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v.PANDITHARATNE & OTHERS
COURT OF APPEAL.
H. A. G. DE SILVA. J. AND T. D. G. DE ALWIS, J.
C. A. APPEAL No. 99/84.
MAY 2, 3 AND 4, 1984.
Writ of Certiorari – Writ of Prohibition – Universities Act, No, 16 of1978 – Suspension of student by Vice Chancellor pending inquiry – Whether ViceChancellor had power of suspension – Whether suspension was malicious orunfair – Appointment of Committee to hotd inquiry, whether valid – Delegation ofdisciplinary powers.
De Saram v. Panditharatne
The petitioner, a final year student of the Engineering Faculty of the University ofPeradeniya was suspended from the University by the Vice Chancellor (1 st respondent)pending inquiry into allegations of indiscipline and misconduct during the penod 11 th to17th July. 1983. The 1st respondent thereafter appointed P H. Victor Silva (3rdrespondent) to inquire into the allegations. The petitioner made application for the issueof a Writ of Certiorari quashing the order of suspension and for a writ of prohibitionprohibiting the 3rd respondent from holding the investigation and inquiry.
The duty of maintaining discipline in the University is conferred on the Vice Chancellorby the Universities Act. Where a person is responsible for the maintenance of disciplinein a particular institution, suspension pending inquiry would be an inherent or impliedright flowing from such responsibility. The question whether the suspension pendinginquiry is tainted with malice or unfairness is a different matter. However taking all thecircumstances into consideration in the instant case, it cannot be said that the 1strespondent has acted unfairly or maliciously.
Section 131 (1) of the Universities Act which makes provision for "any person" to beprohibited from entering the precincts of the University after giving such person anopportunity of being heard, applies not to students but to outsiders whose presence inthe campus would be detrimental to the moral life of the student community. Hence, astudent need not be given a hearing before a prohibition is imposed on him fromentering the campus. The suspension imposed in the instant case is one pending inquiryand is not by way of punishment. This kind of suspension does not attract the principleof natural justice, audi alteram partem, whereas penal suspension would definitely doso. It cannot therefore be said that the suspension was arbitrarily imposed. It isnecessary however that the 1st respondent did not act unfairly. Considering thecircumstances of the case it is not possible to say that suspension was unfair.
The mere appointment by the disciplinary authority of a committee to inquire andinvestigate allegations is not improper. The authority must however, finally apply hisown mind to the facts as found by the committee of inquiry and arrive at his owndecision. The automatic acceptance of the recommendations of the committee withoutthe exercise by the disciplinary authority of his own discretion would amount to adelegation of his powers In the instant case, there has been no such delegation andthe 1st respondent had the authority to appoint the 3rd respondent to inquire andinvestigate.
Cases referred to :
Furnellv. Whangarei High Schools Board  A C. 660.
Lewis v Heffer  3 All E R. 354
R. P. Kapur v. Union of India (1964). A.I.R. Punjab 787.
Manoharan v. President. Peradeniya Campus. (C.A. Application No. 216/78. C.A.Minutes dated 19.12.78).
Ram Chander Roy v. the University of Allahabad (1956) A.I.R. Allahabad 46
Basti Sugar Mills Co. Ltd. v. State of Uttar Pradesh Air 1954 Allahabad 538.Nimal Senanayake P.C. with L. M. Samarasmghe for petitioner.
K. N. ChoksyP.C. with D. H. N. Jayamaha and Nihal Fernando for respondents.
Cur. adv. vult.
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June 15. 1984.
T.D. G. DE ALWIS, J.
The petitioner is a final year student of the Engineering Faculty of theUniversity of Peradeniya. He had completed Parts I and II of the FinalExamination and was due to commence lectures for Part III on 2.1.84.By letter dated 20.12.83 marked 'A' the petitioner was informed bythe Vice-Chancellor of the University, the 1st respondent, that hisstudentship was suspended with immediate effect. The reasons setout in this letter of suspension were that he was responsible inorganising students and inciting them to indulge in acts of violenceand indiscipline and violate the rules and regulations of the Universityand thus disturbing the peace of the University during the period 11 thto 17th July 1983. He was also informed by letter “A" that hissuspension was pending inquiry into the above allegations. Thereafterby letter dated 16.1.84 the 1st respondent has informed thepetitioner that he had appointed P. H. Victor Silva B.A. (Lond.)Advocate, the 3rd respondent to inquire into the allegations ofindiscipline and misconduct which formed the basis of the letter ofsuspension.
