S.C. No. 52/85.
0»A. No. 851/83.
JUNE 2. 3, 4 AND 5. 1986.
Writs of Certiorari and Mandamus—Natural justice-Presentation of witnesses forcross-examination-Information of the Charge-Legal representation.
The petitioner a university student was found guilty of taking into the Examination Hallthree unauthorised loose sheets containing information relating to the subject of thequestion paper which were found by the examiners attached to her answer scripts. Shewas suspended from sitting any Unit Examination for three years. She appealed againsttAtis finding and punishment to the Vice-Chancellor who appointed a sub-committee tohear it. The sub-committee affirmed the findings of the Examination Committee and thepunishment imposed. She sought in, the Court of Appeal a quashing of these orders byway of certiorari and an order directing release of her results by way of mandamusalleging that natural justice was denied to her and that she had been denied theassistance of legal representation. The Court of Appeal refused her application andfrom this order she preferred an appeal to the Supreme Court.
Held- .
There was no failure to observe the principles of natural justice. The petitioner wasmacj,e aware of the particulars of the offence she was alleged to have committed andthe names of those who had testified against her and the gist of what they had said.She had not sought to cross-examine any of these witnesses. A tribunal like theExamination Committee exercising quasi-judicial functions is not a Court and thereforeis not bound to follow the procedure prescribed for actions in courts nor is it bound bystrict rules of evidence. It can unlike a Court obtain all information material for the issuesunder inquiry from all sources and through all channels without being fetterred by rulesof procedure. Where its procedure is not regulated by statute, it is free to adopt aprocedure of its own. so long as it conforms to principles of natural justice. It is equallytree to receive evidence from whatever sources provided it is logically probative. Theonly obligation which the law casts on the Tribunal is that it should not act on any• information which it may receive unless it is put to the party against whom it is to beused and gives him a fair opportunity to explain or refute it. A party who does not wantto controvert the testimony gathered behind his back cannot complain that there was noopportunity of cross-examination especially when it was not asked for.
~U~- —
A tribunal can act on hearsay evidence subject to the overriding obligation to providea fair hearing and a fair chance to exculpate himself and to controvert the evidenceagainst him to the person whose conduct is being inquired into. However there is norequirement of cross-examination to be fulfilled to justify fairplay in action when therewas no demand for it.
The petitioner was informed of the material particulars of the charge and there wasno substance in the allegation that she did not know the particulars of the charge.
There is no right to legal or other representation but this may be allowed at thediscretion of the Tribunal.
Cases referred to:
(1) Board of Education v. Rice-11911] A.C. 179. 182.
12) The University of Ceylon v. Fernando-! 1960) 61 N.L.R. 505. 513. 515. 519.(P.C.).
L. C. B. v. Arlidge-[1915] A.C. 120. 132.
Kandav. Government of Federation of Malaya-( 1962] A.C. 322.
R. v. Deputy Industrial Injuries Commissioner ex parte Moore-[1965] 1 All E.R.81.84. 93.
General Medical Council v. Spackman-[ 1943] A.C. 624. 634.
R.v. Hull Prison Board of Visitors-[ 1979] 3 All E.R. 540. 553.
T. A. Miller Ltd. v. Minister of Housing and Local Government-[ 1968] 2 All E. R.633; [1968] 1 W.L.R. 922.
Kavannah v. Chief Constable of Devon-[ 1974] 2 All E.R. 697.
Fraser v. Mudge-[1975] 3 All E.R. 78.
Pettv. Greyhound Racing Association Ltd. No. (2)-[1969] 2 All E.R. 221. 231.
Enderby Town Football Club v. Football Association Ltd.-[1971] 1 All E.R. 215.218.
R. v. Secretary of State [ 1984] I All E.R. 799.
APPEAL from judgment of Court of Appeal reported at [1985] 1 S.L.R. 244.
Dr. H. W. Jayewardene. Q.C. with L. C. Seneviratne, P.C., Lakshman Perera and MissT. Keenavinna for petitioner-appellant.
K. N. Choksy. P.C. with I. S. de Silva, Miss I. R. Rajepakse and Miss T. Rodrigo forrespondents-respondents.
Cur. adv. vult.
July 15. 1986.
The petitioner-appellant (hereinafter referred to as petitioner) was at alltimes relevant to this appeal a student,of the University of Colombofollowing the Science (Hons) Degree Course, for a degree in Zoology(Special) in Parasitology. The petitioner sat for the final examination in1982. The petitioner had sat for Part I and Part II -in papers inParasitology of the Final Examination on the 18th and 21st June1982, Prior to that the petitioner had sat for the Organic Chemistry C.
203 paper. This was a second year Examination paper. The petitionerhad failed in 1980. The result of the papers was given on 7.6.82 andthe petitioner was unsuccessful at the examination.
The 1st respondent is the University of Colombo, a bodyincorporate established under the provisions of sections 21 & 28 ofthe Universities Act, No. 16 of 1978. The 2nd to 5th respondents aremembers of the Sub-committee appointed by the Vice-Chancellor ofthe University to hear the appeal made by the petitioner appellant tothe Vice-Chancellor, against the decision and punishment imposed onher by the Examination Committee for an examination offence allegedto have been committed by her in respect of the Chemistry C. 203paper for which she has sat on 21.4.82. The 6th respondent is theSenior Assistant Registrar (Examinations) in the University ofColombo.
