(1043) 2 A. E. It. 546.* (1047) 1 A. E. It. Sol.
of by executive action alone.- The allegation, he said, was an extremelyserious one which affected not only the plaintiff but also the reputation ofthe University and “ a formal inquiry ” was necessary so that t-lie publicmay be satisfied and because if there had been a leakage from the Uni-versity-it was his duty to'report it to the University Council fordisciplinary action:Sir. Weerasooria who appeared for the jjlaintiff
stated fromtheBar, and it was not contradicted by learned counsel for thedefendant, that as long as the order of suspension against the plaintiffstood he would be precluded from continuing his academic career notonly at the University of Ceylon but also at any other university.
As observed by Lord Atkin in General Medical Council v. Spackman,xin the absence of specific provision in that behalf, the procedure to bc-followed by bodies which are not strictly judicial bodies would necessarilyvary with the kind of case which they are called upon to investigate.His observation's imply that where the matter' to be investigated is anallegation of a grave nature wlrich, if made out, would have serious conse-quences affecting the legal rights of the person whose conduct is called intoquestion, a more strict procedure than otherwise is to be insisted on.In the present case, having regard to all the circumstances, it seems tome that the question of the truth or falsity of the allegation against thoplaintiff could not fairly be determined except by the application of thejudicial process or a form of procedure closely analogous to it. To adoptthe dictum of Parker, J., in Rex v. Manchester Legal Aid Committee. ExParle Brand and Co., Ltd., 3 the Vice-Chancellor or the committee ofinquiry had to decide the matter “ solely on the facts of the particularcase, solely on the evidence before them and apart from any extraneousconsiderations. In other words, they must act judicially …. ”
Parker, J~., also pointed out in that case that “ the duty to act judiciallymay arise in widely different circumstances which it would be impossible,and indeed, inadvisable, to attempt to define exhaustively
Mr. Weerasooria drew our attention to two decisions of long standingauthority where it has been held that even purely dozuostic tribunalssuch as committees of clubs, which under the rules have the power toexpel a member on the ground of misconduct, are under a duty to actjudicially in the exercise of such power! In Fisher v. Keane 3, althoughthe decision proceeded ou the failure of the committee of a club to followthe rules governing the expulsion of a member, Jessel M. R. observed thata committee functioning on such an occasion must act according to theordinary principles of justice and should not convict a man of a graveoffence which shall warrant his expulsion from the club without fair,adequate and sufficient notice and an opportunity of meeting tlie accu-sations brought against him. In the leading case -of Lahouchcrc v. TheEarl of Wharncliffe 4 power was given under the rules to the committeeof a club to take certain action towards the expulsion of" a member if“ in the opinion of the committee ” such action was called for. It wasclearly state.d by the Court that although it had nothing to do with 'the
*[1879) 11 Ch. D. 353.* [1879) 13 Ch. D. 346.
-o. or/ at oss.
* [1952) 1 A. E. B.480 at 490.
question whether the judgment of the committee, having the facts fullybefore them, might be right or wrong, it was, nevertheless, concerned■whether the accused had been given fair notice and due inquiry had "beenmade. Wo authority was cited to us where the correctness of thesedecisions was questioned. It seems to mo that these decisions do indicatethat the committee of a club function as a quasi-judicial tribunal whenproceeding under the rules against a member of the club for allegedmisconduct.
Two other cases cited by Mr. Weerasooria show to what extentthe Courts in England have gone in holding that decisions of purely ad-ministrative bodies come within the range of the jurisdiction of the Courtin certiorari. These are Hex v. Boycott and others. Ex parte Keasley x, andThe King v. Postmaster-General. Ex parte Carmichael . In the lattercaso Lord Ilewart C.J. expressed the opinion that the certificate of amedical officer, issued under certain statutory provisions and relatingto the question whether the person to whom the certificate referred wassuffering from a particular disability or not, was of the nature of a judicialact and a fit subject for certiorari. But it is not necessary, I think, thatfor the purpose of the present case I need to rety on these cases.
