BANDARA V. WICKRAMASINGHE

034-SLLR-SLLR-1995-2-BANDARA-V.-WICKRAMASINGHE.pdf


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Bandara v Wickremasinghe
167
BANDARA
V
WICKREMASINGHE
SUPREME COURTG. P. S. DE SILVA, C. J.
KULATUNGA J.
RAMANATHAN, J.
S.C. 190/94
MARCH 19, AND JUNE 05, 1995.
Constitution – Article 11 of the Constitution – Student – Assaulted during schoolhours by school Authorities – Private Act not involving use of the coercive powerof the State – Whether Executive or Administrative action – Acting under colour ofoffice – Disciplinary Action not violative of Fundamental Rights – Excess ofDisciplinary Power- Violation of Rights Article 11.
The petitioner who was a Minor and a student of Sri Subhuthi Vidyalaya allegedthat he was assaulted during school hours by the Principal, Deputy Principal, VicePrincipal and a teacher. It was further alleged that his father had detected somepersons having brought arrack and ganja to the school during a Sports Meet,which had displeased the school Authorities; resulting in the assault on thePetitioner.
The Respondent’s position was that, the Petitioner’s father was displeased as hehad not been given employment as a watcher by the school authorities and thisapplication was at the instigation of the father, out of malice and vengeance. Itwas further alleged that, the Petitioner was sent home for misconduct.
Hejd:
The contention that the alleged assault was purely individual private Acts notinvolving the use of the coercive power of the State and the impugned acts werein no way connected with the performance of official functions and hence theimpugned acts do not constitute Executive or Administrative action cannot beaccepted.
Discipline of students is a matter within the purview of school teachers. Itwould follow that whenever they purport to maintain discipline, they act under thecolour of office. If in doing so they exceed their power they may become liable forinfringement of fundamental rights by Executive or Administrative action.
In view of the seriousness of the derelictions and the issues involved, theclaim of the Respondent that the impugned acts involved disciplinary action notviolative of fundamental rights cannot be accepted.
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Objectively viewed the assault on the petitioner by the respondents was in excessof disciplinary power and violative of rights under Article II.
Per Kulatunga, J.
“ This court must by granting appropriate relief reassure the Petitioner thatthe humiliation inflicted on him has been removed and his dignity isrestored. That would in some way guarantee his future mental health whichis vital to his advancement in life."
Cases referred to:
Theachanamoorthi v. Attorney-General – FRD (1) 129
Velmurugu v. Attorney-General FRD (1) 180
Samanthilaka v. Perera- 1990 1 SLR 318
Vivienne Goonewardena v. Perera FRD (11) 426 at 438.
APPLICATION complaining of infringement of a Fundamental Right.
D. W. Abeykoon with L. L. Wanigasekera for Petitioner.
P. G. Dep, S.S.C., for Attorney-General
R. K. W. Goonesekera with J. C. Weliamuna for 1-3 Respondents
Cur. adv. vult.
July 21,1995.
KULATUNGA, J.
At the time of the incident which gave rise to this application, thePetitioner was 17 years of age. He was a student of Battaramulla SriSubhuthi Madhya Maha Vidyalaya. He complains that on 03.05.94, hewas assaulted during school hours by the 1st, 2nd and 3rdrespondents, who were the Deputy Principal, Vice Principal and ateacher respectively, of that school. On that day, the Principal of theschool was absent. He alleges that by such conduct the respondentshave infringed his rights under Article 11 of the Constitution.
On 28.04.94 the Principal had issued a certificate (P6) in respectof the petitioner, at the request of the petitioner’s father, to enable thepetitioner to be admitted to another school, in view of an impendingchange of residence.
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According to P6, the petitioner had been the President of theSchool Buddhist Society and the Literary Union. He was a SchoolPrefect and a member of the School Debating Team and the Leaderof the Anti Narcotic Campaign. He was also the Secretary of theschool Cricket Association. He was a person of good conduct andcharacter.
The petitioner alleges that in 1993, his father had detected somepersons having brought arrack and ganja to the school during asports meet. This detection displeased the 1st and 3rd respondents.The respondents allege that the petitioner's father was displeasedwith the school staff as he had not been given employment as awatcher and that the petitioner has filed this application on theinstigation of his father, out of malice and vengeance. However, theformer Principal had written to the petitioner’s father on 29.10.93 aletter (P7) addressing him as “Dear Mr. Tilak” and appealing againsthis resignation from posts in the School Development Society. ThePrincipal states therein that the school valued the views of thepetitioner’s father and that his membership of the Society wasindispensable.
