067-NLR-NLR-V-58-E.-F.-W.-FERNANDO-Appellant-and-THE-UNIVERSITY-OF-CEYLON-Respondent.pdf
Present :Weerasooriya, J., and T. S. Feranando, J.E. F. W. FERNANDO, Appellant, and THEUNIVERSITY OF CEYEON, EospoiulontS. C. 559—D. C. Colombo, 2S.900
University of Ceylon—High! of student to sit for examinations—Misconduct of student—Scope of the powers of the Vice-Chancellor and Board- of Discipline to investigateand punish— Remedy when the Vice-Chancellor and Hoard act in excess ojjurisdiction—“ Judicial act ”—natural Justice—Scope of certiorari pro-ceedings— Jurisdiction of District Court—Ceylon University Ordinance, Ho.20 of 1042, ss. G (6), 32—General Act Ho. 1, Chapter S, Part I, ss. S, 14, 17.
■Vhen a purely ndministrativo decision is taken against a party on tho basisof an invalid report made by a person wlio has legal authority to determinejudicially or quasi-judicially a question affecting a legal right of that party, thoparty affected by the administrative decision is entitled to claim relief by wayof regular action, notwithstanding the absence of a right of appeal.
Thoplaiutiff, who was a candidate at the final examination in science held bytho University of Ceylon, instituted this action against tho University claimingthat the finding of tho Vice-Chancellor (assisted by a committee of inquiry)that the plaintiff had acquired knowledge of the nature or substance of one oftho Question Papers before tho dato of tho examination, and tho decision ofthe Board of Residence and Discipline suspending tho plaintiff indefinitelyfrom all examinations of tho University, bo declared null and void. TheVice-Chancellor and tho Board of Residenco and Discipline had purportedto act under sections S and If respectively of Part X of Chapter S of tho GeneralAct No. 1 passed under tho Ceylon University Ordinance, No. 20 of 1942.Section S providcs-tliat where tho Vice-Chancellor is satisfied that any candidatefor an examination has acquired knowledge of tho nature or substance of anyquestion or tho content of any jjaper before the date and time of tho examinationho may suspend the candidate from the examination or remove his namefrom the pass list, and shall report tho matter to tho Board of Residence andDiscipline for such further action as tho Board may decide to take. Section14 deals with tho powers of tho Board on such a report being received. Oneof them is to suspend tho candidate indefinitely from any Universityexamination.
The aforementioned committee of inquiry had been appointed by tho Vice-Chancellor in order to assist him in his investigation, and consisted of thoVice-Chancellor himself and two other members. At the chief sitting of thocommittee, tho plaintiff was afforded no opportunity at any stago of cross-examining the witnesses who had testified against him, nor was oven the gistof their evidence communicated to him. Tho plaintiff was tho last person tobo questioned at that sitting. No record of tho proceedings was kept by thocommittee. Tho plaintiff had not been furnished sufficient particulars of thocaso he had to meet-, nor was ho at any timo afforded an opportunity ofexplaining tho allegedly suspicious features of a document which was producedat the inquiry.
Held, (i) that tho action of the Vice-Chancellor in appointing a committee ofinquiry (of which ho himself was a member) to assist him in his investigationwas not an improper delegation of his functions in contravention of sections Sand 17 of Part I of Chapter S of tho General Act No. 1.
that, subject to the powers conferred on tho Vice-Chancellor and theBoard of Residence and Discipline under sections S and 14 of Part I of Chapter 8of tho General Act No. I, n student of tho University of Ceylon has a legal right
12LYIII
2J. N. B 61132—1,503 (2/57)
lo sit for any examination "held by the University provided ho satisfies tlioqualifying conditions prescribed by the Statutes, Acts and Regulations passedunder the Ceylon University Ordinance. ''
that, inasmuch r.s the legal lights of the plaintiff were involved and no
question of policy or expediency arose, tho Vice-Chancellor was under a dutyto act judicially when ho investigated the allegation against the plaintiff andreported on it to the Board of Residence and Discipline. Tho words “wlicrotho Vice-Chancellor is satisfied … ” in section 8 of Part I of Chapter S
of tho General ActXo. 1 did not detract from the duty of tho Vice-Chancellorto act judicially or quasi-jiulicially when proceeding under that section.
