019-SLLR-SLLR-2006-V-1-.CHANDRASIRI-vs.-UNIVERSITY-OF-RUHUNA-AND-OTHERS.pdf
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CHANDRASIRIV.UNIVERSITY OF RUHUNA AND OTHERSSUPREME COURTBANDARANAYAKE, J.
WEERASURIYA J, ANDJAYASINGHE, J.
SC (FR) APPLICATION NO 326/200323RD NOVEMBER 2004 AND 10TH JANUARYAND 18TH MARCH, 2005
Fundamental Rights – “Warning" issued against the petitioner without proper
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Chandrasiri v.
University of Ruhuna and Others (Bandaranayake, J.)
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inquiry and arbitrarily – Arbitrary exercise of discretion by the University contraryto natural justice-invalidity of warning – Article 12(1) of the Constitution.
The petitioner was a Senior Professor of Forensic Medicine of the Faculty ofMedicine, University of Ruhuna. He was a PGIM Board certified JMO and a“Government Medical Officer" within the meaning of section 2 of the Code ofCriminal Procedure Act, No. 15 of 1979 competent to hold post mortemexaminations, examine persons in police investigation and act as an inquirerInto Sudden Deaths within specified Districts or other parts of the country asdirected by Magistrates except the Western Province.
The petitioner and Dr. Ruwanpura who was also a Consultant JudicialOfficer noted that paediatricians who were not attached to the Department ofHealth but attached to the Faculties of Universities were discharging the functionof Judicial Medical Officers in child abuse cases. Hence the petitioner andDr. Ruwanpura informed the Deputy Inspector General, Southern Range thatPediatricians who are not “Government Medical Officers” competent to undertakesuch work under the Code of Criminal Procedure Act were doing suchunauthorized work. That letter was copied to the Attorney – General, Magistratesand the Chairman of the National Child Protection Authority (P4) dated14.02.2002.
The University of Ruhunu at a Faculty Board meeting referred the said letterP4 to the Sri Lanka Medical Council for action. The council decided that theallegations made against the petitioner for sending that letter did not constituteprofessional misconduct.
Thereafter, on a decision of the University Council, a Committee wasappointed to consider whether disciplinary action may be taken against thepetitioner for writing the letter P4. It is to be noted that a preliminary inquiryshould be held for that purpose. The Committee held that there was nonecessity to hold a disciplinary inquiry against the petitioner but to avoid pain ofmind to other members of the Board the petitioner should be warned.
Accordingly by letter dated 21,05.2002(P5) the second respondent (ViceChancellor) warned the petitioner. The petitioner complained, inter alia, ofviolation of Article 12(1) of the Constitution.
HELD:
According to the University Establishments Code warning is not apunishment, but used only after an inquiry upon a charge sheet againstthe repitition of an act or omission. A copy of the warning letter has to befiled in the personal file of the person concerned.
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In the circumstances, issue of a warning without a charge sheet and apreliminary inquiry was arbitrary.
Even if the Vice chancellor was authorized to issue a warning, the issueof the warning without a charge sheet and a preliminary inquiry was anarbitrary exercise of discretion in violation of Article 12(1) of theConstitution.
Discretion of a statutory body is never unfettered. It should be exercisedaccording to law. Here the warning was issued contrary to the principlesof natural justice.
The Committee could not have recommended the issue of a warningbefore holding an inquiry as directed by the Vice-Chancellor. TheCommittee exceeded its powers by recommending the warning andexceeded its jurisdiction.
The act of the Committee without jurisdiction and the warning by theVice Chanceller were void in law, and had no legal effect.
For the above reasons, the petitioner’s fundamental rights under Article12(1) were infringed.
Cases referred to:Ram Krishna Dalmia v. S. R. Tendolkar (1958) Air SC 538
Saman Gupta vs. Jammu and Kashmir (1983) Air SC 1235
Padfield vs. Minister of Agriculture (1968) A. C. 997
Breen v. Amalgamated Engineering Union (1971)1 All. E. R. 1148
APPLICATION for relief for infringement of fundamental rightsJ. C. Weliamuna with Govinda Jayasinghe for petitioner.
