E. B. P. FERNANDO, Petitioner, and B. C. F. JAYARATNE, Respondent

022-NLR-NLR-V-78-E.-B.-P.-FERNANDO-Petitioner-and-B.-C.-F.-JAYARATNE-Respondent.pdf


SHARVANANDA, J.— Fernando v. Jayaratne
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Present: Tennekoon, C.J., Perera, J., and Sharvananda, J.
E. B. P. FERNANDO, Petitioner, and B. C. F. JAYARATNE,
Respondent
S. C. 267/72—Application for a Writ of Certiorari on B. C. F.
Jayaratne
Writ of Certiorari—Commissioner appointed under the Commissions ofInquiry Act (Cap. 393)—Failure to observe the rules of naturaljustice—Power only to inquire and make recommendations—Availability of the Writ.
Where an application for a Mandate in the nature of a Writ ofCertiorari is made to quash, the findings in a report made by aCommissioner appointed by the Governor-General under theCommissions of Inquiry Act (Cap. 393).
Held : the Writ does not lie inasmuch as an examination of theprovisions of the Commissions of Inquiry Act does not show thatthe report of the Commissioner was intended to be a step in aprocess which may in law have the effect of altering the legal rightsor liabilities of persons named in the report.
“ The only power that the Commissioner has is to inquire andmake a report and embody therein his recommendations. He hasno power of adjudication in the sense of passing an order whichcan be enforced proprio vigore, nor does he make a judicial decision.The report of the respondent has no binding force ; it is not a stepin consequence of which legally enforceable rights may be created•or extinguished.”
Obiter—“I am constrained to add that while there may
be no duty to act judicially, it does not follow that there is no duty
to act fairly by observing the principles of natural justice
Reason and justice require that the person concerned against whomthe Commissioner may feel inclined to make an adverse reportshould be heard before a finding is reached against him.”
APPLICATION for a writ of Certiorari.
M. Tiruchelvam, with D C. Amerasinghe and N. Tiruchelvam,for the petitioner.
K.M. M. B. Kulatunga, Senior State Counsel, with JayaweeraBandara, State Counsel, for the respondent.
Cur. adv. vult.
July 30, 1974. Sharvananda, J.—
The petitioner was at all dates material to this applicationholding the office of Chief Civil Engineer in the Ceylon FisheriesCorporation which was set up by virtue of an order made underSection 2 of the State Industrial Corporation Act, No. 49 of 1957.On 17th August, 1970 His Excellency the Governor-Generalacting under the authority of the powers vested in him by theCommissions of Inquiry Act No. 17 of 1948 appointed the res-pondent Bellange Cyril Fernando Jayaratne to be Commissionerfor the purpose of inquiring into and reporting to His Excellency,
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inter alia :
Whether during the period commencing cn 1st April.1965 and ending 31st May, 1970, any member of the Boardof Directors or any officer or employee of the CeylonFisheries Corporation has directly or indirectly by any act,omission, neglect of duty, impropriety, misconduct orotherwise misdirected the activities of the Corporation fromthe aims and objects for which it was formed or otherwiseimpeded the work of the Corporation ;
Whether during the aforesaid period any member ofthe Board of Directors or any officer or employee of theCeylon Fisheries Corporation has directly or indirectly byany act, omission, neglect of duty, impropriety, or miscon-duct caused any loss to the Ceylon Fisheries Corporationand, if so, the extent of the loss so caused.