On or about 1 7th July 1982, .the petitioner received a letter dated1 6th July 1 982 from the 6th respondent requesting the petitioner tomeet Dr. 0. Jayaratne. Senior Lecturer in Physics, on 21.7.82. Thepetitioner met Dr. 0. .Jayaratne on 21.7.82. as requested. Dr. (Mrs)Seneviratne, the Head of the Department of Botany, was also present.Dr. (Mrs) Seneviratne told the petitioner that some papers had beenfound attached to her answer scripts of the Organic Chemistry C. 203Examination for which the petitioner had sat on 21 st April 1982. Thepetitioner then denied that any such papers were attached to theanswer script. The petitioner was shown the three loose sheets ofpaper containing notes on Chemistry which were alleged to have beenattached to the petitioner's answer script. The petitioner had deniedthat she had attached those loose papers to the answer script andalso denied that those loose sheets of paper were in her handwriting.The petitioner was not shown the answer scripts in question. Thepetitioner then made a written statement denying she had attachedthe said three sheets of papers and further that those papers were inher handwriting. This statement was handed over by her to Dr.Jayaratne, and at the request of Dr. (Mrs) Seneviratne, she markedthe three sheets of paper X, Y, Z and signed and dated them 21 st July1/382 at the top of each of the said sheets of paper. Subsequently on019th August 1982 the petitioner received the letter dated 17.8.82(P1) from the Senior Assistant Registrar (Examinations), informing herthat she had been found guilty of an examination offence and that theExamination Committee had at its meeting of the 2nd August 1982decided that her candidature at the April 1982 Unit Examination be
cancelled and* that she be debarred from sitting for any UnitExamination for a period of 3 years. By her letter dated 23rd August1982 (P2) the petitioner appealed to.the Vice-Chancellor against thedecision of the Examination Committee. In paragraph 7 of this appealthe petitioner stated:
Paragraph 7 –
"When I met Dr. Jayaratne on the 21st July 1982 (Mrs)Seneviratne. the Head of the Department of Botany was alsopresent. Dr. (Mrs) Seneviratne then told me that some papers hadbeen found attached to my answer script of the C. 2Q3 OrganicChemistry Paper. I denied that any such papers were attached to myanswer script. I was then shown 3 sheets of papers and I furtherinformed Dr. (Mrs) Seneviratne that these papers were not in myhandwriting. At the time these 3 sheets of paper were shown to methey were not attached to my answer scripts. I was not shown myanswer scripts. These papers were 3 loose sheets of papercontaining some notes of Chemistry."
In this appeal P2, which,appears to have been drafted by anAttorney-at-Law, petitioner sets out the following four grounds of
appeal, namely:- ’1 •.•••>•:
•• •• • • •
She was not given, notice of. any, (inquiry that yvas going, to beheld against her, nor any notice of a charge, that she had orwas alleged to have committed an examination offence; , •
She was given no adequate opportunity of being heard orproperly presenting a case -against any charge
The decision of the Examination Committee was arbitrary and
unilateral and contrary to-all principles of’fairness."
The decision of the Examination Committee is contrary to factsandJaw..
By P2 she prayed that the decision of the' Examination Committee
contained in letter dated’17th August 1982 (PI) be quashed.
By letter dated 19th November 1982 (P4) the petitioner wasinformed by the 6.th respondent that the .inquiry into her appeal wouldbe heard by. the Board,*pf Appeal appointed by; the Vice-Chancellor onthe.; 25th- November 1982;.Jrhqyghi,the, petitioner, has not ..chosen todisclose what happened i,at„this inquiiy, the respondents have in
292 Sri Lenka Law Reports[ 1986] 2 Sri L.R.
paragraph 9 of their Statement of Objection set out what happened atthe inquiry, as follows:
'The said'Committee granted the petitioner an opportunity of
being heard in support of her appeal on 25.11.82 and she was alsoshown her answer books consisting of three books (Index No.NS1811) despite same is not normally shown to candidates, andalso the said three sheets marked X. *Y‘ and 'Z The petitionerwas asked by the Commjttee whether she had any further or othermaterial or evidence to place before the Committee, but thepetitioner had none.’
Thereafter by letter dated 18th April 1983. (P7) the Vice-Chancellorinformed.‘the petitioner that the Report of the Sub-committeeappointed by him to consider her appeal against the decision of theExamination Committee was considered by the Committee on the 6thApril 1983 and that the Committee after careful consideration of theReport and the petitioner's submissions agreed that she was guilty of. an Examination offence and recommended that the punishmentre/erred to in letter dated 17.8.1982 (P1) should stand.
The petitioner then preferred an application to the Court of Appealto grant and issue an order in the nature of Writ of Certiorari quashingthe decision of “the Examination Committee contained in the letterdated '18th April 1983 (P7) and also for a Writ of Mandamus directingthe respondents to release the results of the petitioner in respect ofthe final examination in Parasitology 1982.