Wijayadasa Rajapakse, P. C. with Kapila Liyanagamage for respondents.
Cur. adv. vult.
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Chandrasiri v.
University of Ruhuna and Others (Bandaranayake, J.)
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06th June 2005
SHIRANI BANDARANAYAKE, J.
The petitioner in this application is a Senior Professor of ForensicMedicine attached to the Faculty of Medicine, University of Ruhuna.According to the petitioner, he is the senior most Professor of ForensicMedicine in service and the senior most PGIM Board Certified (Board ofManagement of the Post Graduate Institute of Medicine) Consultant inForensic Medicine in Sri Lanka. The petitioner has obtained severalqualifications, has carried out extensive research where he has producedover 45 articles, and has served in several other countries in addition tobeing a Registered Medical Practitioner in the Sri Lanka Medical Council(p1,p1A-p1Handp2)
The petitioner had commenced his academic career in the University ofPeradeniya as a Lecturer in Forensic Medicine in 1971. He had joined theUniversity of Ruhuna on 20.04.1981 as a Professor of Forensic Medicinein the said University (P3).
The petitioner submitted that since 1981, as a Professor of ForensicMedicine of the University of Ruhuna, and a PGIM Board Certified ConsultantJMO, he has performed Judicial Medical Services, such as examination ofpersons produced by the police and the Courts. He had also conductedforensic autopsies on orders of the Inquirors into sudden deaths andMagistrates in relation to sudden deaths within the Police divisions ofGalle, Akmeemana, Poddala, Rathgama, Habaraduwa and Hikkaduwa.The petitioner had also conducted several Post Mortem Examinationsfrom other places in the country, except Western Province, where so orderedby the Magistrates.
The petitioner complained that, by letter dated 21.05.2003 (P5), the2nd respondent had informed him that, on the recommendations of theCommittee appointed by the Council of the University, that the petitionerhas been warned. Accordingly, he alleged that the decision contained inthe document marked P5 has the effect of curtailing the petitioner’s rightto hold a lawful opinion and/or to express his views on a matter of publicimportance and therefore the said decision of the Council is violative ofArticles 10 and/or 14(1 )(a) of the Constitution. He further alleged that theconduct of the members of the Council of the University of Ruhuna and thedecision that was contained in P5, is unfair, unreasonable, unlawful andtherefore is in violation of the petitioner’s fundamental rights guaranteed tohim in terms of Article 12(1) of the Constitution.
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This Court granted leave to proceed for the alleged infringement of Articles12(1) and 14(1) (g) of the Constitution.
The petitioner’s complaint, is as follows:
At the time where the infringement the petitioner is now complainingtook place, he was serving as the Senior Professor of Forensic Medicineat the Faculty of Medicine, University of Ruhuna. According to thepetitioner, as a Professor of Forensic Medicine, he was required, interalia, to discharge statutory duties, in addition to his teaching functions.The petitioner submitted that in terms of the provisions of section 122(1)of the Code of Criminal Procedure Act, No. 15 of 1979, where anyofficer in charge of a Police Station considered that the examination ofany person by a medical practitioner is necessary for the conduct of aninvestigation, he may, with the consent of such person, cause suchperson to be examined by a Government Medical Officer. Section 2 ofthe said Code of Criminal Procedure Act defines the term “GovernmentMedical Officers” to include any officer of the Department of ForensicMedicine of any Faculty of Medicine of any University of Sri Lanka.
The petitioner submitted that he and one Dr. P. R. Ruwanpura, who isalso a Consultant Judicial Medical Officer, had noted that Paediatricians,who were not attached to the department of Health, but attached to theFaculties of the Universities, were discharging the functions of JudicialMedical Officers in child abuse cases. According to the petitioner, thesaid Dr. Ruwanpura and he were of the opinion that the peadiatricianswho are not attached to the Department of Health do not fall within thedefinition of “Government Medical Officer” in terms of the provisions in theCode of Criminal Procedure Act, and therefore they are not entitled toexamine children for medico-legal purposes and also to submit reports tothe Police or to the Department of Probation and Childcare.
