-CULASUBADHRA v. THE UNIVERSITY OF COLOMBO AND OTHERS

027-SLLR-SLLR-1985-V1-CULASUBADHRA-v.-THE-UNIVERSITY-OF-COLOMBO-AND-OTHERS.pdf


CULASUBADHRA
v.
THE UNIVERSITY OF COLOMBO AND OTHERS
COURT OF APPEAL.
SENEVIRATNE, J. (PRESIDENT, COURT OF APPEAL) AND B. E. DE SILVA, J.
C. A. 851/83.
OCTOBER 30; 31. 1984 AND NOVEMBER 1,26, 27 AND 28. 1984.
Writs of certiorari and mandamus – Examination Rules – Examination offence – Cancandidate at examination be said to be found in possession of loose written sheets laterfound attached to answer scripts ?- Review of rinding of fact by Tribunal at disciplinaryinquiry – Right to be informed of the charge and evidence – Natural justice – Fairhearing -Right of representation at inquiry before a domestic tribunal – Can groundsnot set out in the petition be raised at the hearing ?
The petitioner, a final year student of. the University of Colombo sat the FinalExamination conducted by the University in 1982. On 21.04 1982 she answered thepaper in Organic Chemistry C 203 but to her answer script the correcting Examinersfound attached three loose sheets on which there were notes on Chemistry. On beingrequested to do so by the Assistant Registrar/Examinations the petitioner appearedbefore an Examinations Committee on 21.07.1982 whereat she was informed of thediscovery of the three loose sheets tied up with her answer book and shown them. Onthe loose sheets there was the date stamp 19.08.1981 on which date she had sat foranother Course Unit Examination at the University. The three sheets were Universitystationery. The petitioner denied that she attached the loose sheets to her answer bookand also asserted the notes written on them were not in her handwriting. Subsequentlythe petitioner was served with a lener dated 17.08.1982 (Pi > by the AssistantRegistrar/Examinations informing her of the decision of the Eaminations committee thatshe had been found guilty of an examination offence and that her candidature at theApril 1982 Unit Examination was cancelled and she was debarred from sitting any UnitExamination for a period of three years. The petitioner appealed to the Vice-Chancelloragainst the decision of the Examinations Committee. The Vice-Chancellor referred thisto a Sub-Committee which considered the appeal after hearing thie petitioner andaffirmed the decision of the Examinations Committee. This fact was conveyed by theVice-ChaceDor's letter dated 18.04.1983 (P7) to the petitioner who then filed thepresent application to have the decision conveyed by P7 quashed, and her resultsreleased on the following grounds :
The principles of natural justice were not observed and no fair hearing was heldbecause:
No notice of the inquiry and no notice of the charge were given to the petitionerby the Examinations Committee.
The evidence was not led in her presence nor was she given a copy of theevidence and she had no opportunity to meet such evidence or present her casebefore the Examinations Committee.
No representation was permitted by the Sub-Committee though this was appliedfor.
No report from the Examiner of Questioned Documents was'obtained althoughthe Examinations Committee had said such a report would be obtained. *
The petitioner was not found in possession of the unauthorised material.
(3| The Vice-Chancellor had no power to delegate his powers to a Sub-Committee andthe full Sub-Committee did not sit to hear the appeal.
Held –
(1 > There was no contravention of the principles of natural justice or the requirement ofa fair hearing :
(a) The petitioner had been informed of the charge and the evidence against her bythe Examinations Committee and given an opportunity to meet the charge butshe had no explanation to offer beyond deniahand disowning the handwriting onthe loose sheets.
(0) In the absence of rules a domestic tribunal has the discretion to allow or refuserepresentation. Such discretion however must be properly exercised. Theaccused person has no right to representation unless the rules grant it.
(c) Where there are no rules governing domestic disciplinary inquiries the inquiringTribunal must adopt such procedure as would ensure a fair hearing. Unduly strictstandards should not be applied where it is an academic authority that has heldthe domestic disciplinary inquiry. It is sufficient if the proceedings have beensubstantially fair.
{c( For the proof of the offence in this case it was not necessary that the notesshould have been in the handwriting of the petitioner. Further a conclusive reportcould not be obtained from the Examiner of Questioned Documents because thecomparison material supplied by the petitioner was not adequate.
The words 'found in possession’ in relation to the possession of unauthorisedmaterial in Rule 2(i), (ii) and (iii) of the Rules for Examination Offences must be given anextended meaning. It is not necessary that the candidate should be detected in physicalpossession of the unauthorised material at the examination. Evidence supporting areasonable conclusion or inference of possession of unauthorised matenal at theexamination is sufficient.
A finding of fact by a Tribunal can be set aside by way of a writ only if it is found thatthere was no evidence at all to base such a finding or if the Tribunal has not propertydirected itself in evaluating the evidence and drawing necessary inferences and couldnot have come to that conclusion if it properly directed itself.
The objections that the Vice-Chancellor has no power to delegate, his disciplinarypowers and that the full Sub-Committee appointed to hear the appeal did not hear itwere not pleaded and cannot be raised at the hearing. Further the second objectionwas factually not correct.
Cases referred to:
{1) University of Ceylon v. Fernando (Privy Council) (1960} 61 NLR 60S.
Dorothy de Silva v. City Vice Squad (1977) 78 NLR 553.
Karamjit Kaur v. Punjab University 57 AIR 1964 Punjab 327.
Russell v. Duke of Norfolk [1949] 1A HER 109. 118.
General Medical Council v. Spademan [1943] AC 627. 638.