The petitioner has pleaded that the suspension order was illegal inthat as submitted on his behalf, the 1 st respondent had no power ofsuspension, that the order of suspension was made mala fide, andthat the order of suspension was arbitrary in that the petitioner wasnot given an opportunity of showing cause against such an order. Thepetitioner has further pleaded that the appointment of the 3rdrespondent was without any lawful authority. He has accordinglyprayed for the issue of a writ of certiorari quashing the order ofsuspension, and a writ of prohibition prohibiting the 3rd respondentfrom holding the investigation and inquiry referred to in letter “B".
The circumstances that led to the suspension of the petitioner and62 other students of the University are set out in paragraphs 2 to 15in the 1st respondent’s affidavit, which averments have not beenrefuted in the counter affidavit of the petitioner. The circumstancesreferred to by the petitioner are as follows
There were student disturbances in the University in the month ofDecember 1982, and the C. V. Udalagama Committee was appointedto investigate and report on those disturbances. The UdalagamaCommittee recommended certain punishments in respect of several
CADe Saram v. Panditharatne (T. D. G. De Alwis, J.)109
students. On 6.6.83 the Council of the University discussed theUdalagama Committee Report and resolved : (a) that the punishmentof expulsion recommended on four students be mitigated tosuspension for three years ; (b) two students be suspended for sixmonths ; (c) several other minor punishments be imposed on anumber of students. Accordingly six students were suspended by the1 st respondent. The General Student Body made representations thatthe punishments be withdrawn. The Council of the Universityconsidered this demand and on 7.7.83 decided that the punishmentsshould stand, and that if the students created trouble the Campusshould be closed. This decision was conveyed to the students thesame evening. The students held several meetings and decided todefy any order to leave the Campus if such order was issued. Theprotest activities of the students to the Udalagama Committee Reportwhich commenced on 4th July were intensified and several meetingswere held and posters were pasted in various places within theUniversity premises.
On 11 th July the 1 st respondent received information that thestudents had surrounded the administrative building, and heconsidered it upsafe to come to the office. He attended to his officialduties from his residence and decided to close the University. The 1 strespondent notified the students that the University was closed witheffect from 11 th July 1983 and that they should leave the halls ofresidence by 6 p.m. that day, and that thereafter the Campus was outof bounds to all students. Some students left, but more than half thestudents defied the 1 st respondent's order. The student population ofthe University was over four thousand. On the night of 11 th July thestudents cut off access to the main administrative building, the Artsbuilding and the Library. They occupied the administrative building andforced open the Gymnasium from which sports equipment such ashockey sticks, etc., were removed. Processions and demonstrationswere held, and some students commenced a fast unto death. Thesecurity personnel were interfered with, and the students took controlof the Telephone Exchange, and of some University vehicles.
The 1st respondent whilst being confined to his residence helddialogue with some members of the Executive Committee of theStudent Body, and the Deans and some of the lecturers between the12th and 14th July and reached the following compromise :- (1) thestudents who had been suspended be permitted to sit the examination
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to be held shortly ; (2) the students who had been punished be givenan appeal to a Review Committee to be established ; (3) thebarricades preventing access to the administrative building, the Artsbuilding and the Library be removed forthwith ; (4) the students toabide by the Quit Campus Order to enable the University to be openedas soon as possible. This formula was completely rejected by asection of the students (the activist group). Further attempts weremade to reach agreement but they failed.