In tho absence of specific provision in that behalf, the procedure to be followedby bodies which are not strictly judicial bodies vary with tho kind of caso whichthey aro called upon to investigate. Where tho matter to be investigated is anallegation of a grave nature which, if made out., would have serious consequencesnlfccting the legal rights of tho person whose conduct is called into question,n more strict- procedure than otherwise is to be insisted on. In tho present' case, having regard to all the circumstances, tho question of tho truth or falsity' of the allegation against the plaintiff could not fairly bo determined except bytho application of the judicial process or a form of procedure closely analogousto it.
that the investigation of tho Vice-Chancellor was not made in accordancewith the principles of natural justice and was not, therefore, valid for thopurposes of any action which the Vice-Chancellor coulcl have taken under sectionS of Part I of Chapter S of the General Act Kb. 1.
{v) that the decision which tho Board of Residence and Discipline purportedto take under section 14 of Part I of Chapter 8 of the General Act Ko. 1 ditlnot have any legal effect inasmuch as the report made by tho Vice-Chancellorwithout due inquiry (having regard to tho duty imposed on him to act judicially)could not bo regarded ns a valid report for the purpose ofenabiing (he Board ofResidence and Discipline to tako action.
(vi) that the proper remedy or the plaintiff against the decision of the Boardor Resilience and Discipline was not by way of certiorari proceedings but byway of an action for a declaration that tho decision of the Board was null amivoid.
■i^LPPBAL. from a judgment of tho District Court, Colombo.
_Ar. E. IYccrasooria, Q. C., with 1)'tiller Jayatcardcne and Barnes BaUcalicfor tho plaintifF-appellant.
J. tie Saram and Miss M.Cur. adv. ltd/.
iV. K. Choksy, Q. C., with J. Kadir/janiar,Scncviralnc, for tho defendant-respondent.
November 2S, 19.115. Weerasoohiva, J.—
Tliis is an appeal by the plaintiff from tho judgment- and decree of thoDistrict- Court of Colombo dismissing tho action instituted by him againstllio University of Ceylon, as tlie defendant. The 'substantial reliefclaimed in the action is a declaration that tho finding of a committee ofinquiry that.the plaintiff acquired knowledge of the nature or substanceof a passage in German in Zoology Paper V before the date and time of thoexamination, and tho decision of the Board of l’esidcnc'o and Disciplineof tho University of Ceylon suspending him indefinitely from allexaminations of the University be declared mill and void.
Tiio judgment of the learned .District Judge so.ts out tho relevant fuels' of tlio case, but it would bo necessary to refer to some of them again inthis judgment. Tho final examination for the degree of Bachelor ofScionco of the University of G'oylon at which the plaintiff was a candidatetook place in tho months of 3lurch and April, 1952. The plaintiff offeredhimself for examination in Zoology as his special subject and Botany as asubsidiarv subject in accordance with the provisions of tho General ActXo. 1 made tinder the Ceylon University Ordinance, Xo. 20 of 1942. Theexamination in Zoology consisted of five papers in theory and three inpractical work. There .was also one paper in Botanj-. Tho examinationin the last theory paper in Zoology (Pajier V) was held on the 4th April,1952.P.3 is a copy of this paper. It is in two parts, the first consisting
of an essay and the second of a passage in F reneh or German ono of whichhad to be translated into English and commented on. The maximummarks for tho essay was 90 and for the translation and comments 10,and this allocation was known to the candidates prior to tho examination.There is no evidence that out of t he 10 marks assigned for the translationand comments a candidate was recjuired to obtain any specified minimumin order to secure a pass, or become eligible for a first or second class(denoted by the letters A and 13 respectively) in Paper V. Tho plaintiffactually obtained an A in that paper, having scored a total of 90 markswhich included 8 out of the maximum of 10 marks for his translat ion of,and comments on, tho Gorman passage (which was the passage selectedby him). On his marks in this and tho other papers the plaintiff c-amo aneasy first in order of merit among (lie Candida, tes offering the same subjectsat the examination, and in the normal course he would have been entitledto tho degree of .Bachelor of Science with First Class Honours. Of thowitnesses called at the trial Ur. Hilary Crnsz, a lecturer in Zoology at theUniversity, who appears to have had opportunities of forming anestimate of the plaintiff’s ability, described him as a brilliant student.