Boardof Education v. Rice [1911} AC 179, 182.
De Vertewil v. Knaggs[19l8]AC 557, 560.
Sarath Nanayakkara v. University of Peradeniya and Others C. A. Application No.987/83 – C.A. Minutes of02.04.1985.
Pettv. Greyhound Racing Association Ltd. [1969] 2 Ail ER 221.
Enderby Town Football Club Ltd. v. The Foodball Association Ltd. and Another[1971] 1ABER215;[1971]Ch. 591.
R V. Secretary of Stye for the Home Department and others ex parte Tarrant andAnother; R. K. Wormwood Scrubs Prison Board of Visitors, ax parte Andersonend Others. [1984] 1 All ER 799.
f. Jayalingam v. University of Ceylon – C.A. 415/81 C.A. Minutes of14.08.1981.
Carron v. Land Reform Commission C.A. 744/81 – C.A. Minutes of 16.08.84.
Paul v.Wjerama (1972) 75 NLR 361.
Wyeramav. Pad(1973) 76NLR241.
APPLICATION for Writs of Certiorari and Mandamus.
H. W. Jayewardene. Q. C. with L. C. Seneviratne, P. C.. Lakshman Perera, and MissT. Keenavinna for petitioner
K.N. Choksy, P.C. with I. S. de Silva, Miss I. R. Rajepakse. and Miss H. Wimaiadasa for1st to 6th respondents.
Cur. adv. vult.
May 10. 1985.
SENEVIRATNE, J. (President)
The petitioner was at the times relevant to the subject matter of thisapplication a student of the University of Colombo following a Science(Honours) Degree Course, for a degree in Zoology (Special) inParasitology. The petitioner sat for the Final Examination in 1982 andin'fact sat for the Part I and Part II papers in Parasitology of the FinalExamination on the 18th and 21st June, 1982. Prior to that on21.4.82 the petitioner sat for the Organic Chemistry C. 203 paper.This was a second year examination paper which the petitioner hadfailed in 1980. The results of this paper were given out on 7. 6.1982,and the petitioner was unsuccessful in this examination.
The 1st respondent University of Colombo is a body corporateestablished under the provisions of sections 21 and 28 of theUniversities Act No. 16 of 1978. 2nd to 5th respondents weremembers of a Sub-Committee appointed by the Vice-Chancellor tohear an appeal made by this petitioner to the Vice-Chancellor, inrespect of punishment imposed on her by the ExaminationsCommittee for an examination offence, alleged to have beencommitted by her in respect of the Chemistry C. 203 paper for whichshe sat on 21.4.1982. The 2nd respondent did not participate in thehearing of this appeal. The 6th respondent is the Senior AssistantRegistrar, Examinations of the University of Colombo.., This is anapplication to quash by way of a Writ of Certiorari the imposition of apunishment on the petitioner by the Examinations Committeecontained in letter dated 18.4.83 (P 7) having rejected her appeal andfor a consequential order of Mandamus.
«
The petitioner has stated that on 17.7.1982, she received a letterdated 16.7.1982 from the Senior Assistant Registrar/Examinationsrequesting her to meet Dr. C. Jayaratne. Senior Lecturer in Physics onthe 21st July 1982. (It has later transpired that on 21.7.82 Dr.Jayaratne took back the letter dated 16.7.1982 from the petitioner.Neither party has revealed the contents of this letter dated
and also the 1st respondent has not at least revealedwhy this letter was taken back from the petitioner). The petitioner hadas requested met Dr. Jayaratne on 21.7.1982, and there was alongwith him Dr. (Mrs.) Seneviratne, the Head of the Department ofBotany. The petitioner has affirmed that when she met both of themon this day. Dr. (Mrs.) Seneviratne informed the petitioner that somepapers had been found attached to her answer script of the OrganicChemistry C. 203 examination for which the petitionr had sat on
The petitioner was shown the three loose sheets of papercontaining notes on Chemistry which were alleged to have beenattached to the petitioner's answer script. The petitioner denied thatshe attached these loose papers to the answer script, and also deniedthat these loose sheets of paper were in her handwriting, Thepetitioner was not shown the answer script in question. The petitioner
* then made a written statement denying that the petitioner attachedthe said three sheets of paper and further denied that these paperswere in the handwriting of the petitioner. Subsequently the petitionerreceived a letter dated 17.8.1982 (P1) from the Senior AssistantRegistrar/ Examinations informing her that she had been found guiltyof an examination offence by the Examinations Committee, and thatthe Committee had decided that her candidature at the April 1982Unit Examination be cancelled and to debar her from sitting for any"Unit Examination for a period of three years, (i.e. she could sit-for theUnit Examinations only in 1986).
On receipt of this letter of 17.8.1982 (P 1), the petitioner appealedto the Vice-Chancellor against the decision of the ExaminationsCommittee by letter dated 23.8.1982 (P 2). In this appeal of
(P 2) the petitioner admits in paragraph 07 that when shemet Dr. Jayaratne and Dr. (Mrs.) Seneviratne on 21.7.1982, Dr.(Mrs.) Seneviratne told her that some papers had been found attachedto her answer script of the C. 203 Organic Chemistry paper, and thatDr. (Mrs.) Seneviratne showed her the three sheets. She also statesthat the three sheets were at that time not attached to her answerscript, and the answer scripts were not shown to her. In this appeal(P 2) she had set out mainly four grounds of appeal to wit
That she was not given notice of any inquiry that was going tobe held against her nor any notice of the charge alleged againsther regarding an examination offence. <•
She was not given adequate opportunity of being heard orproperly presenting her case against any charge.