The 1 st respondent then in consultation with the Deans and somemembers of the staff agreed to grant almost all the demands of thestudents, except the demand for a total rejection of the UdalagamaCommittee Report. This was on the morning of the 15th July.Thereafter shortly before noon that day the 1 st respondent receivedinformation that Prof. H. W. Dias, the Dean of the Faculty of Science,had been taken hostage by a group of students whilst on duty at hisoffice and that he was being dragged along by some students carryinglethal weapons and threatening to kill him if he resisted. About thesame time the 1st respondent received information that thetelephones in the Deans' Office and the security office, and someUniversity vehicles had been damaged. A large number of members ofthe academic staff expressed concern for Prof. Dias, and realising thatProf. Dias must be saved at any cost the 1st respondent agreed togrant all the demands of the students. A document was signed by the1st respondent granting the several demands of the students,including the withdrawal of the punishments, and the withdrawal ofthe order closing the University and declaring it out of bounds to thestudents. The students rejected this document on the ground thatthere were no witnesses to it. Thereafter two more documents wereprepared which the students did not accept. More demands weremade. Finally the last document containing the granting of sevendemands put forward by the students was accepted by them at 3.10p.m. that day, and Prof. Dias was released that day, at about 5.30p.m. After Prof. Dias' release the 1st respondent maintained thatthese demands were granted under duress and that they were notenforceable or valid. Thereafter on the 16th July the police arrived,and in the words of the 1 st respondent the students were "flushedout of the Campus. The exams were conducted during the periodSeptember to December 1983 under special arrangements as tosecurity and conduct of t|ie examination. The University was to bere-orened only on the 2nd January, 1984. Prior to that date 63
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students whom the 1st respondent considered responsible for theincidents between the 11 th and 1 7th July were suspended. Thepetitioner was one of them.
It was submitted on behalf of the petitioner that the Vice-Chancellorhas no power of suspension under the provisions of the UniversitiesAct No. 16 of 1978. The function of the Vice-Chancellor regardingdiscipline is contained in section 34(6) of the Act which is asfollows "The Vice-Chancellor shall be responsible for themaintenance of discipline within a University". It was urged by learnedcounsel for the petitioner that section 34(6) of the Act should be readwith section 29 (n) of the Act. Section 29 (n) is as follows 'Subjectto the powers, duties and functions of the Commission, a Universityshall have power to regulate and provide for the residence, discipline,and well-being of students, and teachers and other employees of theUniversity". The duties and functions conferred on a University areperformed and discharged by the University Council – vide section45(1) of the Act. It is common ground that no regulations have beenmade under section 29(n) of the Act. It was submitted that thepurpose of making regulations under section 29 (n) was to specifywhat sort of behaviour by the students would be consideredobjectionable, and also to regulate the punishments that could beimposed by the Vice-Chancellor for such lapses. But, section 29(n) ofthe Act does not make it mandatory for the Council to makeregulations, whereas section 34(6) positively casts the duty ofmaintaining discipline in the University on the Vice-Chancellor. Hencethe failure or ommission of the Council to make regulations undersection 29(n) of the Act cannot in my view relieve the Vice-Chancellorof his responsibility to maintain discipline in the University.
The question then arises whether the Vice-Chancellor has the powerto suspend a student pending inquiry. The Act enacts that theVice-Chancellor shall be responsible for the maintenance of disciplinewithin a University. There is no limitation placed on the manner inwhich he is to maintain discipline, or how that power is to beexercised. Suspension pending inquiry is not necessarily punishment.In some instances suspension pending inquiry may be necessary, andin some instances it may not be necessary. The necessity ofsuspension pending inquiry will depend on the facts of the particularcase. Thus it would appear that where a person is responsible for themaintenance of discipline in a particular institution suspension pending
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inquiry would be an inherent or implied right flowing from suchresponsibility. The question whether the suspension pending inquiry istainted with malice or unfairness is a different matter, and what nowconcerns the petitioner in this case is not the power of theVice-Chancellor to suspend pending inquiry, but whether hissuspension pending inquiry is malicious or unfair.
It was urged that in the case of a student as in this case suspensioneven if it is pending inquiry is penal, and hence is bad in that he wasnot heard before being suspended. It may be said that the case of astudent differs from that of a paid employee regarding suspension orinterdiction pending inquiry. Generally a paid employee is paid at leasta part of his wages during interdiction pending inquiry and if he isexonerated he would be paid his entire balance wages. But in the caseof a University student suspension pending inquiry will result in morehardship than in the case of a paid employee. Missing lectures for afew months can result in his failing the exam or in his failure to obtain aclass in his degree. Nevertheless even in the case of a student thelarger interests of the institution will have to be considered and thebest person to know whether suspension pending inquiry is necessarywould be the Vice-Chancellor who however should act bona fide andin the best interests of the institution. Hence the question that has tobe considered is whether the suspension was actuated by malice, orwhether in the circumstances of this case the suspension was unfair.The petitioner has pleaded malice. But he has not pleaded any factsshowing personal malice on the part of the 1 st respondent towardshim. The malice he seems to allege is hatred or dislike to all the 63students whom the 1 st respondent considered ring leaders in the Julydisturbances. He alleges that the 1st respondent suspended himpurely for the purpose of punishing him by making him miss lectures. Itmust however be borne in mind that the 1 st respondent had evidencebefore him against the petitioner which he considered sufficient primafacie evidence as to the petitioner's participation in the Julydisturbances. The 1st respondent has stated in his affidavit that hehad security reports that the petitioner was one of the persons whoordered three security guards out of the administrative building afterthe Campus was declared out of bounds to the students, and that onthat occasion the petitioner was carrying an iron rod in his hand. Thenthere is the affidavit of Prof. J. A. Goonawardena, Professor ofElectrical Engineering of the petitioner's own Faculty, namely the
De Saram v. Panditharatne (T. D. G. DeAlwis, J.)