One of the candidates at the examination who offered the same subjectsas the plaintiff was a Miss Balasingham who is the sister-in-law of Mr.Sivaprakasapillai, a lecturer in the Engineering Faculty of the University.Shortly after the examination in the paper P3 Miss Balasingham appearsto have conveyed certain information to Mr. Sivaprakasapillai which heconsidered it his duty to communicate (though he did not do so imme-diately) to the Vice-Chancellor of the University, Sir Ivor Jennings.The information related to tho possibility of the plaintiff having badprior knowledge of the German passage set for translation and commentsin P3. But before that information reached Sir Ivor Jennings he hadalready received similar information from Mr. Kirthisinghc, the seniorlecturer in Zoology, and also the examiner who had marked that part ofthe answer script- submitted by the plaintiff on the German passage in P3.
Under tho Ceylon University Ordinance, Xo. 20 of 1942, tho Vice- tChancellor is the princii>al executive officer of the University anil it is his -duty to see that t-hc provisions of the Ordinance and of the Statutes,Ac-ts "and Regulations made thereunder arc duly observed, and he isgiven suchpower as ho may deem necessary to exercise for that purpose. Section Sof Part I of Chapter ATI I of tho General Act Xo. 1 provides that wheretho ATcc-Chancellor is satisfied that any candidate for an examination
268WKERASOORIYA, j.—Fernando i>. The University of Ceylon
has acquired knowledge of tlic nature or substance of any question orthe content of any paper before the date and time of the examination homay suspond the candidate -from t-ho examination or removo his namefrom the pass list, and shall report t-ho matter to the Board of Residenceand Discipline for such further action as the Board may decide to take.Section 14 deals with tho powers of the Board on such a report beingrocoivod. Ono of them is to suspend tho candidate indefinitely fromany Univorsity examination. It will bo noted that tho Board isempowered to act on the basis of tho report, without making any furtherinquiry. The Vice-Chancellor is an e.r officio member of tho Board.
The Vice-Chancellor, having considered the information which hereceived, decided to investigate the mattor further and for that purposelie appointed a committee of inquiry consisting of himself, Mr. A. E.Kcimcman who is a member of the University Council and ProfessorMailvagana-m, Dean of the Faculty of Science. Besides other claims thattho Vice-Chancellor Sir Ivor Jennings has to eminence it maj*- be statedthat ho is a Queen’s Counsel of the English Bar. Mr. Koimcman is aQueen’s Counsel of the Ceylon Bar and a retired Judge of this Court.There can be no doubt that all the gentlemen who comprised the eom-mitteo wore exceptionally suited, by reason of their qualifications andexperience, to conduct an inquiry of this nature. That Professor Mail-vaganam was a member of the committee was criticised by learned counselwho .appeared for tho plaintiff at the hearing of the appeal on the groundof his somewhat distant relationship to Miss Balasingham and Mr.Sivaprakasapillai and also that he was a member of the Board ofExaminers, as well as of the Scrutinising Committee the functions ofwhich wore to modify the questions set for tho examinations and ifnecessary refer them back to tho examiners for re-consideration. I amunable to say that there is any substance whatever in this criticism.
On tho 16th May, 1952, that is to say, several weeks after the exami-nation in paper P3 had been held (being tho last of tho papers which theplaintiff was called upon to answer) the Vice-Chancellor wroto to him tholetter P4 informing him of an allegation against him that he had acquiredprior knowledge of the content of one or more of the papers set for theexamination at which.the plaintiff had presented himself as a candidateand requesting him to attend at a sjiecified time and place before thecommittee of inquiry on the 21st May, 1952. The plaintiff has stated inovidonco at tho trial that when ho received this letter he had no idea atall as to the nature of the allegation against him except for %vhat was inthe letter, namely, that lie had acquired prior knowledge of t he contentof one or more of the examination papers. According to tho Vice-Chancellor the letter was so worded beeauso the information coining tohim from Miss Balasingham (who, apparently, had been questioned atthat stage) suggested the possibility of tho plaintiff having acquired priorknowledge of tho content of some of the papers in practical work too inaddition to knowledge of the German passage in P3. It would seem,however, that between tho dato of the despatch of tho letter and tho 21stMay the committee of inquiry had decided that tho evidence which MissBalasingham was in a position to adduce was quite insufficient to justifyan investigation into that 'part of her allegation which related . to
the plaintiff having acquired prior knowledge of the content of any paperin practical work. It may be assumed that tho members of the committeedid not consider that this decision reflected in any appreciable degreeon tho credibility of Miss Balasingliam in regard to the evidence that shewould giro on tho question whother the plaintiff had acquired prior know-ledge of the German passage in P3. It does not appear, however, thatthe plaintiff was at any stage iuformedthat tho matter to be investigatedbv the committee was restricted to that allegation alone, and it is' highly. probablo that throughout ho was under tho impression that the scopo oftho inquiry was as stated in P4, particularly as he was ‘questioned bythe committee about his practical examination as -well.