The Petitioner and the said Dr. Ruwanpura, by their letter dated
drew the attention of the Deputy Inspector General of Police,Southern Range, to the said tendency on the part of the Paediatricianswho are not attached to the Department of Health. The Petitioner submittedthat the said letter was also copied to the officers who are responsible forthe administration of criminal justice which included the Hon. the AttorneyGeneral, State Counsel who are appearing in the Magistrate’s Courts andthe Chairman of the National Child Protection Authority of Sri Lanka (P4).
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University of Ruhuna and Others (Bandaranayake, J.)
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Thereafter, one Dr.T. S. D. Amarasena, a Senior Lecture in Paediatricsat the Faculty of Medicine of the University of Ruhuna ,at a Faculty Boardmeeting held on 03.10.2002, where the petitioner was also present, informedthe members that he has made a complaint to the Sri Lanka MedicalCouncil against the petitioner for professional misconduct by sending thesaid letter marked as P4. The petitioner submitted that the said complaintmade by Dr. Amerasena was considered by the Sri Lanka Medical Councilalong with the explanation given by the petitioner and it was decided bythe Sri Lanka Medical Council that the allegations made against thepetitioner do not amount to professional misconduct (P4A'and P4B).
On 30.05.2003, to his surprise, the petitioner has received a letter dated
signed by the 2nd respondent, which stated that, the petitionerhas been warned on the recommendations of the Committee appointedby the Council (P5).
The petitioner sepcifically stated that as it transpires from P5, the Councilof the University had appointed a sub-Committee to look into the purportedallegations made against the petitioner. The petitioner submitted that noexplanation whatsoever was sought from the petitioner either by the Councilor by the said sub-Committee.
The petitioner’s complaint is based on the decision of the Council of the1st respondent University contained in the letter marked. P5 to warn thepetitioner. His contention is that, the said decision was taken contrary tothe principles of natural justice and contrary to the disciplinary procedurelaid down in the Establishments Code of the University Grants Commissionand the Higher Educational Institutions (P8) (hereinafter referred to as theEstablishments Code.).
The contention of the respondents is that in terms of paragraph 4:4 ofChapter XXII of the Establishments Code, a ‘Warning’ is not a punishment,but administered to caution the person concerned against the repetition ofan act or an omission, which may lead to disciplinary action. Therefore,the submission of the learned President's Counsel for the respondents isthat, in warning a person, the disciplinary authority need not follow theprocedure and there is no need to hold a preliminary investigation and/or aformal disciplinary inquiry laid down in the Establishment Code.Notwithstanding the above, learned President's Counsel for the respondents
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stated that, the Council of the1 st respondent University at its 206th meetingheld on 16th December 2002 had decided to appoint a sub-committeecomprising the 4th, 13th and 15th respondents to held a preliminaryinvestigation on the conduct of the petitioner in writing the letter P4 andsending such letter to several persons including the DIG, SouthernProvince. The sub-committee had come to the conclusion that in view ofthe circumstances relating to the writing of P4, there is no requirement tohold a disciplinary inquiry against the petitioner, but to avoid any pain ofmind being caused to the other members of the Faculty by such actionsin future, that the petitioner should be warned. Such recommendation ofthe said Committee was considered and approved by the Council at its208th Meeting held on 24.02.2003 (1R4).
Learned President’s Counsel for the respondents, further submittedthat in terms of paragraph 8:1:1 of Chapter XXII of the ExtablishmentsCode, a preliminary investigation is purely a fact finding exercise andtherefore there is no requirement to seek for explanation from the petitioner.The contention of the respondents is that, even without a preliminaryinvestigation by a sub-Committee, the petitioner could have been warnedby the Council as the Council of the 1st respondent University isempowered to warn an acadamic without holding a preliminaryinvestigation.
Further, learned President’s Counsel for the repondents submittedthat the petitioner had levelled serious allegations against 5 Senior Lecturersin Paediatrics by P4 and the petitioner had failed to substantiate the saidallegations when requested to do so by the Dean and/or Faculty Board ofthe Faculty of Medicine.
Learned President’s Counsel for the respondents therefore contendedthat, by warning the petitioner for the aforementioned incident which broughtdisrepute to the 1 st respondent University, the respondents have actedfairly, reasonably and according to law.