Faculty of Engineering, that during the period that the Campus wasdeclared out of bounds to the students he saw the petitioner withinthe Campus and he was collecting funds for the student's cause, andasked for a contribution from Prof. Goonawardena himself and wantedto explain the student's point of view to him, all within the Campus.
It was submitted that on the 1 st respondent's own affidavit he hadthis information against the petitioner in July itself, but he stayed tillDecember 1983, a few days before the opening of the University tosuspend him. The allegation of mala fides is solely based on this delayin the initiation of the disciplinary inquiry. The reasons for the delay areset out in paragraph 16 of the 1st respondent's affidavit. Theseaverments are not refuted by the petitioner in his counter affidavit. The1st respondent states that immediately after the students left theCampus the C.I.D. came to the Campus to commence their inquiriesinto the incidents of July. They were recording the statements ofvarious personnel oi the University staff when on the 24th July thecommunal disturbances broke out and a state of emergency wasdeclared. As a result the police and C.I.D. were withdrawn and theyreturned only several weeks later to continue their investigation. Theannual examinations had to be scheduled and held on a phased outbasis, presumably because the University authorities did not considerit prudent to have the entire University in session at that juncture. Theexaminations were accordingly held in the months of August,September, October and November 1983. The 1st respondent statesthat he did not consider it prudent to take disciplinary action againstthe students who were involved in the disturbances till the conclusionof the examinations as it was necessary to provide the students anenvironment conducive to sit the examination. In fact the petitionerhimself sat his Final Part II examination on that occasion. The 1strespondent has therefore explained his delay in taking action againstthe petitioner. Then one should take into consideration thecircumstances and the atmosphere in which the Campus was closedon the 17th July. Prof. Dias was held as a hostage. The students weredemanding the complete rejection of the Udalagama CommitteeReport, amongst other demands. The 1 st respondent who up to thenhad resisted this main demand had to give in to the students as he andthe other members of the academic staff feared for the life of Prof.Dias. The 1st respondent in fact tricked the students into releasingProf. Dias by giving them the final document agreeing to their
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demands in toto. Immediately Prof. Dias was released the 1strespondent maintained that he gave in to the demands of the studentsunder duress and that what he agreed to were neither enforceable norvalid. So that when the University was scheduled to re-open on 2ndJanuary 1984, it was to re-open with the main issue between thestudents and the University, namely the demand for the completerejection of the Udalagama Committee Report still unsettled, and withthe students smarting under the manner in which their course ofaction was foiled on the 16th July 1983. The 1st respondent statesthat he had to suspend these 63 students pending inquiry in theinterests of the institution consisting of over four thousand threehundred students. Taking into consideration the situation thatconfronted the 1 st respondent I cannot say that the 1 st respondenthas acted unfairly or maliciously.
It was also submitted that the letter of suspension "A” was bad inthat it prohibited the petitioner from re-entering the Campus withoutthe 1st respondent's authority. It was contended that a student couldbe prevented from entering the Campus only in the manner set out insection 131 (1) of the Universities Act No 16 of 1978. This section isas follows
"Where the presence of any person in the precincts of a HigherEducational Institution is, in the opinion of the governing authority ofthat Institution, undesirable, the principal executive officer of thatInstitution, after giving such person an opportunity of being heard,may with the consent of that governing authority, by writing underhis hand served on such person prohibit such person from enteringor remaining within such precincts or within such part thereof asmay be specified in such writing. Such prohibition shall be andremain in force until revoked by such principal executive officer withthe consent of such governing authority".