The decision of the Examinations Committee was contrary tofact and law. arbitrary and unilateral and contrary to allprinciples of fairness.
She appealed that the decision of the Examinations Committeecontained in the letter of 17.8.1982 (P 1) be quashed
The present application before this Court is for an Order in thenature of a Writ of Certiorari to quash the decision of the ExaminationsCommittee contained in the Vice-Chancellor's letter dated 18.4.1983(P 7), which conveyed the order made by the said Committee, afterthe receipt of the report from the Sub-Committee which heard theappeal. Letter (P 7) stated that the Examinations Committeerecommended that the punishment informed by letter of 17.8.1982(P 1) should stand. The earlier letter of punishment issued on thepetitioner.by the Examinations Committee dated 17.8.1982 (P 1)informed the petitioner that the Committee decided :t-
That her candidature at the April 1982 Unit Examination becancelled.
r, (2) To debar the petitioner from sitting for any examination for aperiod of three years..
The petitioner in this application has also applied for the grant andissue of an order in the nature of a Writ of Mandamus directing therespondents to release the results of the petitioner in respect of theFinal Examination in Parasitology 1982.•
The grounds urged in this application for the grant of Writs are asfollows
The petitioner was not served with any charge sheet relating tothe particular offence which the petitioner was accused ofcommitting.
The evidence at the said inquiry against the petitioner was notled in the presence of the petitioner, npr was the petitionerprovided with the copies of the proceedings before the saidCommittee conducting the inquiry.
The petitioner was not made aware of the evidence against thepetitioner though the petitioner requested to be informed ofsuch evidence.
That at the first inquiry Dr. (Mrs.) Seneviratne said that theanswer script and annexed papers were sent to thehandwriting expert, but the petitioner is unaware of the reportmade by the handwriting expert.
In regard to this ground (d), both Dr. Jayaratne and Dr. (Mrs.)Seneviratne in their affidavit have denied that they informed thepetitioner that her answer scripts and annexed papers were sent tothe handwriting expert. The above affirmation by Dr. Jayaratne andDr. (Mrs.) Seneviratne is proved intrinsically by the report of thatCommittee dated 28.7.82 (R 1), which report only recommends tothe Examinations Committee that the answer script and the loosesheets of paper be referred to a handwriting expert for his opinion,whereas the petitioner appeared for the inquiry before this Committeeprior to this report, that is on 21.7.82. Thus, this affirmation inparagraph 18 (d) of the petitioner's affidavit is at the least a grosserror.
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.
The petitioner is unaware of the evidence upon which thepetitioner has been found guilty of the examination offence.
Ig) The petitioner had no opportunity of meeting the evidenceagainst the petitioner.
(h) The petitioner was not given a proper or adequate opportunity• of presenting the petitioner's case before either theExaminations Committee or the Sub-Committee which heardthe petitioner's appeal.
(/) The inquiries were not conducted fairly and were contrary to theprinciples of natural justice.
The grounds set out above {a), {b), (c), {/), (g). (b) and (/) are in linewith the grounds urged by the student Fernando against whom therewas a charge of an examination offence in the leading case ofUniversity of Ceylon v, Fernando, (Privy Council) (1) in which case likegrounds were considered and ruled upon by Their Lordships of thePrivy Council as set out in the Judgment of Lord Jenkins.
In the course of the submissions learned Queen's Counsel for thepetitioner set out two additional grounds
(j) That there has been a delegation of power by the Vice-Chancellor, which is invalid.
k) That the entire Board of Appeal appointed by the Vice-Chancellor did not sit to hear the appeal.
Learned President's Counsel for the respondents objected to thesetwo grounds being raised stating that these two grounds have notbeen pleaded. I shall deal with this later.
The 1st. 2nd and 6th respondents filed objections. Theseobjections have been supported with the affidavits of –
Professor Stanley Wijesundera. Vice-Chancellor.
Dr. 0. W. Jayaratne and Dr. (Mrs.) Seneviratne.
Professor M. L. T. Kannangara, and
Mrs. P. Gnanaindram, Assistant Registrar.
and documents (R 1) to (R 8). The objections filed and the affidavitsall denied generally that the inquiry into this examination offence wasnot held in a fair manner and that it was held in a manner contrary tothe principles of natural justice. In the objections, paragraphs (5) and(10) – specifically 5 (b) to (i) and 10 (ii) set out the fair manner inwhich the first inquiry was held, according to the principles of naturaljustice, and in their affidavits Dr. Jayaratne and Dr. (Mrs.) Seneviratneaffirm to these facts.
The first ground urged by the petitioner in her appeal' to theVice-Chancellor was that she was not given any notice of any inquirythat was going to be held against her nor any notice of the chargealleged against her regarding an examination offence. The first groundurged in the present application is also that she was not served withany charge sheet. This complaint is correct only in so far as it is seenthat the letter summoning her to appear before.- Dr. Jayaratne on21.7 1982 does not appear to have contained any charge orallegation. But the petitioner herself has affirmed in her affidavit thatwhen she met Dr. Jayaratne and Dr. (Mrs.) Seneviratne on
.she was informed that some papers had been foundattached to her answer script in the Organic Chemistry C. 203examination for which she sat on 21.4.1982. Dr. Jayaratne andDr. (Mrs.) Seneviratne have also affirmed to the fact that the petitionerwas informed of the charge when she appeared before them. 5
In Fernando's case referred to above. Fernando was informed of thecharge in two ways
The letter dated 16.5.1952 sent to him to appear before theinquiry, informed Fernando of the allegations against him.