While neither the Vice-Chancellor nor the Board of Residence andDiscipline can be regarded as purely domestic tribunals they woidd, never-theless, be statutory bodies inasmuch as they are constituted under theprovisions of the Cejdon University Ordinance, No. 20 of 1942. But Ido not see any reason why the same considerations should not be appli-cable to statutory bodies as well when functioning in similar circumstancesas domestic tribunals.
In the present case an inquiry was necessary in order to decide on thetruth of the allegation against the plaintiff. The legal rights of the plain-tiff were involved. No question of policy or expedienC3r arose. I wouldhold, therefore, that the Vice-Chancellor was under a dut3r to act judi-cially when he investigated the allegation and reported on it to the Boardof Residence and Discipline. In my opinion the learned trial Judge cameto a wrong conclusion on this question. I also hold, for the reasons alreadystated by me, that the investigation of the Vice-Chancellor was not madein accordance with the principles of natural justice and is nob, therefore,valid for the puxposes of any action which the Vice-Chancellor could havetaken under section S of Part I of Chapter VIII of the General Act No. 1.
With regard to the Board of Residence and Discipline, the positionwould appear, however, to be different. Even in the circumstances ofthis case no inquiry into the allegation against the plaintiff need havebeen made by the Board in taking action under section 14 of Part I ofChapter Vllt of the General Act No. I, as all that the section requiresis that there should be before the Board a report (in this instance from theVice-phancellor). The Board was under no dutj' even to inquire on’
s (102S) 1 K. B. D. 201.
what material the Vice-Chancellor arrived at any finding contained in thereport." In any event, they were entitled to assume that the report hadbeen made after due inquiry. The decision taken by the Board .undersection 14 in this particular case cannot be regarded as anything morethan a purely administrative or executive one. In'arriving at that de-cision there was no duty imposed on the Board, therefore, to act judicially,although different considerations mjght have arisen had the Board toodecided to hold an independent inquiry into the allegation against theplaintiff. This view does not, however, conclude the matter.
Mr. Choksy conceded that even though the acts of the Board of Resi-dence and Discipline under section 14 be of a purely administrative orexecutive nature, they could, nevertheless, be set aside by the Courts inappropriate proceedings where they are shown to have been performedwithout jurisdiction or in excess of jurisdiction as, for example, wherethe conditions prescribed for the performance of the acts had not beensatisfied. The principle on which the Courts will intervene in a purelyadministrative decision lias been explained in Lee v. The Showmen’s Guildof Great Britain 1. See also, In re Bracegirdle. 2 When one looks atsection 14, it is clear that the only condition precedent for the Boardtaking any action under it is that there should be a valid report beforethe Board. If in the present case the Board acted without any reportat all, or on a report purporting to be by the Vice-Chancellor but whichsubsequently turned out not to have been made by him, the decision ofthe Board, however bona fide arrived at, cannot be supported as havingany legal effect. So also a report made by the Vice-Chancellor but with-out due inquiry (having regard to the duty imposed on him to act judi-cially) cannot be regarded as a valid report for the purpose of enablingthe Board to take action under section 14.
Rad the present proceedings been by way of certiorari the plaintiffwould undoubtedly have been entitled (assuming that the conclusionsreached by me are sound) to an order quashing the report of the Vice-Chancellor. But Jlr. Choksy contended that this action was wholly mis-conceived and that it is not open to the District Court, nor.equally to thisCourt sitting in appeal, to grant the relief asked for in the prayer in theplaint. His argument on the point was twofold : firstly, that such reliefas the -plaintiff claims can be obtained only on an application in thefirst instance to this Court by way of certiorari and, secondly, that as noright of appeal has been granted from the finding of the Vice-Chancelloror the decisipn of the Board of Residence and Discipline under, sections 8and 14 respectively of Parti of Chapter -VOT of the. General Act ISTo. 1, ■the District Court has no jurisdiction, in any. event, to entertain such anaction ns this..