Learned Counsel submitted that the words 'any person" in section131 (1) must include a student also. Hence under this section thepetitioner cannot be prevented from entering the University premiseswithout giving him an opportunity of being heard. Section 131 (2)makes a certificate issued by the principal executive officer inaccordance with the provisions of subsection (1) receivable andacceptable by Courts as evidence of the facts stated in the certificateuntil the contrary is proved. Section 132 prescribes a penalty of a finefor disobeying the prohibition mentioned in section 131 (1). I have
De Saram v. Panditharatne IT. D. G. De Alwis, J.)
grave doubts that these penal provisions were meant for the students.These provisions would apply only to outsiders whose presence in theCampus would be detrimental to the moral life of the studentcommunity. This is quite clear when one examines the relevant sectionof the first Ceylon University Ordinance of 1942 (Chap. 186), namelysection 60 (1). It reads : "It shall be lawful for the Vice-Chancellor withthe consent of the Council, by writing under his hand served on anyperson who has been convicted of an offence under the provisions ofsection 365 or section 365A of the Penal Code or of section 2 of theBrothels Ordinance to prohibit such person from entering or remainingwithin the University radius or within such part thereof as may bespecified in the writing. Such prohibition shall be and remain in forceuntil revoked by the Vice-Chancellor with the like consent". It would beseen that this section in the Ceylon University Ordinance of 1942prohibited only persons who had been convicted of having committedunnatural offences or of having run a brothel from remaining within theUniversity radius. The present section has only enlarged the scope ofthe former section and has included several other categories ofpersons like for example prostitutes and dope pedlars and the likewhose presence would be detrimental to the moral life of theUniversity students. Hence it is clear that this section does not applyto students.
It was contended that the suspension even pending inquiry was badas the petitioner was not given a hearing before the order ofsuspension was made. A similar situation arose in the case of Furnell vWhangarei High Schools Board (1). There a school teacher wassuspended pending charges against him. He was not given anopportunity to state his case before the decision to suspend wasmade. The question that came up for decision was whether theprocedure was unfair and against the principles of natural justice. Themajority of the judges of the Privy Council held that one of theprinciples of natural justice was that a man should not be condemnedunheard, but in this case the sub-committee that recommendedsuspension neither condemned nor criticised, and further that theBoard in suspending the appellant pending inquiry did not actirresponsibly or unfairly. Lord Morris in delivering the majorityjudgment said :
"Suspension is discretionary. Decisions as to whether to suspendwill often be difficult. Members of a body who are appointed orelected to act as the governing body of a school must in the
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exercise of their responsibilities have regard not only to the interestsof teachers but to the interests of pupils, and of parents and thepublic. There may be occasions when having regard to the nature ofthe charge it will be wise, in the interests of all concerned, thatpending decision whether the charge is substantiated a teacher
should be suspended from dutyIt is not to be assumed that
a Board, constituted as it is, will wantonly exercise its discretion”.
In the case of Lewis v Heffer (2), the facts were : In theParliamentary constituency of Newham North-East which was a safeLabour seat, there were two factions, the L faction and the B faction.The annual general meeting of the constituency party was to be held inFebruary 1977, to elect office bearers for the year 1977-78. Itappeared as if the B faction would be in the majority. After obtainingan injunction as regards the delegates who might vote at the meetingthe L faction gained control at the meeting held to elect theconstituency committee and office bearers, but following a split in theranks of the L faction the local general meeting became equally dividedbetween the two factions. After a further period in which attemptsmade to hold meetings to the local general committee had beenfrustrated by injunctions, boycotts, and serious disturbances theNational Executive Committee of the Labour Party (the N.E.C.)decided that the state of affairs in the constituency were so seriousthat there would have to be an inquiry into its affairs. Accordingly on26th October 1977 the N.E.C. resolved to suspend the generalcommittee, the executive committee, and the officers of theconstituency party pending the results of the enquiry and to authorisethe party's agent to conduct the day-to-day affairs of the constituencyparty and to take the necessary steps to convene the next generalcommittee meeting. The suspensions were effected without thepersons concerned being given an opportunity of being heard. TheN.E.C. inquiry was held on 20th November. The L faction learned ofthe enquiry's report and recommendations, and fearing that therecommendations would, if implemented, •imperil the position held bythem in the constituency party, brought an action against the N.E.C.claiming inter alia that the suspensions were invalid because the rulesof natural justice require the N.E.C. to give the persons concernednotice and an opportunity of being heard before they suspended theoperative organs of the constituency party. The N.E.C. contended thatby virtue of clause VIII (2) of the National Party's rules they were
De Saram v. Panditharatne (T. D. G. Da Alwis, J.)