When Fernando appeared before the Committee, he wasinformed of the allegation Miss. Balasingham had made againsthim, relating to the part of the Physics paper in the GermanLanguage.
The case shows that still Fernando quibbled that he was not informedof the subject matter of the inquiry, the charges, merely because thesaid letter referred to one or more papers in the plural and not to thespecific charge in respect of the allegation made byMiss. Balasingham.
In this matter before Court, this Court can act on the premises asaccepted by both parties that on 21.7.1982 when the petitionerappeared before the Committee, she was informed of the examinationoffence alleged against her which amounted to an allegation that on
she was found in possession of three loose sheets ofpaper containing notes of Chemistry, which were found tied up to heranswer scripts. Regarding her other ground it is admitted that theevidence of the other witnesses who were questioned by thisCommittee was not taken in her presence. But the 1st, 2nd. and 6threspondents in their objections (which have been affirmed to byDr. (Mrs.) Seneviratne and Dr. Jayaratne) have stated that the
petitioner was informed by the Committee of inquiry that they hadquestioned the examiners who stated that the said three sheets werefound tied up with her answer book. The petitioner was informed thatthe Supervisor, Professor M. L. T. Kannangara and the Invigilators Dr.S. Hettiarachchi, Dr. A. N. Abeywickrerpa and Dr. R. Abeysunderahave been interviewed and have stated that no loose sheets wereissued to the candidates, and only complete books of 8 pages initialledby the supervisor and containing the date stamp had been issued tothe candidates.
These respondents have averred (and the Committee ot inquiryDr. (Mrs.) Seneviratnp and Dr. Jayaratne have affirmed to this) that itwas pointed out to the petitioner that the said three sheets were notpart of a complete book, but were loose sheets and were Universitystationery, that it was pointed out to her that the date stamp on thesaid three sheets bore the date 19.8.1981, on which date she hadsat for another Course Unit Examination Z. 305 at the University, thatthe Sub-Committee questioned the petitioner 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 book in view of theprocedure followed, both during and after the examination to ensurethat answer books would not get into unauthorised hands, and thatunauthorised persons do not have access to the same, but she wasunable to offer any explanation. Professer M. L. T. Kannangara hasaffirmed to the fact that candidates were only issued complete booksof 8 pages bearing the date stamp 21.4.82 and initialled by him, andthat Professor Kannangara stated these facts to Dr. Jayaratne- andDr. (Mrs.) Seneviratne in the course of the inquiry. The 6th respondentMrs. Gnanaindram has affirmed to the fact that the petitioner sat forthe Organic Chemistry paper at the Course Unit Examination Z. 305held on 19.8.81, at which examination candidates were issued withloose sheets of paper which bore the University date stamp19.8.1981. Dr. Jayaratne and Dr. (Mrs.) Seneviratne have affirmed tothe fact that the petitioner was informed of the charge and theevidence against her and given every opportunity of meeting the sameand presenting her position, and to the fact that the inquiry wasconducted in the manner set out in paragraph 5 (b} to (i) and 10 (i)and (ii), as stated in the statement of objections of the 1st, 2nd and6 th respondents.
Along with the objections set out above is filed a very vital documentwhich can throw light on the question as to whether a fair inquiry washeld and principles of natural justice observed. That is the report of theCommittee of Inquiry consisting of Dr. Jayaratne and Dr. (Mrs.)Seneviratne to the Vice-Chancellor dated 28.7.1982 (R 1). Thisreport (R 1) states that the inquiry in respect of the examinationoffence concerning the petitioner was the result of a letter addressedto the Head of the Department of Chemistry by four examiners whoset and marked the paper C. 203 Organic Chemistry. The names ofthe examiners are given. The,Report (R 1) states that the scripts of thepetitioner were obtained and the four examiners among whom wasthe examiner. Professor M. Mahendran were interviewed by theCommittee. Then the Committee had interviewed ProfessorKannangara, the Supervisor at that examination and the invigilatorswho were mentioned above. After interviewing these officers of theUniversity, this Committee had interviewed the two candidates againstwhom allegation of an examination offence was made : Candidate No.S. 256 M. A. S. de Upali and candidate No. NS 1811 Chulasubadhrade Silva, this petitioner. The report states that Upali on beingquestioned admitted that he brought loose sheets of paper into theexamination hall and tied them with the main script. The report (R 1)states that the present petitioner was confronted with the aboveevidence obtained at the interviews and her answer was —
That the handwriting on the last three loose sheets was nothers, and
That she had not attached the said papers to her answer script.
(R 1) also shows that the Cocnmittee considered the possibility as to,by whom these three sheets of paper could have been introduced intothe answer script of the petitioner and pointed out to her that thatcould have been done only by –
Herself,
An Invigilator,
The Supervisor, or
The Examiners.
No one else could have had access to the papers since they werepacketed and sealed under the watchful eye of the supervisor and theseals were intact when the examiners took charge of the packet. The
Report (R 1) states that however she insisted on her denials, andaccordingly, she was asked to give a written statement, whichstatement is attached to the Report annexed "E". This document 'E' isnot a part of the brief before this Court This Committee has not cometo any finding as to whether the petitioner had committed anyexamination offence but reported the facts to the ExaminationsCommittee. This Committee had at its meeting held on 2.8.1982 heldthat the petitioner has committed an examination offence and■ imposed punishment (R 4 of 2.8.1982).