On tho 21st May, 1952, as notified in P4, tho committco of inquiryheld its first sitting. Miss Balasingliam appears to liavo been questionedas the first -witness. The next to bo questioned were Mr. Kirtliisinghoand Professor W. .Fernando, in that order. Professor Fernando is thohead of the Department of Zoology in the University and tho matomaluncle of tho plaintiff. He came into tho inquiry as tho German passagein P3 was selected by him as examiner, with tho approval of Sir.Kirthisinghe tho other examiner, from a book belonging to him whichwas kept under lock and key in his office. Sir Ivor Jennings stated inovideneo at tho trial that he was satisfied from his inquiries that thedrawer of the table in Professor Fernando's offico in which the bookwas kept had been locked, presumably at all material times. If therewas originally any suspicion that Professor Fernando had dishonestlyapprised the plaintiff, his nephew, of tho German passage that would boset for the examination, all I need say is that there is no evidoncopointing in that direction. Sir Ivor Jennings also stated in evidencethat there wero several possiblo sources of leakage of the content of anexamination paper and that although he and tlio other membors of thocommittco of inquiry ultimately were satisfied that tho nature or sub-stanco of tlio German passago in P3 had become known to the plaintiffprior to the examination, none of them could reach a definito conclusionas to the point at which the leakage occurred.
To resumo tho narrative as to what took place at the sitting of thocommittee of inquiry on tho 21st May, 1952, thewas tho last
person to bo questioned at that sitting. In his ovideneo at tho trial hesaid that his questioning by tho committee on that occasion did notlast more than half an hour but he admitted that at an early stage ho wasshown an exercise book, said to belong to Miss Balasingham and containingeight or nine German words, and he was asked whether ho had t-liosowords in any book of his prior to tho examination, which he deniod. Hoalso said that from the questions put to him. ho gathered that MissBalasingham had alleged that prior to tho examination she had copiedthose words into her book from a book belonging to him. The plaintiffwas next given the queston paper P3 with those same eight or nine words(which also occur in the German passago in that paper) underlined and howas asked to translate tho passago into English which, he says, ho didwithout difficulty but ho was stopped before ho had completed thotranslation. Ho was next put further questions with regard to his know-ledge of German and he replied that he studied German for t-Iireo years2*
at the University for the purpose of his course in Zoology. While thisthroe-year study of Gorman turned out to be nothing more than a weeklylecture of an hour’s duration at which Gorman passages on differenttopics in Zoology were given to the students for translation, it may beassumed that the instruction given in this particular branch was con-sidered by the University authorities to bo sufficient for the purpose forwhich it was intended. In tho absence of a 113' contra-indication thereseems to bo no reason, therefore, to think f hat in this branch of his studiestoo the plaintiff had not attained a proficiency comparable to t-hat-attainod by him in the other branches as shown bjr the marks which hescored in the rest of the examination.
. Tho report of the committee of inquiry, which is the document Pll,sets out in an amplified form tho allegation made b3r Miss Balasinghamus' to how slio came to copy the eight or nine German words into her-exorcise book. According to that report tho incident took place sonicwc-clcs prior to tho examination. Miss Balasingham said she suspectedfrom the plaintiff’s behaviour that there was something in one of hisnotebooks which he did not wish the other students to see. On oneoccasion (apparently in a moment of absent-mindedness quite in contrastto his previous vigilance) he had left- the book on a bench in the Zoologyresearch laboratory and had gone out when she seized the opportunityto glance through the book and saw a list of about thirty German words,in some cases until the English equivalents, of which words she copiednine into the exercise book produced by her. Of the other words shelater remembered that one was zitronensajl. Tho words which shecopied appear in the German passage in P3 in the same order in whichshe had copiod thorn into her book except for t he eighth and nint h words.Tho report Pll purports to reproduce the whole passage with the tenwords underlined. Actually 011I3- nine words have been underlinedincluding tho word zitronensajl which occurs at tho end of the passage.Tho plaintiff stated in evidence that on being questioned by 011c of themembers of tho committee as to the meaning of the v oi d zitronensajlhe gavo it as citronolla juice whereas the correct rendering appears tobo lemon juice. The observation may bo permitted that if tlie object-•of the plaintiff in having tho German words written in his exercise book,as: alleged by Miss Balasingham, was to acquaint himself with theirEnglish equivalents, it was hardl3' likely that he would not have been•able to give the correct rendering of the word zitronensajl when questionedbj: tho committee unless,of course, lie tried to make it appear t hat he wasunfamiliar with that word, but in that-ease it would have been a simplematter to ascertain how he had translated it in the answer scriptsubmitted by him at the examination.