and to make recommendations in respect of the matters investi-gated by the Respondent. The Respondent was authorised andempowered by the warrant of his appointment “ to hold all suchinquiries and make all such investigations into the matters setout in the warrant as may appear to be necessary ”. Therespondent was required to transmit to the Governor-Generala report under his hand setting out the results of his inquiriesand investigations and his recommendations. The petitioner wasrequested to attend the sittings of the Commission but he wasat no time informed by the respondent of the matters on whichhis evidence would be required or that his conduct was thesubject of inquiry by the Commission. The petitioner attendedthe sitting of the Commission and gave his evidence on17.1.1971. The respondent continued his sitting thereafter andin the absence of the petitioner heard the evidence of vitalwitnesses implicating the petitioner and attributing to himresponsibility for the shortfall in the storage capacity of thecold room at the Fishery Harbour at Galle. It is common groundthat no opportunity was afforded to the petitioner to contradictor controvert the allegations or evidence of the said witnesses.The respondent submitted his report to the Governor-Generalon 31.5.1971. In his report he made certain adverse findingsagainst the petitioner in respect of his work as an employee ofthe Ceylon Fisheries Corporation and held that “ the responsi-bility for the loss to the Corporation on the basis of furtherconstruction of the cold room or rooms to make up for theshortfall which might exceed Rs. 500,000 would have to be sharedbetween Mr. Eric Fernando (the petitioner) and Mr. DiasAbeysinghe ”. The petitioner states that following the respon-dent’s report to the Governor-General, he received a letter dated
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27.3.72 from the Ceylon Fisheries Corporation informing him thathis contract of employment with the Corporation would beterminated as from 31.3.1972, “ in as much as the Board ofDirectors of the Corproation have, in view of the adverse findingscontained in the respondent’s report lost confidence in thepetitioner ”. The petitioner states that though in terms of hisletter of appointment his employment under the Corporation wasterminable on the payment of three months’ salary in lieu ofthree months’ notice and that in terms of his contract, he hadbeen paid Rs. 6,000 representing three months’ salary and hisservices have been terminated according to the terms of hiscontract, the findings of the respondent against him containedin his report constituted the cause of his unjustifiable prematuretermination of services. The petitioner further complains thatthe circumstances of the termination of his services induced byrespondent’s report have deprived him of his right to enjoy thepension to which he was entitled. The petitioner states that therespondent was under a duty to act judicially and inform thepetitioner of the nature of the charge or allegations againsthim and afford him an opportunity of defending himself andexplaining his conduct and that the respondent was bound toobserve the rules of natural justice before coming to the saidfindings against the petitioner. The petitioner moves this Courtby way of this application for a Mandate in the nature of aWrit of Certiorari to quash the said findings of the respondentagainst the petitioner.
Though the petitioner, in the circumstances, has a realgrievance and has been affected grievously by the respondent’sadmitted failure to observe the principles of natural justice byaffording the petitioner an opportunity of contradicting or con-troverting the allegations against him before he made his findingagainst the petitioner, the question arises whether a writ ofcertiorari is available to quash the findings of the respondentarrived by him in the performance of his functions under theCommissions of Inquiry Act. This question was considered inthe case of De Mel vs. M. W. H. de Silva, 51 N.L.R. 105. Therethe Court held that as the Commissioner did not make an orderaffecting the legal rights of persons, his functipns could not beproperly described as judicial or quasi-judicial and that hence,no writ could lie against him. This case was followed in Dias vs.Abeygunawardena, 68 N.L.R. 409. This view of the position of theCommissioner was further affirmed in R. vs. Ratnagopal 70 N.L.R.409 where the Court held that in an inquiry under the Commis-sions of Inquiry Act the Commissioner does not act judicially orquasi-judicially and that his findings did not determine or affectthe rights of persons whose conduct is the subject of inquiry orreport by a Commission. Mr. Tiruchelvam appearing for thepetitioner questioned the correctness of the above decisions and
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stated that sufficient consideration had not been given to thesignificance of the Commissioner's report and its capacity toinjure persons named in his report. The burden of his argumentwas that the Commissioner was acting judically in making hisreport or recommendation and hence was subject to the super-visory jurisdiction of this Court.
One of the fundamental principles in regard to the issuingof a writ of prohibition or certiorari is that the writ can beavailed of only to remove or adjudicate on the validity of judicialacts. The expression “ judicial acts ” includes the exercise ofquasi-judicial functions by administrative bodies or otherauthorities or persons obliged to exercise such functions and is■used in contrast with what are purely ministerial acts. Theclassic definition of the scope of the writ is that of Atkin L. J. inRex v. Electricity Commissioner when he said that :
“ Whenever a body or persons having legal auhority todetermine questions affecting the rights of subjects andhaving the duty to act judicially act in excess of their legalauthority, they are subject to the controlling jurisdiction ofthe King’s Bench Division ”.