The question in issue, arose due to a letter written by the petitioner andone Dr. Ruwanpura dated 14.02.2002, to the Deputy Inspector General ofPolice of Southern Range expressing the view they held that thePaediatricians who are not attached to the Department of Health are notentitled to examine children for medico-legal purposes and to submit reportsto the police or to the Department of Probation and Childcare (P4).
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Chandrasiri v.
University of Ftuhuna and Others (Bandaranayake, J.)
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On the basis of the aforementioned letter, the Faculty Board of theFaculty of Medicine of the University of Ruhuna made a request to theCouncil of the University to take disciplinary action against the petitionerfor writing the letter dated 14.02.2002 (P4). In fact the 8th repondent, theDean of the Faculty of Medicine has written to the 2nd respondent on
in the following terms:
“I request you to take urgent steps to institute a formal inquiryagainst Prof. N. Chandrasiri as recommended by the FacultyBoard at its meeting held on 08.08.2002.”
When this matter was placed before the Council of the University ofRuhuna at its 206*' meeting held on 16.02.2002 (IR2), it was decided toappoint a Committe to consider whether there is sufficient material to holda disciplinary inquiry against the petitioner. The said decision was in thefollowing terms:
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The petitioner was warned by the 1 st respondent University based onthe aforementioned circumstances and now I would turn to examine whetherthere was any infringement of the petitioner’s fundamental rights, on theaforementioned position taken by the 1 st respondent University.
Learned President’s Counsel for the respondents drew our attention toparagraph 8:1:1 of Chapter XXII of the University Establishments Code inthis respect. Chapter XXII deals with the Disciplinary Procedure of theUniversities. Paragraph 8:1:1 of the said Chapter deals with the procedureof a preliminary investigation and states that such an investigation is purelya fact finding process. In terms of the provisions of the said paragraphthere is no doubt that the preliminary investigation is meant to be a searchfor material which may disclose an employee’s guilt or provide evidencefor any charges that may be framed against the person suspected of theoffence.
Thereafter on 24.02.2003, at its 208th meeting, the Council had decidedto warn the petitioner. This decision was based on the recommendation ofthe Committee appointed by the Council on 16.12.2002 . The relevantminute reads as follows:
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University of Ruhuna and Others (Bandaranayake, J.)
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Be that as it may, it is to be noted that, based on the results of thepreliminary investigation a decision would have to be taken as to theprocedure thereafter, in relation to the allegation against a person.According to paragraph 8.2, if the preliminary investigation discloses aprima facie case against the person who is suspected for an offence, acharge sheet will have to be issued calling upon him to show cause as towhy he should not be punished.
The Establishment Code however is silent regarding asituation whereat the preliminary investigation it is found that there is no prima facie caseagainst the suspected person. In that event, I shall now turn to examinethe position, when there is no provision to take action against a personwhere no prima facie case is disclosed.
It is common ground that the Council of the 1 st respondent University,at its 206th meeting held on 08.08.2000, decided to appoint a Committeeto ascertain whether there is a prima facie case to hold a disciplinaryinquiry against the petitioner (1R2). Paragraph 8:1 of the ExtablishmentCode deals with appointments of such Committees, and clearly describesunder what circumstances that such a Committee could be appointed.The said paragraph is in the following terms:
“8.1 When disciplinary action is contemplated against anemployee in connection with any offence warranting one ofthe major punishments listed in sub-para 4.1.2, or for a minoroffence in respect of which summary procedure under para 7is not applicable to the person concerned, the Chairman ofthe Commission or the Principal Executive Officer of the HigherEducational Institution/lnstitute will cause to be made suchpreliminary investigations as are necessary.”
Paragraph 8:1:1 describes the procedure of a preliminary investigationand reads thus:
“A prliminary investigation is purely a fact finding process. It ismeant to be search for material that may disclose anemployee’s guilt or provide evidence for any charges that maybe framed against the person suspected of the offience…”
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Paragraph 8, which deals with a formal disciplinary inquiry in subparagraph 8:2 refers to the specific steps that have to be taken where aprima facie case is disclosed. This would include furnishing a chargesheet and calling upon the person in question to show cause as to why heshould not be punished. However, it is pertinent to note that, there is nosuch provision to indicate that, if a prima facie case against the suspectedperson is not disclosed at the preliminary investigation, the PrincipalExecutive Officer of the Higher Educational Institution/lnstitute has theauthority to warn the suepected person.