Why the plaintiff should have written these German words in anexercise book .which he habitually took with him to tho Zoologylaboratory, or whj' Miss Balasingham should, several weens prior to theexamination, have copied them into her book, arc questions the answersto which do not appear in evidence in the cose…
• Tho full particulars of the allegation made by .Miss Balasingham, asset out in the report Pll, do not seem to have been made known to the2>laintiff either at the ■inquirj' on the 21st May or on the only other
-occasion when ho was questioned, namely, tho 3rd Juno, 1952. Tlioplaintiff was afforded no opportunity at any stage of cross-examiningMiss Balasingham, nor was even tho gist of her evidence communicatedto him. No record of tho proceedings was kept by tho committee, nordoes it appear that any member of it made notes of tho evidence adduced.According to iliss Salasingham, another student (Miss do Silva) wassitting next to her when siie copied the words from the plaintiff's book.JSliss do Silva denies that she saw the copying but admitted that MissBalasingham had subsequently, but before tho examination was held,told her about the list. Miss Balasingham also stated to the committeethat immediately after the examination she told some of the otherstudents about tho words which she had copied from the plaintifF’s book-and which she found in the German passage in P3, but only one of thosestudents when questioned by the committee appears to have corroboratedher on tho point. Tho substanco of the evidence given by those otherwitnesses who wero questioned (which evidenco was partly in favourof tho plaintiff and partly against him) was not communicated to him.Bvon with regard to tho only specific allegation of Miss Balasinghamwith which the plaintiff was confronted on tho dates on which ho wasquestioned by tho committee, namely, that she had copied eight or nineGorman words from a book in the plaintiff’s possession which words•occurred in tho German passago in P3, no particulars appear to havebeen furnished to tho plaintiff as regards the date, time or place of theincident. To put it shortly, tho plaintiff was, several weeks after theexamination, questioned about something which is alleged to have takenplace several weeks befoi’c tho examination and all the information givenhim was that these eight or nine Gorman words from a list which appeared:in a book belonging to him had boon copied by Miss Balasingham intoher book and that those identical words as underlined in the passageshown to him at tho inquiry before tho committee were to bo found in theGerman passago sot for the examination..
It is clear from the report Pll that the finding of the committee ofinquiry that tho plaintiff had acquired prior knowledge of the nature orsubstanco of tho German passage in P3 proceeded almost entirely from anacceptance of Miss Balasingham’s evidence. There can be no doubtthat on an acceptance of that evidenco tho Vice-Chancellor would havohad ample ground to bo satisfied that the plaintiff had improperlyacquired that knowledge and to have reported tho matter to tho Board-of Residence and Discipline for further action. It is also clear that tho"Board of Residence and Discipline in deciding to suspend the plaintiffindefinitely from all examinations of tho University acted (as the Boardwas entitled to do) on the basis of the report of the committee withoutholding any independent inquiry. Iii the normal course tho matterwould have been finally concluded on tho Board of Resideneo and Dis-cipline giving their decision as thero is no provison for an appeal from thatdecision cit her to any other authority of tho University or a Court of law."The case for the plaintiff, however, is that in holding tho inquiry thocommittee collectively or tho Vice-Chancollor alone (if he is to be"regardedas tho person who held the inquiry) was performing a quasi-judicialfunction and under a duty to conduct it in accordance with the principles
of natural justice and that as these principles were disregarded the plaintiffis entitled to a declaration in these proceedings that the finding of thecommittee of inquiry or of tho Vice-Chancellor, as the case may be, andtho decision of tho Board of Residence and Discipline are null and voidand of no legal effect.