According to the complaint made to the police by the petitioner’smother on 04.05.94 and the affidavits of the 1st and 2ndrespondents, the petitioner had been going about the schoolpremises on 03.05.94 saying that he was looking for his classteacher. In his statement to the police which was recorded atMulleriyawa Mental Hospital on 30.05.94 (P5), the petitioner says thatas he was not well on 03.05.95 he wanted to leave the school early,after informing the class teacher. The respondents state thatMrs. Fernando the class teacher had said that the petitioner waslying when he said that he was searching for her; whereupon the 2ndrespondent instructed him to return to his classroom; at that stage thepetitioner did not behave like a student. The 1st respondent says thatthe 2nd respondent reported to him that the petitioner had lied to him,saying that he was searching for Mrs. Fernando; and that when hewas asked to return to the classroom, he did not behave like astudent.
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The petitioner says that the 1st respondent (who was in charge ofthe school in the absence of the Principal) sent for him and when hewent up to the Principal's office, he was assaulted by the 1st, 2ndand 3rd respondents. The 2nd respondent struck him close to his eyewhile the 3rd respondent kicked him. It is common ground that beforethe alleged assault, the 2nd respondent had addressed the petitionerusing the word “Thamuse" (you) to which the petitioner had takenexception. The respondents deny the alleged assault but admit the2nd respondent having slapped the petitioner once. They say that inreturn, the petitioner slapped the 2nd respondent. The 1strespondent merely restrained the petitioner and handed the petitionerover to another teacher. The petitioner was detained until 1.30 p.m.after which he was allowed to leave with instructions to call over atthe school with his parents for an inquiry.
The petitioner's application which is in English and presumablydrawn up by his lawyer does not set out all the details of the incident.But his statement made to the police (in Sinhala) contains the detailsof the incident which are supported by the respondent’s version,except in regard to the alleged assault. His version given to thepolice is also supported in every detail by the statement of his mothermade to the police, subject however, to the weakness that she hasfailed to file a supporting affidavit. However, the fact that she made astatement to the police has not been specially denied.
On 03.05.94 the 1st respondent made a log entry at the school,stating that the petitioner was sent home on account of misconductwith instructions to call over with his parents. On 04.05.94 therespondents caused the Principal to summon the DisciplinaryCommittee of the school which approved the suspension of thepetitioner for the alleged assault by him. The matter was alsoreported to the Deputy Director of Education, Homagama. Thepetitioner's father was requested in writing to attend a disciplinaryinquiry on 09.05.94 against the petitioner on a charge of breach ofdiscipline; but he replied stating that he would not attend the inquiryas he considered the conduct of the authorities to be unsatisfactory.
It is not known as to whether the Education Department took anydecision in the matter. There is also no evidence of action taken by
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the police to institute a prosecution on the complaint of assault on thepetitioner by the respondents. Thus, the task of considering thepetitioner’s grievance has fallen entirely on this Court.
The medical evidence in respect of the petitioner has been ofassistance in the consideration of the petitioner’s complaint. As permedical records, the petitioner had been admitted to MulleriyawaMental Hospital on 04.05.94. The Psychiatric, Dr. D. R. de Silva hasrecorded that it was the petitioner’s first admission to that hospital.The petitioner was thoughtful, refusing meals, and was crying on andoff. He had difficulty in getting into sleep. He refused to go back toschool. He was talking nonsense and was fearful. He was apparentlywell until 03.05.94 when he was assaulted by the “Assistant Principal"and two others, after which he developed the above symptoms. Hehad no previous history of psychiatric illness. The doctor has alsorecorded the fact that the petitioner is the youngest child in his familyand was a school prefect. He was not an alcoholic or a smoker. Afteradmission, the petitioner was first treated with tranquilizers.
The petitioner had contusions and abrasions over the left upperarm and pain and tenderness over the left temporal area and lumberregion.
On 05.05.94 the petitioner vomited once. He still had pain in theleft temporal area. He also had a headache. He suffered from anxietystate. He was given hot water fermentation and treated withparacitimol and tranquilizers. Even on 19.05.94 he had giddiness.After continued treatment, he was discharged on 02.06.94. Thediagnosis was “phobic anxiety”.
Learned counsel for the 1st, 2nd and 3rd respondents submits thatthe alleged assault was a purely individual private act not involvingthe use of the coercive power of the State, that the impugned actswere in no way connected with the performance of official functionsof the respondents; that school teachers are not vested with thecoercive power of the State; and that “they are expressly prohibitedfrom laying a finger on the students;” hence the impugned acts donot constitute executive or administrative action. He submits that theapplication must fail for the lack of this “essential element.” He relies
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on Thadchanamoorthi v. A.G. ("; Velumurugu v. A.G. <z), andSamanthilaka v. Perera(3>.