empowered to take the action they took and the rules of natural justicedid not apply in the circumstances. It was held that there had been nobreach of the rules of natural justice. It was only where a suspensionwas to be effected by way of punishment that natural justicedemanded that the persons concerned should be given an opportunityof being heard before the suspension was imposed. Where asuspension was made as a holding operation pending inquiries therules of natural justice did not apply, because the suspension wasdone merely as a matter of good administration in a situation whereprompt action was necessary. In the autumn of 1977 the situation inthe constituency was such that prompt action was necessary and theN.E.C/s action in suspending the officers and the committees wasmerely administrative. It would have been impracticable for them atthat stage to have given the persons concerned an opportunity ofbeing heard, and they were not required to do so. The majorityjudgment in Furnell's case was followed here. In the course of theirjudgments Lord Denning M.R. said at page 364 : 'But then comes thepoint: are the N.E.C. to observe the rules of natural justice ? MegarryJ. held in  2 A.E.R. 274 at 305, that they were. He said :
Suspension is merely expulsion pro tanto. Each is penal
and each deprives the member concerned of the enjoyment of hisrights of membership or office. Accordingly, in my judgment, therules of natural justice prima facie apply to any such process ofsuspension in the same way that they apply to expulsion'
These words apply no doubt to suspensions that are inflicted by wayof punishment, as for instance when a member of the Bar issuspended from practice for six months, or when a solicitor issuspended from practice. But they do not apply to suspensions whichare made as a holding operation pending enquiries. Very oftenirregularities are disclosed in a government department or businesshouse ; and a man may be suspended on full pay pending inquiries.Suspicion may rest on him, and so he is suspended till he is cleared ofit. No one, as far as I know, has ever questioned such a suspension onthe ground that it could not be done unless he was given notice of thecharge and an opportunity of defending himself, and so forth. Thesuspension in such a case is merely done by way of goodadministration. A situation has arisen in which something must bedone at once. The work of the department or office is being affected
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by rumours and suspicions. The others will not trust the man. In orderto get back to proper work the man is suspended. At that stage therules of natural justice do not appl.y”
Geoffrey Lane L.J. said at page 368 ; 'So far as the rules of naturaljustice are concerned, it is suggested that before the N.E.C.suspended the committee and officers they should have been heard,and the fact that they were not heard was a breach of the rules ofnatural justice sufficient to invalidate the suspension. It seems to methat this suspension was an administrative action which by its verynature had to be taken immediately. It was impossible for the N.E.C. atthat stage to hear both sides. In most types of investigations there is inthe early stages a point at which action of some sort must be takenand must be taken firmly in order to set the wheels of investigation inmotion. Natural justice will seldom if ever at that stage demand thatthe investigator should act judicially in the sense of having to hear bothsides. No one's livelihod or reputation is at that time in danger. But thefurther the proceedings go and the nearer they get to the imposition ofa penal sanction or to damaging someone's reputation or to inflictingfinancial loss to someone, the more necessary it becomes to actjudicially, and the greater the importance of observing the maxim, audialteram partem. It seems to me in the present case, so far as onecould judge on the facts before us, natural justice does not demandthat any one should be invited to provide an explanation or excusebefore that suspension was imposed"
In the Indian case of Ft. P. Kapur v. Union of India (3) Article 314 ofthe Indian Constitution came up for consideration. Article 314 is asfollows :-”Except as otherwise expressly provided by this Consitutionevery person who having been appointed by the Secretary of State orthe Secretary of State in Council to a Civil Service of the Crown in Indiacontinues on and after the commencement of the Constitution toserve under the Government of India or of a State shall be entitled toreceive from the Government of India and the Government of theState, which he is from time to time serving, the same conditions ofservice as respects remuneration, leave and pension, and the samerights as respects disciplinary matters or rights as similar thereto aschanged circumstances may permit*. On 18th July 1959 theappellant who was in the Indian Civil Service in Madras at the time ofthe transfer of power was interdicted by the Governor of Punjab wherehe was then serving on the ground that a criminal case was pending
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against him. The appellant filed writ in the High Court of Punjabchallenging this order of suspension. His contention was that he wasentitled to the guarantee contained in Article 314 of the Constitution.He relied on R 49 of the Appeal Rules which provided for suspensionas a penalty. He contended that the Appeal Rules which governed himand which must be held to have continued to govern him in view of theguarantee contained in Article 314, provided for suspension as apenalty only and that there was no provision anywhere in any rule orstatute immediately before the date on which the Constitution cameinto force providing for suspension otherwise than as a penalty.However it was held by the majority judgment in that case that thewords “disciplinary matters" in Article 314 of the Constitution must begiven their widest meaning consistent with what disciplinary matterswould reasonably include. That suspension was of two kinds ; namelyas punishment or as an interim measure pending a departmentalinquiry or pending a criminal proceeding ; that both these kinds ofsuspension must be comprised within the words 'disciplinary matters"as used in Article 314.