This decision has been consistently followed by the Courts.It is absolutely essential that the person or body to whom thesewrits are to go must be a judicial body in the sense that it hasthe power to determine and decide questions affecting the rightsof subjects. That this requirement is fundamental has beenemphasised in the leading cases of Naklcuda Ali v. M. F. S.Jayaratne, 51 N.L.R. 457 and Ridge v. Baldwin (1963) 2 A.E.R. 66.The primary condition for the issue of these writs is that thebody in question must be capable of giving a definitive orderconclusive and binding without confirmation by any otherauthority. Certiorari has been refused for instance, to quasha report of hospital visitors to the Board of Control that a personought to be kept in detention as a mental defective—R. vs. St.Lawrence’s Hospital (1953) 1 W.L.R. 1158. The Court there heldthat the visitors were not a tribunal and had no power to givea decision. In the course of his judgment Lord Goddard statedthat, “ The visitors have to form an opinion and report to theBoard and this report is intended for the guidance of the Boardin considering whether the Board is going to make an order forthe detention of the patient under this Act. I have never heard ofa case in which the Court has ever granted certiorari to bringup a report and it is abundantly clear tht the visitors are nota body to whom certiorari will lie in this respect because theyhave no power to come to a decision ”. The visitors were clearlynot performing a judicial function in making their report. Thusa body exercising powers which are of a merely advisory,deliberative, investigatory or conciliatory character or which do
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not have legal effect until confirmed by another body or involveonly the making of a preliminary decision will not be amenable toa writ of certiorari. By its judgment reported in Jayawardena vs.Silva. 73 N.L.R. 289 the Privy Council while affirming thejudgment of this Court reported in 72 N.L.R. 25 held that thefunctions of the Principal Collector of Customs under Section 130of the Customs Ordinance (chapter 235) were to decide as apreliminary matter whether an offence has been committed,whether the appellant was concerned in it and whether he shouldexercise his discretion to impose a forfeiture or a penalty, andsince his was a preliminary decision which only became enforce-able when and if the Attorney-General took proceedings underSection 145 of the Customs Ordinance and the Court decidedagainst the appellant, it could not be said at that stage that the'Collector had made any determination or decision which can bedescribed as quasi-judicial and that accordingly writ of certioraridid not lie to quash the order of forfeiture. Thus it would appearthat a person conducting an inquiry culminating in nothingmore than an advisory report or recommendation is hardlymaking a determination of a question affecting the rights ofsubjects^ However, if the report or recommendations form anintegral and necessary part of a statutory process or schemewhich may terminate in action adverse or prejudicial to therights or interests of individuals the writ of prohibiton orcertiorari will lie against it. In the case of Rex vs. ElectricityCommissioners (1924) 1 K.B. 171 the Commissioners were prohi-bited from proceeding with an inquiry into a matter outside theirprovince, in spite of the fact that no scheme that the Commis-sioners were empowered to make could take effect untilconfirmed by the Minister of Transport and then approved byboth Houses of Parliament. In objecting to the issue of prohibi-tion the Attorney-General contended that the Commissionerscame to no decision at all and that they acted as advisers andmerely recommended an order embodying a scheme to theMinister of Transport who might confirm it with or withoutmodification and then the Minister had to submit the orderso confirmed or modified by him to the Houses of Parliamentwhich may approve it with or without modifications and thatuntil the order is so approved nothing is decided. Atkin L. J.in rejecting that argument said : “In the provision that the finaldecision of the Commissioners is not to be operative until it hasbeen approved by the two Houses of Parliament I find nothinginconsistent with the view that in arriving at that decision the*Commissioners themselves are to act judicially and within the-limits prescribed by Act of Parliament and that the Courts havepowers to keep them within those limits. It is to be noted that
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it is the order of the Commissioners that eventually takes effect ;neither the Minister of Transport who confirms, nor the Housesof Parliament who approve can, under the statute, make an orderwhich, in respect of matters in question, has any operation. Iknow of no authority which compels me to hold that a proceed-ing cannot be a judicial proceeding subject to prohibition orcertiorari because it is subject to confirmation or approval evenwhere the approval has to be that of both Houses of Parliament ”.The Privy Council in Estates and Trust Agencies Ltd. v. Singa-pore Improvement Trust (1937) A.C. 898 at 917 has quoted withapproval that statement of the law that : “ a proceeding is nonethe less a judicial proceeding subject to prohibition or certioraribecause it is subject to confirmation or approval by some otherauthority. ”