The grounds urged in her application for the grant of Writ are asfollows
that the petitioner was .not served with any charge sheet at anytime relating to the particular offence which the petitioner was
– accused of committing
the evidence at the said inquiries against the petitioner was notled in the. presence of . the petitioner, nor vyas the petitionerprovided, with the copies of the proceedings b.efore theaforesaid Committee conducting the inquiries referred to
• above.,-
l'(c) the petitioner was ’questioned by Dr. (Mrs) Seneviratne and themembers of'the:Sub-committee as stated above but was not''-made aware1 of‘the evidence against the petitioner though thepetitioner requested to be'informed of such evidence;
'(d) the petitioner asked the Sub-committee at the second inquirywhether the petitioner could be represented by another personat the said inquiry but the Sub-committee decided that it wasnot necessary at this stage for the petitioner to be representedat the inquiry;
(e) the petitioner had no opporunity of meeting the evidenceagainst the petitioner ;
(ft the petitioner was not given a proper or adequate opportunity ofpresenting the petitioner's case before either the ExaminationCommittee or the Sub-committee which heard the petitioner'sappeal.
The respondents denied the allegations of the petitioner and amongothers the Vice-Chancellor, Dr. Jayaratne and Dr. (Mrs) Seneviratne,the sixth respondent and Professor Kannangara who was thesupervisor at the petitioner's examination on 21st April 1982 filedaffidavits in support of the objections to petitioner's application.
In their joint affidavits dated 25.1.84 Dr. Jayaratne and Dr. (Mrs)Seneviratne state that-
"The petitioner presented herself at an inquiry before us on 21stJuly 1982 whereat she was shown the three sheets of paper whichwere found tied up with her answer books, and she was informed ofthe charge and the evidence against her and given every opportunityof meeting same and presenting her position. The inquiry wasconducted by us in the manner set out in paragraphs 5(b) to (i) and10(i) and (ii) of the Statement of Objections."
It is stated in the said paragraph 5(b)-
"Dr. (Mrs) Seneviratne informed the petitioner that the threesheets of paper (subsequently marked as 'X', 'Y' and 'Z') andcontaining notes on Chemistry were found tied up to her answerbooks and that accordingly Dr. Jayaratne and herself had beenrequested by the Vice-Chancellor to inquire into and report whetherthe petitioner had committed an examination offence by bringing'
• into the Examination Hall unauthorised material."
Para 5(e) "The petitioner was informed by Dr. Jayaratne and Dr.(Mrs.) Seneviratne that they had questioned the Examiners whostated that the said three sheets were found tied up with her answerbooks."
0 Para 5(f) "The petitioner was also informed that the Supervisor(Prof. M. L. T. Kannangara) and the Invigilators (Dr. S.Hettiarachchi, Dr. A. N. Abeywickrema and Dr. R. Abeysundera)had been interviewed and had stated that no loose sheets wereissued to candidates and that only complete books of eight pagesinitialled by the Supervisor and containing the date stamp had beenissued to candidates both originally and also for continuation."
Para 5(g) "It was pointed out to the petitioner that the said threesheets were not part of a complete book, but were loose sheets,and were University stationery. It was also pointed out to her thatthe date stamp on the said three sheets bore the date 1 9th August1981 on which date she had sat another course Unit ExaminationZ.305 at the University.
Para 5(h) "The petitioner's attention was called to the fact thatthere were clear fold marks on the said sheets 'X'. 'Y' and 'Zfurther that the Supervisor had announced at the end of theExamination that all answer books of each candidate be tiedtogether, and that the invigilators had confirmed that they had goneround the Hall to ensure that this was done by all candidates."
Para 5 (/) "The petitioner was questioned as to whether she couldoffer any explanation as to how or why or by whom the said threesheets came to be tied up with her answer books in view ofprocedures followed both during and after the Examination toensure that answer books do not get into unauthorised hands orthat unauthorised persons do not have access to the same, but shewas unable to offer any explanation."
In Para 10 it is stated-
"(i) that the petitioner was informed of the charge against her andwas at all times aware of the same.
,(ii) The petitioner was made aware of the aforesaid materialgathered by Prof. Jayaratne and Dr. (Mrs) Seneviratne from theexaminers, supervisors and invigilators and given theopportunity of meeting or explaining the same and presentingher case. The relevant procedures were also brought to the• notice of the petitioner."
Professor Kannangara of the University of Colombo has in hfsaffidavit stated as follows- ■
"1. I was the Supervisor in charge of the Course Unit Examination C203 held by the University of Colombo, whereat the petitionersat for the Organic Chemistry paper on 21 st April 1 982.
I have perused the Statement of Objections of the firstrespondent and the other respondents filed in theseproceedings and I affirm to the correctness of the same. Withparticular reference to paragraph 5(f) of the said Statement ofObjections, I state that I only issued to candidates completebooks of eight pages each bearing the date stamp 21st April1982 and initialled by me, both initially and for continuation. Noloose sheets were issued at this examination.
I state that at the end of the examination, I instructed allcandidates to tie up their answer books together and handthem over to the invigilators.
The invigilators went round the Hall to ensure that this wasdone by candidates…."
In her affidavit dated 21.4.84. the 6th respondent has stated asfollows:
…"3. I state that the petitioner sat for the Organic ChemistryPaper at the Course Unit Examination Z.305 held on 19th August1981 at which examination candidates were issued with loosesheets of paper which bore the University date stamp 1 9th August1981…."