These authorities support the proposition that suspension is of twokinds, one pending inquiry and the other as a punishment, and that theformer would not attract the principle of natural justice, audi alterampartem, whereas the latter would definitely do so. It is my view thatthe suspension of the petitioner in this case was only pending inquiryand not penal. Hence the contention that the 1st respondent actedarbitrarily because he did not give the petitioner a hearing before hewas suspended must fail.
However it is necessary that the 1 st respondent did not act unfairly.
I have already adverted to the circumstances in which the 1strespondent was placed when he issued the impugned suspensionorder. In addition it must be mentioned that shortly after thesuspension the 1st respondent appointed the 3rd respondent toinquire and investigate into the matters which formed the basis of theorder of suspension. By the time the 1st respondent filed his affidavit,namely the 22nd February 1984, that is within less than six weeks ofhis appointment, the 3rd respondent had submitted his reports on thecases of 34 students he had inquired into. By this time the petitionerhimself was summoned before the 3rd respondent, but his case couldnot be inquired into, because as averred in paragraph 19 of the 1 strespondent’s affidavit, which averment is not refuted in the
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petitioner's counter affidavit, the petitioner declined to make anystatement or present his case before the 3rd respondent on theground that these proceedings are pending in this court. In all thecircumstances of this case therefore it is not possible to say that the1 st respondent acted unfarily in this matter.
The next point relied on by the petitioner is that the appointment ofthe 3rd respondent was without lawful authority. It was submitted thatif the disciplinary power in the University was with the 1 st respondenthe had no authority to delegate that power to the 3rd respondent.However in this case there is no material to show that any disciplinarypower has been delegated to the 3rd respondent. He has beenappointed only to inquire and investigate into the matters that formedthe basis of the suspension orders. In fact the 3rd respondent'sfunction appears to be to submit a report to the 1 st respondent fornecessary action. This is evidenced by paragraph 18 of the 1strespondent's affidavit where it is stated that 'Mr. Silva (the 3rdrespondent) commenced his inquiries and has submitted reports hehas inquired into so far numbering 34 and I have taken necessaryaction in these cases, and have withdrawn the suspension orders insome such cases.' Learned Counsel for the petitioner referred us tothe judgment of Soza J. in the case of Manoharan v. President.Peradeniya Campus, (4). In that case a student of the PeradeniyaCampus, the precursor to the Peradeniya University, was found havingwith him some pre-written notes in the examination hall. This was acontravention of Chapter VIII, Part I, section 9 (1) and (2) of theGeneral Act of the University of Sri Lanka. A committee of inquiryinquired into this matter and found the petitoner guilty, and inaccordance with the recommendations of the committee, approvedby the President, the Registrar wrote to the petitioner that he will bedeemed to have failed the Final Examination of 1976, in all the papersbut will be allowed to sit the 1977 Examination but without eligibilityfor honours. Part 1 of Chapter VIII of the General Act of the Universityby Section 9 (5) provided that where the Vice-Chancellor is satisfiedthat any candidate has contravened or attempted to contravene theprovisions of section 9 he may suspend him from the Examination orremove his name from the pass list and report the matter to the Boardof Residence and Discipline for such further action as the Board maywish to take. The President claimed that he has been now delegatedthe powers of the Vice-Chancellor, but proof of that delegation was
De Saram v. Panditharatne (T. D. G. Da Alwis. J.)