I have set out the evidence against the- petitioner in detail. Theaffidavits of the respondents and the supporting affidavits anddocuments clearly show that the petitioner was informed of the natureof the offence and the evidence against her. This has to be accepted.The petitioner's complaint that no evidence was led in her presence isfactually correct. The affidavits of the respondents and the supportingevidence show that at the inquiry held on 21.7.1982. the petitionerwas given proper and adequate opportunity of presenting her case.
The petitioner has also complained that the Board of Appeal whichheard her appeal on 25.11.1982 did not hear any evidence in herpresence, did not give her an opportunity of presenting her case andalso did not accede to her request to be represented by anotherperson at the inquiry. These are the main allegations made in respectof the appeal heard by the Sub-Committee. The 3rd, 4th and 5threspondents who in fact heard the appeal have filed objections and ontheir behalf Dr. G. C. N. Jayasuriya the 5th respondent, who was theChairman of this Sub-Committee has filed an affidavit stating that thepetitioner was given every opportunity of presenting her appeal andexplaining her position and matters against her. Since she hascomplained to the Vice-Chancellor that she was not shown her answerbooks at the original inquiry, the Board of Appeal departed from thenormal university practice and showed her the answer scripts whichconsisted of three books Index No. NS. 1811.
The most vital piece of evidence against the petitioner had been thefact that the three loose sheets of paper were university stationery andhad the university date stamp 19.8.1981 on which day she had satfor a paper in the Course University Examination Z. 305. from which ithas been inferred that she had the opportunity of removing the loosesheets with the date stamp 19.8.1981. In the examination rulesmarked (R 2),
Rule 4 states as follows :
'the Books, noteswhich a candidate has
brought with him should be kept at a place indicated by theSupervisor/lnvigilator".
Rule 10 is as follows :
“all material supplied, whether used or unused, shall
be left behind on the desk and not removed from the examinationhair.
The Committee that inquired into the examination offence hasconsidered whether a Supervisor/lnvigilator could have introducedthese loose into the script obviously due to Rule’26 in (R 2) –
"Every candidate shall hand over the answer script personally tothe Supervisor/lnvigilator or remain in his seat until it is collected. Onno account shall a candidate hand over his answer script to theattendant, a minor employee or another candidate".
A point has been made by the petitioner that the opinion of thehandwriting expert was not obtained though the Committee of Inquiryso recommended. The document filed (R 7) shows that theGovernment Examiner of Questioned Documents wanted materialwritten by the petitioner in the normal course of work, lecture notes,tutorials in the same subject Organic Chemistry. The report (R 8) of
of the Government Examiner of Questioned Documentsshows that the petitioner has not furnished the specimen handwritingas required by the Examiner of Questioned Documents, and as suchhe has been unable to make a comparison of the petitioner'shandwriting with that of the handwriting in the three loose sheets ofpaper which had been marked “X”, *Y" and “Z". There is material toshow that the petitioner has not fully co-operated with the Universityauthorities to furnish the kind of handwriting that was required. Aglaring example of this non-co-operation is the E.Q.D's statement in(R 8} as follows :
"1 % pages of casually written writings which have been struck offwith ji ball point pen. However, these writings are of a differentsubjefct matter".
Further, the respondents have quite correctly stated that the casealleged against the petitioner was the introduction of extraneouspapers (notes) into the examination-hall and found tied to her answerscript, that the proof of this examination offence does not require thatsuch notes should be in the handwriting of the candidate himself. Thisis a veqy acceptable statement made by the respondents.
Learned Queen's Counsel for the petitioner submitted that it wasnot clear what was the offence alleged against the petitioner in relationto Rules for Examination Offences approved by the Senate on31.7.1980 (R 3). The respondents appeared to state that theexamination offence alleged against the petitioner was contained inRule 2 –
'Possession of unauthorised material'.
Rule 2 (i) – states as follows –
‘Any candidate found in possession of University examinationstationery not made available to the candidate for the paper inquestion
Rules 2 (ii) and (iii) –
"Any candidate found in possession of other unauthorisedmaterial”.
It was submitted that there was no evidence that the petitioner was'found in possession' of any unauthorised material-. Thus, accordingto this submission the scope of this Rule 2 is that a candidate must befound, physically in possession of unauthorised material. LearnedPresident's Counsel for the respondents in reply submitted that thewords 'found in possession’ must be construed to mean that thatthere was evidence to form a reasonable conclusion or inference thata candidate and in this instance the petitioner, was found inpossession of unauthorised material in the examination hall. Pound inpossession does not mean that the candidate must be caughtphysically in possession of the unauthorised material. The term 'foundin possession' must be given an extended meaning as the term'Brothel' was given in the case of Dorothy de Silva v. City Vice Squad. (2) in order to 'suppress the mischief and advance the remedy'. In thecase of Karamjit Kaur v. Punjab University (3) the Court held that incase of a disciplinary inquiry into an examination offence probabilitiesand circumstantial evidence can be taken into consideration for theproof of it. Thus it is quite clear that in the instance of this petitioner,the Examinations Committee has based its conclusion on inferencesdrawn from probabilities and circumstantial evidence and has in noway misdirected itself on either facts or law.
I have set out above the material on which the petitioner has beenfound by the Examinations Committee to have committed anexamination offence and imposed the said punishment on her. ft is notthe function of this Court to determine whether the finding is justifiedor not. A finding of fact by a Tribunal such as this can be set aside byway of a writ only if it is found that there was no evidence at all to basesuch a finding, or if the Tribunal has not properly directed itself inevaluating the evidence and drawing necessary inferences and couldnot have come to that conclusion if it properly directed itself.
