044-SLLR-SLLR-2003-V-2-JINASENA-v.-UNIVERSITY-OF-COLOMBO-AND-OTHERS.pdf
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JINASENA
V
UNIVERSITY OF COLOMBO AND OTHERS
COURT OF APPEALTILAKAWARDENA, J. (P/CA) ANDWIJAYARATNE, J.
CA 1329/2000JULY 5, ANDAUGUST 26, 2002
Writ of certiorari – Quash interdiction – Who has the power to interdict? – Issueof a charge sheet – Universities Act, No. 16 of 1978, section 34(4), 45(2), XIIand 71(2) – Interpretation Ordinance, section 14 (f) – Industrial Disputes Act,section 31B – Rules of natural justice – Nemo judex in sua causa.
The petitioner was appointed as the Deputy Registrar of the 1st respondentUniversity by the 16th respondent – U.G.C., The petitioner was interdicted bythe Vice Chancellor of the University – the 2nd respondent with the approvalof the University Council. A charge sheet was issued under the hand of the 2ndrespondent and an Inquiry was conducted by the 17th respondent. The 2ndrespondent informed the petitioner that his services were terminated by theUniversity Council, the decision to terminate his services has been ratified bythe 16th respondent U.G.C.,
The Appeal made to the University Appeals Board was refused. The petition-er contended that, the 2nd respondent misrepresented and misinformed thefacts to the Council and that, the Council of the 1st respondent University hadno power to interdict him as no such power has been vested with the Council.
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It was further contended that under the Universities Act no power had beendelegated to the 1 st and 2nd respondents prior to the issuance of the chargesheet, and that the 2nd respondent had failed to obtain approval of suchcharge sheet from the U.G.C. on the recommendation of the Council. The peti-tioner also contended that, some of the witnesses at the Inquiry had partici-pated at the meeting of the Council held to consider the report – resulting in abreach of rules of natural justice.
Held
The Universities Act does not define or refer to the post of DeputyRegistrar – but by necessary implication the post^should be consideredon par and in relation to that of the Registrar.
In terms of section 37(1) the Registrar is appointed by the Council ofthe University.
Accordingly the appointment to the post of Deputy Registrar should fall■ within the power of the U.G.C. as there is no specific provision made
on the appointment of the Deputy Registrar.
In terms of section 45(2) it is the Council of the University, which hasthe power and authority to deal with the Deputy Registrar disciplinarily.
There is no specific provision in the Universities Act or Rules orRegulations in the University Establishment Code, requiring a chargesheet to be approved by the Council of the University. When theCouncil decides, it is the duty and function of the 2nd respondent ViceChancellor to give effect to such a decision. The issuance of the chargesheet is consequence to such decision of the Council.
Alleged breach of Rules of natural justice has no merit, as there were12 others members who were present in such process of decision mak-ing. The interest the 3 witnesses had was only by reason of their offi-cial functions.
APPLICATION for a writ of certiorari.
Chula Bandara with Rashni Mendis for petitioner.
YJ.W.Wijetiiake, Deputy Solicitor-General for respondents.
Cur. adv. vult.
May 13, 2003
WIJAYARATNE, J.
This petitioner seeks to invoke the jurisdiction of this courtagainst the several respondents named in the petition by the grantof mandates in the nature of writs of certiorari to quash his inter-
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diction P8, Charge sheet served on him P9 and the decision to ter-minate his services as Deputy Registrar of the first respondentUniversity P10.
The back drop in which the application is made is as follows.The petitioner was appointed to the post of Deputy Registrar of therespondent university by the 16th respondent University GrantsCommission (UGC) by its letter of appointment marked P1. In theyear 1999 the 2nd respondent issued letter of interdiction P8 to thepetitioner with the approval of the University Council effective from10.8.1999. Subsequently charge sheet P9 dated 24.8.1999 wasissued to the petitioner under the hand of 2nd respondent and aninquiry into such charges was conducted by the 17th respondentwhich commenced on 30.10.1999 and concluded after 31 days ofinquiry. On 19.9.2000 the 2nd respondent Vice Chancellor by lettermarked P10 informed the petitioner that his services as DeputyRegistrar, had been terminated by the University Council withimmediate effect and the decision to terminate his services hasbeen ratified by the UGC the 16th respondent.
The petitioner alleges that the 2nd respondent Vice Chancellormisrepresented and misinformed the facts to the Council of the uni-versity in order to obtain a decision to place him under interdiction.He also states that in terms of section 45(2) (XII) of the UniversitiesAct, No.16 of 1978 read with section 14 (f) of the InterpretationOrdinance, the council of the first respondent university had nopower to interdict him as no such power has been vested with thecouncil. The University council of the first respondent university hasacted without and/ or in excess of their authority to place him underinterdiction and accordingly the said decision has no force of lawand is null and void.