In R. vs. Boycott ex parte Keasley (1939) 2 A. E. R. 626, thequashable order took the form of a medical certificate describinga boy as an imbecile within the meaning of the Mental DeficiencyAct of 1913. In resisting the argument that the decision of themedical officer embodied in that certificate was an administrativeact and not a judicial act, Humphreys, J. at page 632 stated that :“ that document, in my opinion, was a document of the highestpossible importance in the life of this lad of 11 years of age. Itpurported to class him as an imbecile within the meaning of thatterm as used in the Mental Deficiency Act 1913. It was in factone of the steps necessary in his case, and was intended to bean early stage in a chain of circumstances which would ultimatelyresult in an order being made in regard to that boy underSection 6 of the Act, an order which would be made truly by ajudicial authority, and the order would be one ordering thatchild to be sent to an institution In deciding whether in makinghis report in terms of the Commission issued to him the respon-dent was acting judicially, the test appears to be whetheraccording to the statutory scheme the report has the probabilityor potentiality in law of affecting prejudicially the rights ofindividuals, by reason of the statutory scheme itself making itpossible for the report to be the basis of action affecting therights of any person. If the report is not a step in a process whichin law may have the effect of affecting the legal rights orliabilities of a person to whom it relates, then the remedy of awrit is not available, as then the duty to act judicially is wanting.Counsel for the petitioner relied heavily on the case of R. Vs.Criminal Inquiries Compensation Board ex parte, Lain (1967) 2A. E. R. 770 in support of his proposition that as the respondent’sreport in fact was responsible for his employer i.e. the FisheriesCorporation terminating the services of the petitioner, and itthus affected him adversely he was entitled to a writ of certiorariquashing the respondent’s report. In that case, a Criminal
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Inquiries Compensation Board which was required to follow ajudicial type of procedure and to apply legal norms or standardswas appointed under the prerogative of the Crown to determineclaims for compensation. It was held there that though a claimanthad no legally enforceable right to any compensation he wasentitled to obtain certiorari to quash a determination of theBoard if the proceedings or determination were tainted by defectsthat would warrant the issue of certiorari to quash adetermination of a statutory tribunal. In determining whatcompensation if any was to be awarded to an applicant theBoard was held to be performing a quasi-judicial functionaffecting the public, lawful authority for which was derived fromthe prerogative and not from statute. The determination of theBoard was held to affect the legal rights and liabilities of personsto whom it related. In that case Ashworth, J, wanted to introducea gloss on the well known definition (which I have quoted earlier)of Atkin L. J. in R. vs. Electricity Commissioners (1924) 1 K. B.at 205, by omitting the words “ the rights of ” so that the phrasein which these words occur would read “ questions affectingsubjects Petitioner’s Counsel invited me to accept the amend-ment suggested by Ashworth, J. It is to be noted that the othertwo judges i.e. Lord Parker and Diplock L. J. did not associatethemselves with Ashworth, J. in the suggested revision but wentinto the question whether the rights of subjects, predicated inAtkin L. J.’s definition were legally enforceable or justiciablerights or not. Ashworth J. has not analysed the necessity for thesuggested alteration of a definition which has been approved in itsentirety by the House of Lords, the Privy Council, and by ourSupreme Court. In my view the suggested amendment is notwarranted in law. Though on the facts of this case it could besaid that the report of the respondent has untowardly affected thepetitioner, an examination of the provisions of the Commissionsof Inquiry Act (Chapter 395) does not show that the report of theCommissioner was intended to be a step in a process which mayin law have the effect of altering the legal rights or liabilitiesof persons named in that report. The only power that theCommissioner has is to inquire and make a report and embodytherein his recommendations. He has no power of adjudication inthe sense of passing an order which can be enforced propriavigore, nor does he make a judicial decision. The report of therespondent has no binding force ; it is not a step in consequenceof which legally enforceable rights may be createdor extinguished. It is left to the discretion of the Governor-General to act or not on the recommendations contained in it.The inquiry held by the respondent is not a judicial inquiry and
!•••—A 22803 (9/70)
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does not eventuate in anything in the nature of a judicialdetermination. His report will not be evidence in any Court orTribunal of the existence of any fact mentioned in it. The wholeprocess begins .and ends with the inquiry and report. Therespondent has no legal authority to determine questionsaffecting the rights of individuals and hence was not exercisingjudicial or quasi-judicial functions ; the judicial element whichmust be present before he can be subjected to the supervisoryjurisdiction of this court through the writ of certiorari is lacking.Hence this application cannot be sustained. The petitioner willhave to seek the appropriate remedy in another forum to havehis grievance ventilated.