A disciplinary inquiry of this nature held by a University is aquasi-judicial inquiry. The duty cast on this Court in this WritApplication is to consider whether the petitioner has had a fair hearing,that is whether the rules of natural justice have been observed. Ishould add whether such rules have been observed at least insubstance, In the field of administrative law a distinction has beendrawn as to what is a fair inquiry or trial in adjudicatory proceedingsand a disciplinary inquiry of this nature. If there are no rules framedgoverning a disciplinary inquiry of this nature, it is the duty of theUniversity to observe such rules of inquiry and procedure which wouldensure to the student a fair hearing. In the Privy Council caseUniversity of Ceylon v. Fernando (supra) Lord Jenkins delivered thejudgment, having considered several leading English cases, in which .the principles of natural justice that should be observed by aquasi-judicial tribunal have been expounded, to wit – Russell v. Dukeof Norfolk (4) General Medical Council v. Spackman (5) per Lord Atkinat page 638, In the Board of Education v. Rice (6) Lord Loreburn, L.C.in his famous dictum laid down that a tribunal was under duty to 'act ingood faith, and fairly listen to both sides for that is a duty lying uponevery one who decides anything." In De Verteuil v. Knaggs (7) it waslaid down as follows : – "In general, the requirements of natural justiceare first, that the person .accused should know the nature of theaccusation made ; secondly, that he should be given an opportunity tostate his case ; and thirdly, that the tribunal should act in good faith”. 1must state that the petitioner had made no allegation of bad faith;prejudice or bias against any party respondent. In fact the Board ofExaminers who reported to the Head of the Department that loosesheets of paper were found tied to the answer scripts of the petitionerwas a multi-racial board of examiners.
The case of Karamjit Kaur v. Punjab University (supra) was a likeinstance in which a female candidate Karamjit Kaur had been dealtwith by the Punjab University in respect of an examination offence.Kbanna, J. who (among the cases referred to, also considered thelocal case of Fernando – Privy Council) set down the principles ofnatural justice that should be observed in respect of a candidatecharged for having used unfair’means at an examination
The educational authority has to follow such procedure, whiledetermining the correctness of those allegations, as isprescribed by the regulations or by-laws.
In case the.regulations'or by-laws prescribed no procedure, itwould be for the authority to devise the procedure as itconsiders necessary, to satisfy itself with regard to thecorrectness of the charge.
The procedure so adopted should be fair and not violative of theprinciples of natural justice. It need not however, be the sameas govern trials in ordinary courts of law.
■ (4) The candidate concerned must be informed of the charge andan adequate opportunity should be given to defend himself.
In case such an opportunity has been given to the candidate,and there is some materia! before the prescribed authorityabout the use of unfair means, and the prescribed authorityaccepts that material and is not actuated by any hostile animus,the Court would not interfere with the decision of the aforesaidauthority even if the Court disagrees with the conclusion of theauthority.
This Court has to test whether the petitioner has received a fair inquiryon the touchstone of the principles set out in Fernando's Case, in thatof Karamjit Kaur and such other like cases. There is no commonyardstick to measure whether principles of natural justice have beenobserved. In respect of each case ; whether such principles have beenobserved has to be decided in relation to the facts and circumstances
A
of that particular instance. The principles laid down in the Privy Councilcase – University of Ceylon v. Fernando (supra) were considered andapplied in a different context by this Court in the case of SarathNanayakkara v. University of Peradentya and Others (8) perSeneviratne, J. with B. E. de Silva, J. concurring.
The first complaint made by the petitioner is that she was not servedwith any charge sheet. I have set out the above facts pertaining to theinforming of the charge, and also drawn a distinction between thisinstance and Fernando's Case. The petitioner in this case had to face astraightforward allegation that unauthorised loose sheets were tied toher answer script. When confronted with the allegation and theevidence against her, she set out the two possible defences which inher view she could have taken –
(1} She denied the allegation.
(2) She stated that the loose sheets did not contain herhandwriting.
I have dealt with the position regarding whether the 1 st respondentshould prove that the loose sheets were in her handwriting. Even atthe hearing of the appeal the petitioner had not spelled out any otherdefences or made an application to lead any evidence on her behalfdocumentary or oral. These circumstances show that though she hadto meet the charge at the first time she appeared before theCommittee on 21.7.1982, she has been adequately informed of thecharge against her. I hold that the petitioner was adequately informedof the charge, that she had fully appreciated the charge against her,and no prejudice has been caused to the petitioner on this ground.
A set of other grounds urged are that evidence was not led in thepresence of the petitioner; the petitioner was not provided withcopies of the proceedings ; the petitioner was unaware of theevidence against her, and had no opportunity of meeting the evidenceagainst her. These are the like submissions as mentioned by meabove, which had been made in Fernando's case. In that case thePrivy Council held that principles of natural justice had not beenviolated by the fact that the evidence was not led in the presence ofFernando, and that Fernando had no opportunity to question thewitnesses. There are no grounds for this Court to come to a differentview in this instance. There is no evidence that the petitioner made anapplication for the copies of the proceedings before the Committee ofInquiry. I accept the affirmations of Dr. Jayaratne, Dr. (Mrs.)Seneviratne and that of Dr. Jayasuriya, the Chairman Sub-Committeeof Appeal that she was adequately informed of the allegation againsther, of the evidence against her, and given every opportunity to defendherself. As such I dismiss these grounds. The petitoner's real groundseems to depend on the fact that the report of the handwriting expertwas not obtained. This submission has been dealt with earlier.