Similarly under section 45(2) (XII) of the Universities Act nopower had been delegated to the first and second respondentsprior to the issuance of the charge sheet (P9) to the petitioner. The2nd respondent failed to obtain approval of such charge sheet fromthe UGC on the recommendation of the council. The charge sheethaving reference to paragraph 4.1.2 of Chapter XXII of UniversitiesEstablishment Code which had no approval from the UGC had noapplicability or legal authority and hence not binding on any uni-versity as the same were not published in terms of section 18 and
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137 of the Universities Act. It is only used as a guide to disciplinaryauthority. The petitioner alleges that the 2nd respondent had -nopower to frame charges against him and to issue charge sheet P9.Accordingly the second respondent had acted without and / or inexcess of her authority as Vice Chancellor. The charge sheet soissued has no force of law and is null and void.
The letter-dated 24.9.2000 issued by the second respondentstated that the petitioner's services had been terminated on a deci-sion taken by the Council of the first respondent University at its 50298th. (special) meeting held on 11.9.2000. The petitioner takes upthe position that 6th and 7th respondents who were witnesses at ..the inquiry into the charges, had participated at such 298th meet-ing of the council held to consider the report of the 17th respondent.
The 11th respondent who too was listed as a witness had takenpart in it. The petitioner states that it resulted in breach of rules ofnatural justice as witnesses who are interested in the outcome ofthe inquiry have joined the process of decision making too. Furtherthe petitioner pleads that the decision of the council to terminate hisservices is not justified as it is against the “rule of proportionality” :ep(not known in administrative law).
The petitioner states that his appeal to the University AppealsBoard had been refused. He made application to the LabourTribunal under and in terms of section 31 B of the IndustrialDisputes Act. The petitioner seeks the intervention of this court toquash his interdiction P8, charge sheet P9 and the decision to ter-minate his services as Deputy Registrar P10 by writ of certiorari.
The respondents were given notice of the application. Some ofthem filed their appearances. The second respondent filed her affi-davit. She admitted some of the averments but denied various alle- 70gations and refuted that she or the council acted without authority.
The contentions raised during the argument were whether the sec-ond respondent acted without proper authority in the issuance ofthe charge sheet P9 and whether the council of the first respondentuniversity could have taken a decision to terminate petitioner's ser-vices with legal authority when the appointing authority of the peti-tioner is the UGC . In terms of section 71 (2) of the Universities Act.
In short vires of the decisions to interdict, charge sheet and termi-nate is being canvassed. In addition breach of rules of natural jus-
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tice on the doctrine of nemo judex in sua causa too is urged by thepetitioner. The respondents contested the right of the petitioner toseek redress by way of writs of certiorari after having invoked thejurisdiction of other forum for alternative remedy.
What comes up for consideration by this court thus are,
was the charge sheet approved by the relevant authority
was there breach of rules of natural justice affecting legalityof the decision to terminate petitioner's services.
The consequential issue then be is whether the interdiction,charge sheet and the decision to terminate petitioner's services areamenable to writ of certiorari to quash the same. The next questionwould be whether the petitioner who already had had recourse toalternative remedy, has the right to obtain redress by way of writ ofcertiorari, a discretionary remedy granted by this court.
It is pertinent in the present context to determine whom thedisciplinary authority of the petitioner in his substantive post ofDeputy Registrar of the first respondent university. The post ofDeputy Registrar is not a statutory post in terms of the UniversitiesAct, No. 16 of 1978. However his letter of appointment P1 statesthat the appointment is made “in pursuance of the powers vestedin the UGC in terms of section 71 (2) of the Universities Act.” Thereis no dispute that the post of Deputy Registrar is in the category ofsenior administrative officer. The Universities Act does not define orrefer to the post of Deputy Registrar, but by necessary implicationthe post should be considered on par and in relation to that of theRegistrar of the university.
In terms of section 37(1) of the Universities Act, ‘the Registrarof the University’ shall be appointed by the council of the universi-ty. Section 71 (2) of the act provide;
The commission shall in accordance with the scheme of recruit-ment and the procedures for the appointment prescribe byOrdinance, make the following appointments to the staff of aHigher Educational institution –
(1) appointment to a post of officer, except where other provisionhas been specifically made under this act in respect of that post.
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Accordingly the appointment to the post of Deputy Registrarshould fall within the powers of the UGC as there is no specific pro-visions made on the appointment of the Deputy Registrar.