Warning is referred to in paragraph 4:4 of the Establishments Code andit is to be borne in mind that paragraph 4 of the said Establishments Codedeals with punishments. It is to be noted that the Establishements Codestates that warning is not a punishment. Paragraph 4:4, therefore readsas follows:
“A warning” is not a punishment, but is administered to cautionthe person concerned aginst the repetition of an act or anomission which may lead to disciplinary action. A warningshould be administered by the Disciplinary Authority, and acopy of the letter conveying the warning should be filed ofrecord in the personal file of the person concerned.”
The question which arises at this point is whether it is possible to warnan academic without holding any kind of an investigation. The respondentscontended that even without the preliminary investigation conducted bythe Sub-Committee the petitioner could have been warned by the Council.In terms of the Establishments Code, the Vice Chancellor is the DisciplinaryAuthority regarding disciplinary matters connected with the Academic Staff.Therefore in terms of paragraph 4:4, it appears that the Vice Chancellor ofa University has the discretion to issue a letter of warning.
Article 12(1) of the Constitution states that “all persons are equal beforethe law and are entitled to the equal protection of the law,” and therebyensures equality and protection for persons who are similarly placed againstdiscriminatory treatment. When the Vice Chanceller is empowered with awide discretion regarding a warning to be given to a person against whomallegations are being made, it is necessary that there should be certainsafeguards in the exercise of such discretion. It is apparent that paragraph4:4 of the Establishment Code does not give any guidelines as to the
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exercise of the power given to the disciplinary authority. In suchcircumstances, it is clear that the power given to the disciplinary authorityis not only arbitary, but also carries uncontrolled discretion. In Ram KrishnaDalmia vS. R. Tendolkar(') it was clearly stated that the vesting of discretionwith officials in the exercise of power under a statute alone will notcontravene the equal protection clause. What is objectionable is theconferment of arbitrary and uncontrolled discretion without any guidelinesfor the exercise of that discretion. By allowing an official to exercise hisauthority, without adhering to any guidelines, norms or principles, andonly according to his wishes , a situation is created for. decision to betaken arbitrarily. Absolute or uncontrolled discretion given to an authoritywould nagate equal protection, as such authority could be exercisedarbitrarily infringing the equal rights guaranteed in terms of Article 12(1) ofthe Constitution. Considering this kind of a situation, in Saman Gupta vJammu and Kashmirs the Court was of the view that,
“The exercise of all administrative power vested in publicauthority must be structured within a system of controls,informed by both relevance and reason- relevance in relationto the object which it seeks to serve, and reason in regard tothe manner in which it attempts to do so. Wherever the exerciseof such power affects individual rights, there can be no greaterassurance protecting its valid exercise than its governance bythese twin tests.”
The rejection of the concept of unfettered discretion was vividly describedwith reference to the landmark decision in Padfieldv Minister of Agriculture<3) by Lord Denning, in Breen v Amalgamated Engineering Union(4) in thefollowing terms:
“The discretion of a statutory body is never unfettered. It is adiscretion which is to be exercised according to law. Thatmeans at least this : the statutory body must be guided byrelevant considerations and not by irrelevant. If its decision isinfluenced by extraneous considerations which it ought notto have taken into account, then the decision cannot stand.No matter that the statutory body may have acted in goodfaith; nevertheless the decision will be set aside. That isestablished by Padfieldv Minister of Agriculture, Fisheries andfood, which is a landmark in modern administrative law.”
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Having said that the said Committee had proceeded to recommendthat the petitioner should be served with a letter of warning. The questionwhich arises at this juncture is whether the said Committee had the man-date to make such recommendation.
It is quite clear that the mandate given to the said Committee by theCouncil of the 1 st respondent University was“ to ascertain whether thereis material to hold a preliminary investigation against the petitioner'’ (1R3).Accordingly, in terms of the mandate given to the Committee, they onlyhad to inform the Council of the 1 st respondent University the outcome ofthe inquiry. This would have included an answer in the affirmative or in thenagative to the questing directed at them.