Dr. Jayaratne and Dr. (Mrs) Seneviratne have appended to theiraffidavit their Report 'R 1' which they forwarded at the conclusion ofthe Inquiry to the Vice-Chancellor. This Report is dated 28th July1982, long before the present proceedings. This Report 'R1' throwslot of light on the issues arising in this case. It contains a clear analysisof the evidence and probabilities. It is a very fair and exhaustive Reportwhich has considered the case for and against the petitioner very fully.
It gives the lie to the averments of the petitioner that she was not givena fair hearing. This Report reads as follows:
By letter dated June 28. 1982 the Vice-Chancellor appointed us-Dr. A. S.Seneviratne (Head/Botany) and Dr. 0. W. Jayaratne-to inquire into the allegedoffences mentioned above and to submit a report of our findings to theExaminations Committee of the University of Colombo (Annex A).
This step was taken on the basis of a letter dated June 25. 1982. addressed tothe Head/Chemistry by the four examiners who set and marked the paper C. 203(Organic Chemistry). These examiners were Prof. M. Mahendran. Dr. L. M. V.Tillekeratne, Dr. A. P. de Silva and Dr. D. M. R. S. Abeywickrema. all of theChemistry Department (Annex B).
On our request the SAR/Examinations supplied us in wiriting with the followinginformation pertaining to examination C 203 (Annex C):-
Place and date of examination: K. G. Hall, April 21. 1982.
Supervisor: Prof. M. L. T. Kannangara.
Invigilators: (1) Dr. L. M. V. Tillekeratne-Chemistry
Dr. S. Hettiarachchi-Chemistry
Dr. A. N. Abeywickrema-Chemistry
Dr. R. Abeywickrema-Chemistry
Hall Attendant: Mr. M. Somasiri.
The letter addressed to the Head/Chemistry (Annex B) by the four Chemistry’ staffmembers claimed that the answer scripts of candidates S 256 and NS 1811 inthe Course Unit Examination C 203 held on April 21. 1982. "included somesheets with date seals different from that of the examination date."
We obtained the scripts referred to from the SAR/Examinations (on the advice o!the Dean/Science) and studied them carefully. We also interviewed thefollowing:
Prof. M. Mahendran. Drs. L. M. V. Tillekeratne. A. P. de Silva and D. M. R..S. Abeywickrema (Examiners).
(£>) Prof. M. L. T. Kannangara (Supervisor).-
(c) Drs. S. Hettiarachchi, A. N. Abeywickrema and R. Abeywickrema*(Invigilators).
0Dr. Tillekeratne, though invited to be an invigilator, had been excused from
athat duty on his request.
(P) The candidates (No. S 256 and NS 1811) who are alleged to havecommitted the examination offence.
"V ——" ~–
(6) Our findings are as follows:-it
Candidate No. S. 256-(Mr. M. A. S. D. Upali)
The last sheet of his script was a loose one. tied to the rest of the answerscript. It was date stamped 31 December. 1981.
Several Organic Chemistry reactions and formulae were written on bothsides of the last sheet.
The evidence of the examiners, who were interviewed individually indicated
that most of the material on this sheet had no direct relevance to thequestions in paper C 203. although, here and there some indirectconnection might be detected..
On 31 December 1981. candidate S 256 had sat the paper AM 103 (seeAnnex C). This information was given by the SAR/Examinations andsubsequently confirmed by the candidate himself.
In other words candidate S 256 had the opportunity of removing from theexamination hall blank sheets bearing the seal '31 Dec. 1981.'
The Supervisor Prof. M. L. T. Kannangara. testified to the fact that evenbefore Faculty instructions had been given he had insisted as supervisor, thatno loose sheets were to be given to candidates-only complete books of 8pages. The candidates were told that these books should be returned intact.
These instructions were endorsed by the invigilators in their evidence to us.
(0 The Supervisor had initialled the cover of every answer book issued.However, the loose sheet at the end-contrary to instructions and with adifferent date stamp-bore no such initials. Prof. Kannangara, on beinginterviewed stated and certified on this sheet that it was not issued with hisinstructions. (Please see script of S. 256 attached hereto).
The first set of books was laid on the tables, after the Supervisor had intialledthem and the date stamps impressed upon them, by the Hall attendant. Allsubsequent answer books were also initialled on their cover by theSupervisor.'and issued to candidates on request only by the invigilators.
Immediately the examination was over, the Supervisor sternly warnedcandidates that every scrap of paper in their possession-barring identitycards and admission cards-must be tied to the answer scripts. Theinvigilators went round the Hall and kept an eye on candidates to make 3urethat this order was carried out.
(/) There are clear fold marks on the last page submitted by S 256 – indicatingthat this page was probably brought into the Hall, perhaps enclosed in theenvelop containing the admission card.
• o (j) The case of candidate $ 256 became clear when we interviewed him. Onbeing confronted with the evidence, he unhesitatingly admitted that:
he had brought the paper in question into the examination hall, and
•(ii) had tied it up with the main answer script (Annex D signed by candidate.S 256).