One of the reasons stated in tho report Pll for accepting the evidenceof Miss Balasingham is that she was ablo to describe tho incident allegedby her “ with a wealth of circumstantial detail, of no direct relevance tothe story as such, which carried conviction Although “the wealth ofcircumstantial detail ” given by Miss Balasingham was not directlyrelevant to her story the committee of inquiry did consider it relevantfor the purposo of testing Miss Balasingliam’s credibility, but nowherein the report is it stated what this circumstantial detail consisted ofnor was it communicated to the plaintiff.
It appears that some timo after the first sitting of the committee ofinquiry (on the 21st May, 1952) Miss Balasingham was further questionedregarding the exorcise book said to belong to the plaintiff and from whichslio alleged she had copied the German words. She then describedthat book as one with a blueish cover and of the same size as a Universityexercise book. The plaintiff was thereupon requested by the Vice-Chancellor, by his letter P5 dated tho 28th May, 1952, to appear beforethe committee again on the 3rd Juno, 1952, and to bring with him alltho exercise books which he had used during his course. The plaintiffduly appeared before the committee on the 3rd June, 1952, and producedonly one exercise book. This was a University exercise book which theplaintiff had obtained prior to 1950. Twenty eight of the front pagesin the book contained notes on Botany for the first examination inScience while the other back page contained a few more notes on Botanyand three impressions of the rubber stamp of the Zoology Department,signed by the plaintiff and one of them bearing the date 7.12.4S.Apparently this rubber stamp was available at all times to the students.In the middle of the book were five sheets on the right hand page of eachof which was a drawing of the circulatory system of the rat. One of thesedrawings appeared to have been corrected by Dr. Crusz. The five pagesreferred to were of the same typo of paper as the rest of the book, whichalso contained tho correct number of sheets for a University exorcisebook. Tho cover and the pages of tho book were in good condition buttho binding thread appeared to have torn the cover. Tho book itselfis not an oxhibit in this case, and these observations as regards its con-dition and contents are taken over from tho report PI 1 in which thecommittee’s findings were communicated to the Board of Residenceand Discipline. It appears from the same report that at tho meeting oftho committee at which the plaintiff produced the exorcise book, butbefore he had done so, Miss Balasingham had been questioned whethershe could remember anything specific about the book other than theGorman words and she stated that sho thought that it contained a drawingof the arterial system of the rat because sho had previously copied thatdrawing into the same exercise book into which sho subsequently hadcopied the German words. Thero were in fact in Miss Balasingham’s -book copies of two of tho drawings appearing in the plaintiff’s book.
YVEERASOORIYA, J.—Fernando r. The Unicersitt/ of Ceylon
273
After fcho plaintiff had produced Ids book it was shown to Miss Balasingliamwho was, Iiowcvcr, not prepared to assert positively that it was not thebook from which she had copied, the German words although she had norecollection that it contained any notes in Botany. Dr. Crusz was alsoquestioned as regards tho particular drawing in that book which ho hadcorrected and which boro, in what appeared to bo in his own handwriting,a romark ho had made on tho progress shown by the plaintiff as indicatedby that drawing. Dr. Crusz stated in evidence at the trial that when howas questioned about that drawing by the Vice-Chancellor ho identifiedit as undoubtedly one corrected by him, not only because it boro hisown handwriting but also becauso he had an independent recollection ofthe matter. He also stated that tho Vice-Chancellor seemed to be takenaback by this reply and that as tho latter was sceptical of his assertionlie suggested to the Vice-Chancellor that the opinion of a handwritingexpert be obtained. No expert opinion was, however, obtained.
