesty that theappeal should be allowed and that the Order of the Supreme Courtdated the 22nd November 1961 be set aside. The respondent must paythe costs before the Supreme Court and the costs of the appeal.
The respondent must have his costs of the consent petition to enablethe appeal to he set down for hearing without further Orders of Revivorand there will be a set-off.
Appeal allowed.
(1947) 48 X. L. R. 433.2 (1949) 51 X. L. R. 8.
(1958) 1 W. L. R. 181.
1