(7) Candidate No. NS 1811 – (Miss D. L. C. de Silva – the petitioner in this case).
(a) The main, observations regarding the previous candidate apply in this casetoo. The Supervisor has again certified on the loose sheets attached to theend of the answer script that they were not issued with his authorisation.
-This candidate had three loose sheets tied’to her answer script, whichcontained various organic chemistry reactions and formulae, which theexaminers claimed had no direct relevance to the questions set.
These three sheets were date stamped ‘ 19 August 1981".
From the information supplied by the SAR/Examinations, this candidate had' set the Course Unit.Examination Z:‘305 held on 19 August 1981 (Annex C).
Therefore, she had the opportunity of removing loose sheets on that. occasion with the date stamp 1 9th August 1981.
.,As in-the .case, of the, previous candidate. there;were clear told marks on the…….vthreeiloose. sheets attached at the end of the answer.script.
When confronted with the evidence however, this candidate stated:
. (i) „ ttiat the handwriting on the last three loose sheets was not hers, and(ii) that she had not attached the said papers to her answer script.
She is a‘4th year'Zoology (Special) student. She expressed shock that such anallegation.could-be made about her and insisted that it was not in her characterHo dosov-
We made every effort to convince her that if she told us the truth there might bemitigating "circumstances ' which the Examinations 'Committee might perhapsconsider inynaking its final decision.
We also pointed out to her that the:three last pages.could have been tied to heranswer .script only by (i) herself, (ii) an invigilator (iii) the Supervisor or (iv) theexaminers. No;'one”else'could have had1 access to’the' papers since they were■packeted'andnsealed-under the watchful eye of'the Supervisor, and the sealswere intact when the examiners took charge of the packet:
However, she insisted on her denials. Accordingly.‘we asked her to'give us awritten statement which is attached hereto (Annex E).
(Sb-W.e haveiPbserved-certain.similarities be.tween the main, answer script andthe last three pages in respectof the following letters;-H, d. N. B, a. p.
Conclusions and Recommendations
Candidate S 256:
We feel it is proven beyond doubt that this candidate did bring a sheet containingorganic chemistry reactions and formulae to the examination hall. This is confirmed byhis own written admission (Annex D).
. However, in view of his honest and prompt admission of guilt, we recommend that, inmaking a decision the Examinations Committee should keep this fact in mind.
Candidate NS 1811:
Two questions arise in respect of this candidate: ■
Who was responsible for tying the last three pages which have no directrelevance to the questions in C 203 and which also have clear fold marks-to themain answer script?
These three pages bear no index numbers and we cannot imagine that anymembers of the science academic staff, even if he or she discovered them lyingon a table, would have tied them to a particular script without the knowledge ofthe candidate or the Supervisor.
Is the handwriting on the last three loose papers the same as that on the mainanswer script? We have already referred to certain similarities in handwriting.
However, we are not handwriting experts, accordingly, we recommend that beforetaking any action, punitive or otherwise, the Examinations Committee should refer thesepapers, along with the main answer script, to a handwriting expert for his opinion.
If there is a difference between the handwriting on the loose sheets and the mainanswer script, we would like to point out that there is just a possibility that someoneelse may have been induced to write the material on the loose sheets.
General Comment
We would like to stress that these irregularities would never have come to light but forthe extreme strictness of the supervisor and his team of invigilators, as well as thesense of duty displayed by the examiners. We wish to commend them.
Sgd. Dr. A. S. Seneviratne.Sgd. Dr. O. W. Jayaratne.
University of Colombo,Colombo 3.
28th July, 1 982."
[1986] 2 Sri L.R.
* As recommended by the Report 'R1the opinion of the handwritingexpert was obtained. But in that report the handwriting expert was notin a position to give a definite opinion, whether these loose sheets 'X'.‘Y’ and 'Z' were in the handwriting of the petitioner or not.
The respondents averred that in view of the inability of thehandwriting expert to give a definite view whether documents 'X'. 'Y'and 'Z' were in the handwriting of the petitioner, the handwriting wasnot a matter taken into account against the petitioner. But they statedthat possession of unauthorised material by a candidate in anExamination Hall constitutes by itself an offence, in whosoever'sharfdwriting or otherwise the same may be.
The Report 'R1' was not faulted by the petitioner and no allegationwas made by the petitioner that any of the witnesses who wereinterviewed by Dr. Jayaratne and Dr. (Mrs) Seneviratne and whoseevidence was the basis of the Report 'R1', were animated by any biasor mala fides against the petitioner. According to that Report, when thepetitioner was confronted with the evidence against her, her onlyresponse was that she did not attach the said papers to her answerscript.
The Court of Appeal by its judgment dated 10.5.85, refused thepetitioner's application for a writ with costs fixed at Rs. 250. Thepetitioner has now preferred this appeal to this court.
A tribunal like the Examination Committee exercising quasi-judicialfunctions is not a court and therefore is not bound to follow theprocedure prescribed for actions in courts nor is it bound by strict rulesof evidence. It can, unlike a court obtain all information material for theissues under inquiry from all sources and through all channels, withoutbeing lettered by rules of procedure which govern proceedings incourts. Where its procedure is not regulated by statute, it is free toadopt a procedure of its own, so long as it conforms to principles ofnatural justice. It is equally free to receive evidence' from whateversource provided it is logically probative. The only obligation which thelaw casts on it is that it should not act on any information which it mayreceive unless it is put to the'party against whom it is to be used andgive?him a.fair opportunity to explain or refute it.