What I have said so far is sufficient to dispose of thisapplication ; but I am constrained to add that while there maybe no duty to act judicially, it does not follow that there is noduty to act fairly by observing the principles of natural justice.It is true that the Commissioner is not a Court of Law andproceedings before him are not judicial or quasi-judicial for hedecides or determines nothing. But as was said by Lord Denningin R. vs. Pergamon Press Ltd., (1970) 3 A. E. R. 535 at 539, withreference to the report, under the provisions of section 165 of theEnglish Companies Act of 1948, of inspectors the proceedingsbefore-whom were only administrative and not judicial or quasi-judicial, in that they only investigate and report. “ But this shouldnot lead us to minimise the significance of their task. They haveto make a report which may have wide repercussions. They maymake findings of fact which are very damaging to those whomthey name. They may accuse some ; they may condemn others.They may ruin reputations or careers. Seeing that their workand their report may lead to such consequences I am clearly ofopinion that they must act fairly These observations areapposite to the report of a Commissioner appointed under theCommissions of Inquiry, Act. He must come to his conclusions bya process consistent with rules of natural justice after informingthe party of the case against him. The aim of the rules of naturaljustice is to secure justice or to put it negatively to prevent amiscarriage of justice. If the purpose of the rules of naturaljustice is to prevent miscarriage of justice, it cannot beappreciated why these rules should not apply to administrativeinquiries. Arriving at a just decision is the aim of all inquiries,of whatever nature. An unjust decision in an administrativeinquiry in the context of a welfare state may have greater far-reaching effect than a decision in a quasi-judicial inquiry. Beforehe condemns or criticises a person the Commissioner who isappointed to investigate an alleged public scandal or for any ofthe purposes set out in Section 2 of the Commission of Inquiries
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Act, should act fairly and give the party against whom he pro-poses to make a report a fair opportunity of correcting or con-tradicting what is said against him. The purpose of the benefit oflegal representation vouched by section 16 of the Act to a partyimplicated in the inquiry will be rendered nugatory if this ele-mentary principle of natural justice * audi alteram partem ’ isnot observed. From the provision of Section 16 stipulating legalrepresentation, an obligation to act with fairness can be implied.Further, the concept of rule of law would lose its vitality if theagencies of the State are not charged with the duty of discharg-ing their functions in a fair and just manner. The concept of aduty to act fairly irrespective of whether the body is acting judi-cially or quasi-judicially or administratively has been stressed inrecent decisions of the Courts in England. Lord Parker C. J. inR. vs. H. K. (an infant) (1967) 1 A.E.R. 226 at 231 enunciated thatprinciple as follows —
“ Even if an immigration officer is not acting in a judicialor quasi-judicial capacity he must, at any rate, give the immi-grant an opportunity of satisfying of the matters in the sub-section and for that purpose, let the immigrant know whathis immediate impression is, so that the immigrant can dis-abuse him. That is not, as I see it, a question of acting orbeing required to act judicially, but of being required to actfairly. Good, administration and an honest or bona fide deci-sion must, as it seems to me reqiure not merely impartialitybut of acting fairly ”. In the same context Salmon L. J. saidat page 223 : “ the authorities in exercising these powers andmaking decisions must act fairly in accordance with theprinciples of natural justice ”.
Lord Denning in R■ vs. Gaming Board (1970) 2 A. E. R. at533 observed that :
“ At one time it was said that the principles of naturaljustice only apply to judicial proceedings and not to adminis-trative proceedings. That heresy was scotched in Ridge v.Baldwin (1964) A. C. 40 ”.
Lord Wilberforce and Phillimore L- J. agreed with thisproposition of Lord Denning M. R.
“ Natural justice is but fairness writ large and juridically.It has been described as ‘ fair play in action ’. Nor is it aleaven to be associated only with judicial or quasi-judicialoccasions ”.
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per Lord Morris in giving the majority judgment of the PrivyCouncil in Fumell v. Whangarai High Schools Board (1973)I A. E. R. 400 at 412, In his dissenting judgment with which LordReid agreed, Viscount Dilhorne was also of the same view (atpage 42).
“ It is not in this case necessary to decide whether thefunction of the sub-committee is to be described as judicial,quasi-judicial or administrative, but if it be administrative, itwas the duty of such committee before they condemned orcriticised the appellant to give him a fair opportunity ofcommenting or contradicting what is said against him ”.
These recent decisions have thus advanced the frontiers of natu-ral justice. To prevent abuse of power by administrative bodies,Courts are gradually evolving guidelines based on principles ofnatural justice for the just exercise of their power. Reason andjustice require that the person concerned against whom the Com-missioner may feel inclined to make an adverse report should beheard before a fiinding is reached against him.
Observance of principles of natural justice serves a two-foldpurpose. It satisfies the requirement of fairness and also helpsthe administrator or commissioner to take a better and moreinformed decision.
In the light of the above observations, in my opinion, the res-pondent has not acted fairly, according to law. He has failed togive the petitioner notice of the allegations against him and anopportunity of answering the case against him, before he reportedhim to the Governor-General. There was no due inquiry as far asthe petitioner was concerned and hence the report made by theRespondent against the" petitioner cannot have any value.
However as indicated in the earlier part of this judgment theremedy of certiorari cannot be availed of by the petitioner. Thepetitioner’s application for a writ of certiorari is refused. Therespondent will however not be entitled, in the circumstances toany costs.
Tennekoon, C.J.—I agree.
Perera, J.—I agree.
Application dismissed.