In England the jurisdiction to issue "writs of certiorari is exclusively inthe Queen's Bench’Division.' But there are numerous instancesO^Jierethe validity of orders, for the quashing of which a writ of cerliora fytw<£"^'1
* {1952) 2 Q.B. D. 329.
3[{1937) 39 N. r,. R.
have issued, has been successfully challenged by proceedings for a decla-ration and injunction instituted in the Queen’s Bench Division or theChancery Division. Two such instances’ are Fisher v. Keane (supra) andLabouchere v. The Earl of Wharncliffe (supra), both being cases where aninjunction was applied for in the Chancery Division to restrain thecommittees of certain clubs, which had made orders of expulsion of theplaintiffs from the clubs on the ground of misconduct, from interfering withthe plaintiffs’ enjoyment of the use and benefit of the clubs. Bothactions were brought on the basis that the orders of expulsion were nulland void, and the injunctions applied for were granted. If I am right inthe view expressed earlier by me as to the effect of the decisions in thosecases, the orders which were impugned could have been quashed by writof certiorari, but it .does not seem to have been even argued that thealternative remedy of an injunction was not available to the plaintiffs.In Barnard and Others v. National Dock Labour Board and Others1, whichwas an action filed in the Queen’s Bench Division for a declaration that anorder of suspension made by a statutory board was unlawful, the pointwas specifically taken that the only way in which the decisions of the boa rdcould be questioned was by writ of certiorari. The Court of Appeal re-jected this contention and granted the declaration. It should be stated,however, that in that case the Court took the view that proceedings byway of certiorari would not have been open to the plaintiffs as the illegalitywhich vitiated the decision of the Board came to light long after the timefor the writ had ran.-
In the present case, too, it would seem that against the purely adminis-trative or executive decision (as held by me) of the Board of Residenceand Discipline suspending tlm plaintiff indefinitely from all Universityexaminations, the remedy of certiorari is not available to him. If, there-fore, any legal remedy be open to him at all it would be by way of anaction for a declaration that the decision of the Board is null and void.Plaintiff’s substantial grievance arises out of this decision. With regardto Mr. Choksy’s submission that even this remedy is not available to theplaintiff inasmuch as no appeal from the decision of the Board lies, thepoint was considered in Barnard and Others v. National Dock Labour Boardand Others (supra), thedecision in which is against Mr. Choksy. Thejudg-ment of Dol'd Justice Denning in that case as well as the authorities citedby him clearly show that, particularly where the remedy by certiorarimay not be available, the Courts will intervene by declaration and injunc-tion notwithstanding the absence of a right of appeal. Moreover, if, forthe reasons stated by me, the report PU is not a valid report, the decisionof the Board in actingon it would be in excess of the jurisdiction conferredon the Board under section 14 ; and it is well settled law that anon-appealable order made without, or in excess of, jurisdiction has notthe conclusive effect which the legislature may have intended when itwithheld the right of appeal.
On the basis that the decision of the Board is invalid, a cause of actionns defined in secton .5. of the Civil Procedure Code would clearly have
i {1053) 2 Q. B. D. IS,
TOC o "1-5" h z
Sockalingam Chettiar v. Commissioner foe Registration oj'j283
' Indian and Pakistani Residents.
" _ *
accrued to the plaintiff to obtain the declaration claimed in these pro-ceedings and in my opinion the learned trial Judge was wrong whenhe held that the District Court had no jurisdiction to entertain this action.
The judgment and decree appealed from are set aside and decree willbe entered declaring that—
the finding of the committee of inquiry contained in thereport Pll..
and (ii) the decision of the Board of Residence and Discipline suspen-ding the plaintiff indefinitely from all University examinations
are null and .void and of no legal effect. The plaintiff will be entitled tohis costs both here and in the Court below.
T. S. FERJJ-AifDO, J.—I agree.
Appeal alloioed.
1 (1041) 4S N. L. It. 441.* (104 J) 42 A7. L. It. 197.