In his submission before us counsel for the petitioner said that thepetitioner was not told who was the examiner who found those loosesheets tied to the answer script. According to Dr. Jayaratne and Dr.(Mrs) Seneviratne, the petitioner was told that all the examiners had
stated that the three sheets were found -tied with her answer booksand that she was questioned as to whether she could offer anyexplanation as to how or why or by whom the.said three sheets cameto be tied up with her answer books in view of the procedure followedboth during and after the examination to ensure that answer books donot get into unauthorised hands, but she was unable to offer anyexplanation. The petitioner in the affidavit omits to refer to the fact thatshe was told by Dr. Jayaratne and Dr. (Mrs) Seneviratne, that theexaminers had stated that the three sheets were found tied up withher answer books. The petitioner had not filed any counter-affidavitdenying this averment made by Dr. Jayaratne and Dr. (Mrs)Seneviratne. It is clear that the petitioner was communicated the gistof what had been gathered in her absence; even then, she did not askfor any opportunity to cross-examine the witnesses regarding thetruthfulness of the material that was gathered against her nor on thecredibility of the persons who had given evidence. A party who doesnot want to controvert the testimony gathered behind his back cannotcomplain that there was no opportunity of cross-examination speciallywhen it was not asked for. It is to be noted that even in her appeal (P2)to the Vice-Chancellor, she had not stated that the statement made bythe examiners was untrue nor asked that she be given an opportunityto demonstrate the untruth or to cross-examine them.
The generality of application of the audi alteram partem maxim andits flexibility in operation were brought out by Lord Loreburn, L.C. inBoard of Education v. Rice (1):
"In such a case the Board of Education will have to ascertain thelaw and also to ascertain the facts. I need not add that in doingeither they must act in good faith and listen fairly to both sides, forthat is a duty lying upon everyone who decides anything. But I do.. not think they are bound to treat such a question as though it were a'trial. They have no power to administer an oath and need notexamine witnesses. They can obtain information in any way theythink best, always giving a fair opportunity to those who are partiesin the controversy for correcting or contradicting anything prejudicialto their view."
The House of Lords enunciated the above legal principle in a casewhere it had to decide whether the Board of Education had proparlydetermined a dispute between a body of school managers and theLocal Education Authority.
• LQrd Jonkins' delivering the judgment of the Privy Council in TheUniversity of Ceylon v. Fernando (2) stated at page 513-
"It appeared to Their Lordships that Lord Loreburn's much quotedstatement in Board of Education v. Rice (supra) still affords as gooda general definition as any of the nature of and limits upon therequirements of natural justice in this kind of case. Its effect isconveniently stated in this passage from the speech of Lord Haldanein the case of L. C. B. v. Arlidge (3) where he cites it with approval inthe following words :
'I agree with the view expressed in an analogous case by my°noble and learned friend Lord Loreburn. In Board of Education v.Rice, he laid down that, in disposing of a question which was thesubject of an appeal to it, the Board of Education was under aduty to act in good faith, and to listen fairly to both sides,inasmuch as that was a duty which lay on everyone who decidedanything. But he went on to say that he did not think it was boundto treat such a question as though it were a trial. The Board hadno power to administer an oath, and need not examine witnesses.It could, he thought, obtain information in anyway it thought best.0always giving a fair opportunity to those who were parties in thecontroversy to correct or contradict any relevant statementprejudicial to their view.'"
In Kanda v. Government of Federation of Malaya (4) the failure tosupply the appellant with a copy of the Report of the Board of Inquiry,which contained matter highly prejudicial to him and which had beensent to and read by the adjudicating officer before he sat to inquire intothe charge was held by the Privy Council to have amounted to a failureto afford the appellant "a reasonable opportunity of being heard inanswer to the charge." Delivering the judgment of the JudicialCommittee Lord Denning said:
"If the right to be heard is a real right which is worth anything, itmust carry with it a right in the accused man to know the case whichis made against him. He must know what evidence has been givenand what statements had been made affecting him; and then hemust be given a fair opportunity to correct or contradict them. Thisappears in all the cases from the celebrated judgment of LordLoreburn, L.C., in Board of Education v. Rice, down to the decision“bf their Lordships Board in Ceylon University v. Fernando. It followsof course, that the judge or whoever has to adjudicate must nothear evidence or receive representations from one side behind theback of the other."
The rules of natural justice are a compendious reference to thoserules of procedure which the common law requires persons whoexercise quasi-judicial functions to observe (R v. Deputy IndustrialInjuries Commissioner ex parte Moore) (5). Natural justice requiresthat the procedure before any tribunal which is acting judicially shall befair in all the circumstances and that the tribunal must base its decisionon evidence. But such evidence need not be restricted to that whichwould be admissible in a court of law. Viscount Simon, L.C., in GeneralMedical Council v. Spackman (6) considered that there was no suchrestriction. That was also clearly the view of the Privy Council inUniversity of Ceylon v. Fernando (supra).