not produced. It was therefore held that there was no authority to theVice-Chancellor to delegate his powers to the President. What isrelevant to the submission of learned counsel for the petitioner in thispresent case is the further finding that, even if such delegation couldbe proved the President cannot delegate these powers to a committeeof inquiry whose rcommendation he has merely approved. In thisconnection Soza J. says : "In the instant case firstly there is noauthority to the Vice-Chancellor to delegate his powers to thePresident. Secondly even if such power of delegation could bepresumed and the President may stand in the shoes of theVice-Chancellor, still it is not the President who has exercised thequasi judicial powers. He has delegated his powers to a committee ofinquiry whose recommendations he has merely approved. It cannot begainsaid that the committee comprised persons of eminence. Yet thedeciding authority should not reduce himself to a rubber stamp of theinquiring body. True in the English Law which we follow it is not alwaysnecessary that he who hears must decide. Yet it must be evident thatthe deciding authority applied his own mind to the facts as found bythe committee of inquiry and arrived at his own decision." Thisauthority does not establish the proposition that the disciplinary bodycannot appoint a committee of inquiry to report on the subject beforethat body. It only establishes the proposition that the disciplinary bodymust ultimately arrive at its own decision.
In the Indian Case of Ram Chander Roy v. the University ofAllahabad (5) the facts were : the convocation of the University wasscheduled to be held in November 1954, but was postponed becausethe University Union had passed a resolution to boycott the Chancellorwhen he attended the convocation. The convocation was howeverheld on 3.3.55. That day when the Chancellor came to participate inthe convocation slogans were shouted to demonstrate against him,'which naturally annoyed the Chancellor and the Vice-Chancellor. TheVice-Chancellor appointed a committee of inquiry consisting of himselfand four others to inquire into this incident. After the inquiry theVice-Chancellor rusticated the petitoner for four years. The petitonerchallenged this order on various grounds, one being that the order ofthe Vice-Chancellor was void in that he was associated in thecommittee of inquiry with four others whereas the power ofmaintaining discipline had been conferred on the Vice-Chancelloralone. Bhargava J. delivering the judgment of the court stated :" The
Sri Lanka Law Reports
 2 Sri L.R.
inird point urged by learned counsel was that the power of takingaction for maintaining discipline had been conferred on theVice-Chancellor and his order in the case of the petitioner was voidinasmuch as in the inquiry he had associated himself with certain otherpersons who formed the inquiry committee, on the basis of therecommendation of which the order of rustication of the petitionerwas passed.
It is true that the power has been conferred on the Vice-Chancellorand it has to be exercised by him by exercising his own discretion, butit appears that this is exactly what the Vice-Chancellor in this case did.A copy of the order made by the Vice-Chancellor forms an annexe tothe affidavit filed by the petitioner and it shows that theVice-Chancellor gave his best consideration to the report of the inquirycommittee, which has been constituted by him and thereupon decidedto accept the recommendations of the committee.
After coming to this decision he passed the order of rustication onthe petitioner which is impugned by this petition. The order, whichwas finally passed was therefore passed on the basis of the exerciseof his discretion by the Vice-Chancellor himself and was not the resultof any automatic carrying out of the recommendations of the inquirycommittee. In exercising discretion the Vice-Chancellor had the reportof the inquiry committee before him as the material on the basis ofwhich he could form his opinion.
The consideration of such material for the exercise of his discretionby the Vice-Chancellor was not prohibited by any law and his orderdoes not become invalid simply because he took the report of theinquiry committee into consideration. For this proposition we aresupported by a decision of the Full Bench of this Court in Basti SugarMills Co. Ltd. v. State of Uttar Pradesh. (6)"
In the instant case there is no material whatsoever that the 1strespondent has delegated his disciplnary powers to the 3rdrespondent. The 3rd respondent has been appointed only to inquireand investigate and as averred in paragraph 18 of the 1strespondent's affidavit the 3rd respondent has submitted his reports tohim. Even in the case of Manoharan v. the President, PeradeniyaCampus (4) relied on by the petitioner, Soza J. has nowhere held thatthe appointment of a gommittee of inquiry was unlawful. He has
De Saram v. Panditharatne IT. D. G. DeAlwis. J.)
critised the order of the President solely on the ground that thePresident merely adopted the report of the committee withoutexercising his individual discretion. In the case of the petitoner in thiscase that stage has not yet arrived. I am of the view that the 1strespondent had the authority to appoint the 3rd respondent, and theappointment is a valid one.
In the result I would hold that the application of the petitioner mustfail, and accordingly his petition is dismissed. The petitioner being onlya University Student I make no order as to costs.
A. G. Df SILVA, J.-l agree.
DE SARAM v. PANDITHARATNE AND OTHERS