At the hearing of this application a ground that was urged with muchforce was that the petitioner made an application before theSub-Committee which heard her appeal, to be represented by anotherperson, and that the Committee held that it was not necessary at thatstage for the petitioner to be represented at the inquiry. This raises animportant issue as to whether it is a requirement of natural justice thata party to an inquiry before a quasi-judicial tribunal had a right to berepresented by a lawyer or a friend. The relevant principle is verysuccinctly set out in Halsbury : Laws of England. 4th Ed. Para. 76(Page 94) – 'Prima facie, one who is entitledo appear in person isentitled to be legally represented ; but it appears that in informalproceedings before a domestic tribunal natural justice does not usuallyimply the right to be thus represented". The cases I will now considerelucidate the principle that a person has no right of representationbefore a domestic tribunal, but it is left to the discretion of such atribunal whether to allow such a person to be legally represented ornot.
In the case of Pett v. Greyhound Racing Association Ltd. (9) theNational Greyhound Racing Club proposed to hold an inquiry against atrainer of dogs as to whether drugs had been administered to thedogs. The trainer sought to be represented by Counsel at the inquiry.The local stewards after consideration decided not to allow the trainerto be represented by a lawyer. This refusal by the stewards waschallenged in Court. Lyell, J. held that the trainer did not have a right to' be legally represented, in the absence of such requirements in theinstrument conferring the powers on the domestic tribunal. Thetribunal was required to comply with elementary and essentialprinciples of fairness. In this case Lyell, J. followed the principles setout in the case of University of Ceylon v. Fernando (supra) andultimately held as follows "I find it difficult to say that legalrepresentation before a tribunal is an elementary feature of the fairdispensation of justice". As will be shown later Courts have disagreedwith the application of this principle in the strict form in which it hasbeen laid down in Pett's case.
In the case of Enderby Town Football Club Ltd. v. The FootballAssociation Ltd. and Another (10) a Football Club which appealedagainst the decision of the County Football Association on certainpoints of law requested permission from the Football Association to berepresented by counsel and solicitor at the hearing of the appeal. The ‘Football Association refused to allow the club to be legally represented
on the appeal. The club moved for an injunction to restrain the hearingof the appeal unless the club was permitted to-be legally represented.
It was held that as the rules of the Football Association excluded legalrepresentation, the club was not entitled to have legal representationat the hearing of the appeal. Nevertheless, the Court went on todiscuss whether the rules of natural justice required that legalrepresentation should be permitted before a domestic tribunal. LordDenning, M.R.. who delivered the judgment ruled as follows (Page218) – (B), (C) and (0)
"The case thus raises this important point : Is-a- party who ischarged before a domestic tribunal entitled as of,right to be legallyrepresented ? Much depends on what the rules say about it. Whenthe rules say nothing, then the party has no absolute right to belegally represented. It is a matter for the discretion of the tribunal.They are masters of their own procedure ; and, if they, in the properexercise of their discretion, decline to allow legal representation, the
Courts will not interfere . I think that the same should
apply to domestic tribunals, and for this reason : In many cases itmay be a good thing for the proceedings of a domestic tribunal to beconducted informally without legal representation. Justice can oftenbe done in them better by a good layman than by a bad
lawyerBut I would emphasize that the discretion must be
properly exercised. The tribunal must not fetter its discretion by rigidbonds. A domestic tribunal is not at liberty to lay down an absoluterule : 'We will never allow anyone to have a Lawyer to appear forhim'. The tribunal must be ready in a proper case, to allow it. Thatapplies to anyone in authority who is entrusted with a discretion. Hemust not fetter his discretion by making an absolute rule from whichhe will never depart".
Denning, J. considered the principle laid down in the case of Pett. v.Greyhound Racing Association (Supra) and indicated that in hisLordship's view the broad principles set out by Lyell, J. were an errorin law. In this instance Lord Denning did not rule whether legal,representation should have been allowed as he held that the properremedy of the Football Club was an action in Court for a declaration, inwhich case there would undoubtedly be legal representation for theclub.
Learned Queen's Counsel for the petitioner relied strongly on thedecision in the case of ft. v. Secretary of State for the HomeDepartment and Others, ex Parte Tarrant and Another, ft. K.Wormwood Scrubs Prison Board of Visitors, Ex Parte Anderson andOthers (11). The applicants who were convicted prisoners werecharged with grave offences against prison discipline. Inquiries wereheld by Prison Board of Visitors into the charges against theapplicants. Some of the applicants requested legal representationwhile some requested assistance of a friend at the hearing. The Boardof Visitors refused the requests in each case. The applicants applied toCourt by way of writ of certiorari on the grounds :
(a) That a prisonerwas entitled as of right to legal representation orassistance of a friend or advisor.
(£>} Alternatively the Boards had a discretion in the matter and.ought to have exercised the discretion by allowing legalrepresentation.
The Court held that although a prisoner appearing before the Board ofVisitors on a disciplinary charge was not entitled as of right to havelegal representation or the assistance of a friend or advisor, as amatter of natural justice a Board of Visitors had a discretion to allow •such representation. The. Court held that it was wrong for such Boardto take the firm view that the applicant had no right to legalrepresentation or assistance and that it had no power to grant it.Webster. J. who delivered the main judgment set out the' 'considerations which every Board should take into account whenexercising its discretion whether to allow legal representation or to. allow the assistance of a friend or adviser. (This list is not of course,intended to’ be comprehensive ; particular cases may throw up otherparticular matters)'. The considerations set out by Webster, J. are :
The seriousness of ,the charge and the potential penalty.