In the early decisions of this Court the defence was oftenadvanced by the State that the impugned acts of offending officerswere purely private acts for which the State was not liable. The dictarelied upon by Counsel form part of the consideration of that issue.When the Court in some of the cases cited defined “executive oradministrative action” in the sense of acts involving the use of the“coercive power" of the State, the reference there was to acts ofpolice officers in the course of law enforcement.
However, in Vivienne Goonewardene v. Perera(4) Soza J., defined“executive or administrative action” more accurately when he said:
“The State no doubt cannot be made liable for suchinfringements as may be committed in the course of personalpursuits of a public officer or to pay off his personal grudges.But infringements of fundamental rights committed undercolour of office by police officers must result in liability beingcast on the State”.
In the instant case, the facts clearly show that the respondentswere acting under the “colour of office". In fact, the writtensubmissions filed on 08.12.94 on behalf of the respondents stateinter alia, “It is admitted that the Deputy Principal in charge ofdiscipline slapped the petitioner once, on a disciplinary matter”. Iagree that discipline of students is a matter within the purview ofschool teachers. It would follow that whenever they purport tomaintain discipline, they act under the colour of office. If in doing so,they exceed their power, they may become liable for infringement offundamental rights by executive or administrative action.
For the foregoing reasons, I reject the preliminary objection raisedby Counsel for the 1st to 3rd respondents.
The medical evidence supports the petitioner's version. Theinjuries found on him cannot be attributed to a single slap. Thepetitioner who was admittedly a very good student and a school
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prefect suffered by the assault to the extent that he also becamementally ill requiring hospitalization at the mental hospital for a month.He had no history of psychiatric illness. I am satisfied that hiscondition was attributable to the humiliation he suffered by theassault on him, particularly for the reason that up to the date of theincident, he must have enjoyed a high reputation at the school. Theposition he held at the school is established by the certificate P6issued by the Principal of the school.
The petitioner was 17 years of age at the time of the assault. Beinga teenager, he was a person who is likely to suffer humiliation andnervous shock by violence of the kind complained of by him. I am ofthe view that the impugned assault was both cruel and degrading.Thus the allegation by the 2nd respondent that the petitioner waslying when he explained that he was searching for his class teacherdoes not appear to be justified on the facts. As such, the saidallegation was an insult. The petitioner probably resented it. It was inthat context that the petitioner was addressed as “thamuse”. In sucha context that word did not connote respect, as claimed by therespondents, particularly in the light of the fact that the 2ndrespondent slapped the petitioner. According to the respondents, theprovocation for that act was the fact that the petitioner pointed hisfinger and said that he would himself address the 2nd respondent as“thamuse”. It was at that stage that the 2nd respondent slapped thepetitioner which shows that the 2nd respondent lost his temper; and ifas the respondents allege, the petitioner instantly retaliated with aslap that did not justify the uninhibited assault on the petitioner by therespondents. Objectively viewed, such conduct would be in excessof disciplinary power, and violative of rights under Article 11.
I reject the allegation against the petitioner’s father that heinstigated this application out of malice or vengeance, particularlyhaving regard to the former Principal’s letter (P7) addressed to him. Iaccept the petitioner’s version and hold that the 1st, 2nd and 3rdrespondents have infringed the petitioner's rights under Article 11 byassaulting him.
This Court has hitherto been deciding cases of torture by policeofficers. However, the victims of such torture generally belong to a
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different class. Here it is a student with an unblemished record. ThisCourt must by granting appropriate relief reassure the petitioner thatthe humiliation inflicted on him has been removed, and his dignity isrestored. That would in some way guarantee his future mental health,which is vital to his advancement in life.
In view of the seriousness of the dereliction and the issuesinvolved, I am unable to accept the claim of the respondents that theimpugned acts involved disciplinary action not violative offundamental rights. They are personally responsible for the violation.But in granting relief against them, I shall have regard to the fact thatthe assault appears to have occurred on the spur of the moment,which fact cannot be considered to be a complete mitigation, in thecircumstances of this case.
In all the circumstances, I consider it just and equitable to directthat the petitioner be paid compensation in a sum of Rs. 50,000/- bythe State. The 1st respondent is directed to pay Rs. 4000/- and 2ndrespondent is directed to pay Rs. 4000/- and the 3rd respondent isdirected to pay Rs. 2000/-, to the petitioner as costs. In the result thepetitioner will be entitled to a total of Rs. 60,000/- ‘(Rupees SixtyThousand) as compensation and costs.
The Registrar is directed to forward a copy of this judgment to theSecretary, Ministry of Education and Higher Education. The Secretaryis directed to ensure that the compensation and costs ordered hereinare expeditiously paid, to maintain a record of this judgment fordepartmental purposes and to take such other appropriate actionand to report to this Court compliance with this judgment, on orbefore 31.08.1995.
P. S. DE SILVA, CJ. -1 agree.
RAMANATHAN, J. – I agree.
Application allowed.