Thus when the Committee recommended that the petitioner be warned,it had, in my view, acted without any authority or jurisdiction. It is trite lawthat when a Committee acts beyond the mandate/terms of reference onwhich it was appointed, it clearly lacks jurisdiction and such decisionshave no legal validity or effect as the Committee has acted outside itsgiven power. Referring to acts which have been carried out with excess ofpower, Wade (Administrative Law, 9th Edition, pp. 36-37) states that,
“Any administrative act or order which is ultra vires or outsidejurisdiction is void in law, /. e. deprived of legal effect.
Considering the several steps that were taken by the 1st respondentauthority, regarding the complaint made against the petitioner, it is clearthat the Council had decided to appoint a Committee to ascertain whetherthere is material to hold a preliminary investigation against the petitioner.The minutes of the 206th meeting of the University Council of 16.12.2004is quite clear that the mandate given to the Committee was to ascertainwhether there is material to hold a preliminary investigation against thepetitioner (1R2). The Committee had after several discussions and onperusal of all the available material had come to the conclusion that thereis no material to hold a disciplinary inquiry against the petitioner. Paragraph7 of the letter dated 10.02.2003 (1R3) thus stated that,
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If it is not within the powers given by the Act, it has no leg tostand on. The situation is then as if nothing had happened, andthe unlawful act or decision may be replaced by a lawful one.”
Therefore, the decision of the Committee to warn the petitioner is not alawful one which has any validity and the action taken by the Council onthe basis of the said decision and/or recommendation of the Committee iswithout any legal effect. The said Committee therefore had clearly actedoutside their terms of reference and thereby their actions become arbi-trary as well as discriminatory and is violative of the provisions of Article12(1) of the Constitution.
It is also to be borne in mind that petitioner was never heard by theCommittee or by the Council in respect of the allegations made againsthim. Although the respondents claim that an explanation was called fromthe petitioner, it is to be noted that such direction came from the facultyBoard of the Faculty of Medicine and the Dean of the Faculty of Medicineof the 1 st respondent University and not from the disciplinary authority orfrom the Committee which was appointed to look into the allegations againstthe petitioner. Also, it is important to take into account that at no stage acharge sheet was issued against the petitioner.
Since that landmark decision in Ridge vBaldwin (5) (1964) A. C. (40) itis now a well accepted concept that rules of natural justice and fairness inprocedures should be applicable to administrative actions. There are nouniversally accepted principles or norms as to the type of procedure thatwould be followed in different kinds of inquires. However, what is neces-sary is that the inquiry should be carried out according to the basic normsof the rules of natural justice and fairness in procedure. Referring to thisquestion, Tucker L. J. in Russell v Duke of Norfolk (6)( 1949) 1 All E. R.109) stated that.
‘There areno words which are of universal applicationto every kind of inquiry and every kind of domestic tribunal.The requirements of natural justice must depend on thecircumstances of the case, the nature of the inquiry, the rulesunder which the tribunal is acting, the subject- matter that isbeing dealt with, and so forth.”
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The 1st respondent University, bearing in mind the concepts of goodadministration and governance, should have acted fairly towards the peti-tioner, who was one of its Senior Professors. Even if there was no require-ment to conduct an adversarial hearing before reaching a decision, therules of natural justice required the University to act fairly towards thepetitioner.
In view of the aforementioned finding it would not be necessary to con-sider the infringement in terms of Article 14(1 )(g) of the Constitution.
On a consideration of the totality of the circumstances in this applica-tion and for the aforementioned reasons, I declare that the 1 st respondentUniversity had acted arbitrarily and unreasonably and thereby had violatedthe petitioner’s fundamental rights guaranteed in terms of Article 12(1) ofthe Constitution. The decision of the 1 st respondent University containedin the document dated 21.05.2003 (P5) is therefore declared as null andvoid. I make order that the 1st respondent University shall pay the peti-tioner a sum of Rs.25,000 as compensation and costs. This amount to bepaid within 3 months from today.
T.B. WEERASURIYA, J. — I agree.
NIHAL JAYASINGHE, J. — I agree.
Relief granted.