Whether any points of law are likely to arise.
The capacity of a particular prisoner to present his own case.
In amplification of this point (3) the following passage from a HomeOffice of' Research Unit Paper has been quoted -'some of theprisoners were poorly educated and not very intelligent. Furthermore afew spoke poor English and a few appear to have psychiatricproblems. Unless they are given considerable assistance, it is
unrealistic to expect such men to prepare an adequate writtenstatement or to present their case effectively'. The ratio decidenda ofthe case is that the Boards were in error when they held as a rule thatprisoners were not entitled to representation and there was a failure toconsider the exercise of the discretion to allow legal representation ina fit case.
In the instance before me the Sub-Committee to hear the appealappointed by the Vice-Chancellor has used its discretion and decidedthat representation was not necessary on behalf of this petitioner atthat stage. The Sub-Committee to hear the appeal has not as in thecase of the Boards of Prison Visitors decided that the petitioner wasnot entitled to representation. The question arises whether the use ofthis discretion by this Sub- Committee was a proper exercise of it. Inthe light of the principles set out as guidelines for the exercise ofdiscretion by Webster, J. consideration number (1} the seriousness ofthe charge and the potential penalty only apply to this instance beforefTie. Considerations (2) and (3) do not apply. The cases I have set outabove all dealt with domestic inquiries held by various Boardsparticularly Sport Bodies. Administrative Law has drawn a distinctionbetween the application of the principles of natural justice in respect ofdomestic inquiries held by academic bodies, such as Universities,colleges, and other bodies such as the Sports Bodies referred toearlier. This principle in relation to academic discipline has been setout as follows :-"the right to a fair hearing has been invoked in anumber of cases by senior and junior members of Universities andcolleges, though not as yet with success. The Courts have in generalheld that academic disciplinary proceedings require the observance 6fthe principles of natural justice ; but equally they have refused to applyunduly strict standards, provided that the proceedings aresubstantially fair". Wade – Administrative Law (5th Ed.) pages501-502. I have earlier referred to the dicta of Webster, J. who dealtwith the considerations : for the exercise of discretion and stated asfollows 'This list is not of course, intended to be comprehensive ;particular cases may throw up other particular matters”. In respect ofthis dicta I should state that we must consider the principle ofrepresentation legal or any kind of representation in the context ofwhat prevails in our country. Inquiries regarding academic disciplineshould be fair, expeditious and not unduly time consuming. None ofthe cases which have been referred to above as regards legal or otherrepresentation are cases arising from academic discipline. There is noreported instance so far in our country where at an university domestic
inquiry pertaining to students there has been legal representation. Iflegal representation is permitted here in respect of domestic inquiriespertaining to university discipline, those inquires will also go the waythe inquiries have gone before Primary Courts. Labour Tribunals. RentBoards and such others long drawn inquiries, applications for datesafter dates, and sometimes mostly irrelevant prolonged proceedings. Ihave referred to the evil and the ills of legal representation which willeffect domestic disciplinary inquiries by a university. Perhaps, whenthe Board of Appeal rejected the application of the petitioner forrepresentation, the Board had in mind the evil I have referred to above.In this instance I cannot at all hold that the Sub-Committee erred in theexercise of its discretion, in holding that legal representation was notnecessary at that stage, which was the stage of an appeal to the■Vice-Chancellor. I held that no principle of fair-play or of natural justicehas been violated by this petitioner not having representation legal orotherwise at the hearing of the appeal.
In the course of the argument learned counsel for the petitionerraised two matters :
That there has been a delegation of the disciplinary powers ofthe Vice-Chancellor under the Universitie's Act, No. 16 of1978, and that the Vice-Chancellor had no power to delegate.
That the full Committee which was appointed by theVice-Chancellor to hear the appeal did not hear the appeal.
Learned President's Counsel for the respondents objected to thesetwo grounds on the premises that these two grounds have not beenpleaded, and that this Court has held that in Writ Applications groundsnot pleaded cannot be set up in the course of the hearing. There aretwo decisions of this Court supporting this objection to raising newgrounds at this hearing, to wit – T. Jayalingam v. University of Ceylon
and Carron v. Land Reform Commission (13). The secondground that the full Board did not sit cannot also be factuallysupported. The Vice-Chancellor appointed a Sub-Committeeconsisting of the 2nd, 3rd. 4th and 5th respondents to this applicationto hear the appeal. The 2nd respondent excused himself and did notfunction in the Committee, as such the 3rd, 4th and 5th respondentsonly heard that appeal. There is this distinction in the instance of thepresent application, from the instances which arose in the cases ofPaul v. Wijerama (14) Wijerama v. Paul {15) and in Fernando's casereferred to above, in which cases it was revealed that on certainoccasions the entire Committee did not sit but some of them sat.
In view of the reason given by me above, I hold that the petitionerhad a fair inquiry before the original inquiry Committee and also beforethe Sub-Committee which heard the appeal, but I must add that itwould have been more advisable for the University to have informedthe petitioner in the letter written to her on 16.7.1982 (not produced)that an allegation has been made that loose sheets of paper containingnotes were tied to her answer script and that she should presentherself for an inquiry to be held by Dr. Jayaratne on 21.7.1982. If thisstep was taken there may have been no ground for complaint by thispetitioner and for these prolonged proceedings which havecommenced in this Court on 4.7.1983, and continued up today (andwith a likelihood of further legal proceedings)..
The application of the petitioner is refused, and the application isdismissed with nominal costs fixed at Rs. 250.
B. E. DE SILVA, J. -1 agree.
Application dismissed.