The matter was dealt with in more detail by Diplock, L.J.,in R. v.Deputy Industrial Injuries Commissioner ex parte Moore (supra) atpage 84 as follows:
"… those technical rules of evidence, however form no part ofthe rules of natural justice. The requirement that a person exercisingquasi-judicial functions must base his decision on evidence meansno more than that it must be based on material which tends logicallyto show the existence or non-existence of facts relevant to the issueto be determined, or to show the likelihood or unlikelihood of theoccurrence of some future event the occurrence of which would berelevant. It means that he must not spin a coin or consult anastrologer; but he may take into account any material which, as amatter of reason, has some probative value in the sense mentionedabove. If it is capable of having any probative value, the weight to beattached to it is a matter for the person to whom Parliament hasentrusted the responsibility of deciding the issue. The supervisoryjurisdiction of the High Court does not entitle it to usurp thisresponsibility and to substitute its own view for his."
However, this power of the tribunal to admit hearsay evidence issubject to the overriding obligation to provide a fair hearing to theperson whose conduct is in question; depending on the facts of theparticular case and the nature of the hearsay evidence,-the obligafionto give the person charged a fair chance to exculpate himself or fairopportunity to controvert the charge may oblige the tribunal not onlyto inform that person of the hearsay evidence, but also give theaccused a sufficient opportunity to deal with that evidence. In thewords of Geoffrey Lane. L.J.. in R. v. Hull Prison Board of Visitors (7)-
"Depending on the nature of that evidence and the particularcircumstances of the case, a sufficient opportunity to deal with thehearsay evidence may well involve the cross-examination of thewitness whose evidence is initially before the board in the form ofhearsay."
Lane, L.J. further said that:
" Where a prisoner desires to dispute the hearsay evidence and forthis purpose to question the witness, and where it is not possible toarrange for his attendance, the board should refuse to admit thatevidence or if it has already come to their notice, should expresslydismiss 't from their consideration."
In T. A. Miller Ltd. v. Minister of Housing and Local Government (8)the tribunal acted on a letter written by a person who did not attendthe inquiry, the statements in which were relevant and were put to thewitnesses who contradicted them'. The Court of Appeal, saying that itwas not contrary to natural justice to admit it, held that the tribunalwas entitled to rely on the latter if they thought fit. Lord Denning saidat page 634 that –
"Hearsay is clearly admissible before a tribunal. No doubt inadmitting it, the tribunal must observe the rules of natural justice,but this does not mean that it must be tested by cross-examination.
It only means that the tribunal must give the other side a fairopportunity of commenting on it and of contradicting it."
This view of the law was re-affirmed in Kavannah v. Chief Constable ofDevon (9).
In the case of the University of Ceylon v. Fernando (supra) theplaintiffs contention to the effect that he was ndt adequately informedof the case he had to meet and was not given any adequateopportunity of meeting it and that the course taken by theVice-Chancellor or the Commission of Inquiry in these respects failedto satisfy the requirements of natural justice depended almost entirelyon the admitted fact that the witnesses who deposed against him andon whose evidence the Commission acted and based its decision,were not questioned in the presence and hearing of the plaintiff whoconsequently was not able to question them on the statements theymade. Their Lordships held that this did not in itself involve anyviolation of the requirements of natural justice. They observed that it 'was open to the Vice-Chancellor if he thought fit to question witnesseswithout-inviting the plaintiff to be present, but that before he reached
any decision to report the plaintiff, he should have given the plaintiff afair opportunity to correct or contradict any relevant statement to hisprejudice. With respect to the contention of the plaintiff that he wasnot given adequate opportunity of meeting the case against him andthat the requirements of natural justice were not complied with, on the ■ground that he was given no opportunity of questioning Miss B. theone essential witness against the plaintiff, since the proof of thecharge against the plaintiff rested on her word against his, the PrivyCouncil commented-
"In Their Lordships’ view this might have been a more formidableobjection if the plaintiff had asked to be allowed to question Miss Band his request had been refused. But he never made any suchrequest."
In the instant case too. the petitioner did not make any request tocross-examine the examiners who found those loose sheets tied tothe answer script and the other witnesses. The petitioner had noreason to suppose that such a request would not have been granted.
In a similar situation in the University case (supra) the Privy Councilobserved at page 519:
"It therefore appears to Their Lordships that the only complaintwhich could be made against the Commission on this score wasthat they failed to volunteer the suggestion that the plaintiff mightwish to question Miss B or 'to tender her unasked forcross-examination by the plaintiff. Their Lordships cannot regardthis omission or a fortiori the like omission with respect to otherwitnesses, as sufficient to invalidate the proceedings of theCommission as failing to comply with the requirements of naturaljustice in the circumstances of the present case."