However the provisions of section 45(2) (xii) dealing with thepowers, functions and duties of the council need examination
Section 45(2) reads;120
“Without prejudice to the generality of powers conferred uponit by sub section (1) the council shall exercise, perform ad dis-charge the following powers, duties and functions:-
(xii) to appoint persons to, and to suspend, dismiss or other-wise punish persons in the employment of the University.
Provided that, except in the case of officers and teachersthese powers may be delegated to the Vice Chancellor.
In terms of the above provisions it is the council of the univer-sity, which has the power and authority to deal with the DeputyRegistrar disciplinary. Accordingly the interdiction, charge sheet- 130ing, and termination of the services of the petitioner as the DeputyRegistrar is within lawful authority of the council of the University.
With regard to the charge sheet being issued by the secondrespondent there is no specific provisions of the Universities Act orrules and regulations in the University Establishment Code requir-ing a charge sheet to be approved by the council of the University.
The learned counsel for the petitioner does not cite such provisionseither.
On the contrary section 34(4) of the Universities Act state:
Subject to the provisions of this act, it shall be the duty of uothe Vice-Chancellor to give effect, or to ensure that effect isgiven to the decisions of the council and of the senate.
When the council has decided to, in terms of P8 to “deal withthe petitioner by way of disciplinary action”, it is the duty, and func-tion of the Vice-Chancellor to give effect to such decision. Theissuance of the charge sheet is consequent to such decision of thecouncil of the University Only.
Rule 8.2 of the University Establishment Code, which the peti-
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tioner concede is meant to provide guidance to the authorities,reads:150
If the preliminary investigations discloses a prima faciecase against the suspect person, the Chairman of theCommission or the principal Executive Officer of the HigherEducational Institution/lnstitute as the case may be will furnishhim with a statement of charges against him and call upon himto show cause why he should not be punished.”
In terms of section 34 sub section (6)
“The Vice Chancellor shall be responsible for the maintenanceof discipline within a university.
Consequent to the decision of the council of the first respon- 160dent University to take disciplinary action against the petitioner, interms of the above provisions, the second respondent ViceChancellor is required as the principal Executive-officer responsiblefor the maintenance of discipline within the University to issue a.statement of charges. There is no requirement of such a chargesheet to be approved by the council. Accordingly the issuance ofthe charge sheet P9 by the second respondent is within lawfulauthority, powers and functions of the second respondent holdingthe office of the Vice Chancellor. In the light of the above provi-sions, I hold that P8, P9 and P10 are valid in law and cannot be the msubject of writ of certiorari on grounds of lack of lawful authority.
The alleged breach of rules of natural justice, when the 6th,
7th and 11th respondents who are witnesses at the inquiry partici-pating at the 298th council meeting in the process of making thedecision to terminate the services of the petitioner, in my view hasno merit. The proceedings disclose that there were 12 other mem-bers who were present in such process of decision making and thedecision to terminate the petitioner’s services was unanimous.Whatever the interests the 6th, 7th and 11th the defendants mayhave as witnesses was only by reason of their office and functions isothereof. It is this very office that placed them in the seats of thecouncil. Their decision as such is not taken in their personal inter-ests. However, there is nothing to suggest that the three respon-dents have in any manner influenced the decision of the rest of themembers-of the council. The number of other members who were
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unanimous in their decision is sufficient to take the decision theytook even with the presence of the 6th, 7th and 11th respondents.
I am unable to accept the suggestion that the three respondentscould have swayed the decision of the twelve others in a way dis-advantageous to the petitioner or but for their presence the deci- 190sion of the council would have been otherwise. It is apparent thatthe gravity of charges and the standing of the petitioner as DeputyRegistrar in the administrative set up compelled the council to takethe decision with serious consequences to the petitioner. The mem-bers of the council were unanimous that the petitioner should notcontinue in the office of the Deputy Registrar and they have takensuch decision in the interest of the University as an institution. Inthe result I hold that there is no breach of rules of natural justice.
The impugned decision to interdict, the charge sheet and thedecision to terminate the services of the petitioner are not liable to 200be quashed on grounds of lack of authority or breach of rules ofnatural justice. In such event there is no question of the petitionerbeing entitled to the mandates of writ of certiorari as claimed in hisapplication. When the petitioner is not entitled to such remedies, hisinvocation of the jurisdiction of other forum or having recourse toother alternative remedies need not be considered as affecting hisright to invoke the jurisdiction of this court.
In the result the application of the petitioner is dismissed withcosts fixed at Rs. 3000/-.
TILAKAWARDENA, J. (P/CA) – I agree.
Application dismissed