A party who does not want to controvert the veracity of theevidence or testimony gathered behind his back cannot expect tosucceed in any subsequent demand that there was no opportunity ofcross-examination specially when it was not asked for. There is norequirement of cross-examination to be fulfilled to justify fairplay inaction, when there was no demand for it. Counsel for petitioner thenstated that she was not told who was the particular examiner whofound those loose sheets of papers tied to her answer script andhence she was not in a position to decide as to who was to be
cro^s-examined. But the fact is she was made aware by Dr. Jayaratneand Dr. (Mrs.) Seneviratne that "the examiners had stated that thesaid three sheets were found tied up with her answer books." Thepetitioner could then have requested that the said examiners be madeavailable for her cross-examination; no valid excuse existed forpetitioner for failing to do so. With respect to the other complaint thatthe petitioner was not told who were the other witnesses who testifiedagainst her, there is no factual basis for it. According to the affidavit ofDr. Jayaratne and Dr. (Mrs) Seneviratne, it would appear that thepetitioner was informed who they were. In my view cross-examinationof those witnesses by the petitioner was designedly refrained from.
The petitioner bewails that she was prejudiced by the fact that shewas not told what was the offence which she had committed. It isunbelievable that the petitioner who is following a Graduates' Coursein the University did not know the nature of the offence that she wassupposed to have committed when she was charged with havingbrought into the Examination Hall unauthorised material. A primaryschool student knows that it is an offence to carry to the ExaminationHall any notes or other unauthorised material. That the petitionercould not spell any examination offence in the allegation made againsther does no credit to her intelligence or to her veracity. There isabsolutely no merit in this contention. The allegation contained all theindicia of an examination offence.
Counsel for the petitioner pressed on us that the petitioner hadasked the sub-committee to be allowed to be represented at theinquiry by another person and that the sub-committee had wrongfullydecided that it was not necessary at that stage for the petitioner to berepresented at the inquiry.
A University student appearing before an Examination Committeeon a charge of having committed an examination offence is notentitled as of right to have legal representation or the assistance of afriend or advisor. But the Committee may, in its discretion, allow thestiident to avail himself of such assistance. I am unable to accept theargument that natural justice demands that in the case of inquiriesconducted by a domestic tribunal like the Examination Committeeagainst an erring student, the student should be allowed to berepresented by any other person. Generally, the issues at such
inquiries are simple and involve straightforward questions of fact andthe student is quite competent to handle them. In Frazer v. Mudge(10) the Court of Appeal in England held that a prisoner is not entitled,as of right, to be legally represented before a Board of Visitors, Roskill,L.J., said in that case at page 80:
"It seems to me that the requirements of natural justice do notmake it necessary that a person against whom disciplinaryproceedings are pending should as of right be entitled to berepresented by solicitors or counsel or both."
In Pett v. Greyhound Racing Association Ltd. (No. 2) {11) Lyell, J.said:
"I find it difficult to say that legal representation before a tribunal isan elementary feature of the fair dispensation of justice."
Lord Denning in Enderby Town Football Club v. Football AssociationLtd. (1 2) said:
"Is a party who is charged before a domestic tribunal entitled as ofright to be legally represented? Much depends on what the rules sayabout it. When the rules say nothing, then the party who has noabsolute right to be legally represented. It is a matter for thedescretion of the tribunal. They are masters of their own procedure;and if they in the proper exercise of their discretion, decline to allowlegal representation, the courts will not interfere."
In R v. Secretary of State (13) which was a case where theapplicants were convicted prisoners who were charged before thePrison Board of Visitors with grave offences against prison discipline,the court re-affirmed that although a prisoner appearing before aboard of visitors in a disciplinary charge was not entitled as of right tohave legal representation or the assistance of a friend or advisor, as amatter of natural justice, a board of visitors had a discretion to allowsuch representation or assistance before it. The court spelt theconsiderations that should be taken into account in exercising fne'discretion.
"When exercising the discretion to allow legal representation orthe assistance of a friend or advisor, a board of visitors should firstbear'in mind the overriding obligation under Rule 49 (2) of the 1964
fries 'to ensure that a°prisoner is given a full opportunity…ofpresenting his…case' and also take into account, inter alia (1) theseriousness of the charge and the potential penalty (2) whether anypoints of law are likely to arise (3) a prisoner's capacity to presenthis own case (4) procedural difficulties arising from the fact that aprisoner awaiting adjudication before a board is normally kept apartfrom other prisoners and may therefore be inhibited in thepreparation of his defence, and the difficulty for some prisoners ofcross-examining witnesses particularly expert witnesses (5) theneed for reasonable speed in making an adjudication, (6) the needfor fairness as between persons or as between prisoners andprison-officers."
The petitioner, in this case did not suffer the grave handicaps ordisadvantages which an illiterate prisoner is under, when charged withgrave offences under the prison rules. Her capacity to present her owncase was not put in issue before the Committee when application wasmade by her that she be allowed representation. In this context, it isrefevant to note that the petitioner never asked for any representationat the first inquiry before Dr. Jayaratne and Dr. (Mrs.) Seneviratne. Inthe circumstances of the case it cannot be said that the 2nd to 6threspondents acted unreasonably in declining in the exercise of theirdiscretion, to accede to the petitioner's request for representation.The petitioner suffered no prejudice by their refusal.
In my view, the respondents have not committed any infringementof the rules of natural justice. The finding against the petitioner wasreached after the petitioner was accorded a fair hearing and after acareful and fair consideration of all the facts' and probabilities of thecase.
The appeal is dismissed with costs.
COLIN-THOME, J. – I agree.AcRJKORALE, J. – I agree.
Appeal dismissed.