Tho exercise bock produced by tho plaintiff contained no Germanwords at all, nor (presumably) did it boar any signs of erasures on anyof its pages. Tho real evidence afforded by the book, the evidence of Dr.Crusz, identifying the particular drawing in it which lie claimed to havecorrected and tho reluctance of Miss Balasingham to assert positivelythat it was not the book from which she copied the German words, wereall in favour of tho plaintiff. Hut tho members of the committeeof inquiry appear to have taken the view that there were circumstancesjustifying the suspicion that five sheets had been extracted from themiddle of the book and five other sheets containing the drawings referredto had been removed from a similar book and interpolated so as to makeit appear that this was the only book in plaintiff's possession from whichit would have been possible for Miss 33alasingham to have copied any-thing into her book. The main circumstances which influenced theCommittee in entertaining this suspicion are (1) that the binding threadappeared to have torn tho cover, possibly indicating that the thread hadbeen removed and replaced by means of a stout needle ; (2) that the bookopened readily at the centre page and there was a- crease in a drawing onone page, suggesting that the book had been placed in a pi'ess ; (3) thatthat there was no explanation as to why tho plaintiff should have stampedone of his-Botany notebooks with the stamp of the Zoology Departmentand have signed and dated one of the impressions ; (4) that it was re-markable that although, as stated on an earlier occasion by the plaintiff,lie made notes of his lectures in Zoology in files and drawing books, lieshould have at the end of his course entered in an old Botany exercisebook his drawing of the circulatory S3*stem of the rat ; and (5) that thoparticular drawing which had been corrected by Dr. Crusz and bore hishandwriting may have been c: copied ” and was not the original. Thecommittee accordingly concluded that no inference, cither favourable orunfavourable to the plaintiff, should be drawn from this book and decidedto consider tho allegation against the plaintiff only on such other evidenceas was available. In my opinion, and with all respect to tho membersof the committee, most of the matters which raised this cloud of suspicionregarding the book were either too trivial or too speculative to havemerited serious consideration.
It was, nevertheless, entirely within the competence of the committee-to have entertained the suspicion that the exercise book produced by theplaintiff was a fabrication provided it was arrived at fairly and in goodfaith. Regarding the good faith of tiio members of tho committee tlicre-can bo no question. Rut it seems to me that what is disquieting abouttliis part of tho committee’s investigation is that the plaintiff was at no-time afforded an opportunity of explaining tho allegedly suspicious-features about this book. His explanation of these features, given afterthe report Pll and tho final decision of the Board of Residence and Dis-cipline had been communicated to him, is contained in paragraphs (/)to (») of his letter P14 to tho Vice-Chancellor. That on the ground ofthese suspicious features the committee should have decided to ignoretho evidence relating to this book could not have been otherwise thandetrimental to the plaintiff since if that evidence had been taken intoconsideration in tho light of the plaintiff’s explanation (had he bcen-given an opportunity of tendering it in tho course of the committee’sinquiry) it may well have turned tho scales in his favour.'
Having considered the various matters to which I have drawn attentionin this somewhat detailed summary of the proceedings before the com-mittee of inquiry I have little hesitation in forming the opinion that,irrespective of the question whether the committee of inquiry or the Vice-Chancellor were performing a quasi-judicial or purely administrativefunction in holding the inquiry, the procedure adopted was unfair to theplaintiff in that it deprived him of a reasonable opportunity of testingtho truth of the case against him or of presenting his defence and ex-plaining various matters in regard to which adverse inferences were drawnagainst him. In my view it is no answer in justification of that procedureto say that tho plaintiff at no time asked for an opportunity of cross-examining Miss Balasingham or to be given fuller particulars of the casehe had to meet. It must bo remembered that the plaintiff appearedbefore the committee of inquiry in the position of an accused withoutbeing represented by counsel or a friend, and it is hardly to be expectedthat in the circumstances ho would havo mado these requests which,reasonable as they would have been, may have induced in him the appre-hension that they could be misconstrued by the committee and haveprejudiced his case.
Mr. Clioksy on behalf of tho defendant submitted that it would not besafe to assumo that the extent and sufficiency of the proceedings beforethe committee of inquiry arc fully reflected in the evidence adduced inthis case, and that if this Court, acting on such an assumption, wereto arrive at an adverse finding against the defendant in respect- of thoseproceedings, it would virtually bo condemning the defendant withouthaving given the defendant an opportunity of placing the full facts beforethe court. There is, however, nothing in the cross-examination of theplaintiff or the evidence of Sir Ivor Jennings to suggest that all thematerial facts connected with tho proceedings of the committee of inquiryhad not been elicited at the trial. It is also to be noted that a substantialpart of the plaintiff’s case was that the findings of the committee of in-quiry were null and void on the ground, inter alia, that they were con-trary to the principles of natural justice. A specific issue incorporating
that around was raised at tho trial, and the cross-examination, of theplaintiff and tho evidence of Sir Ivor Jennings wore, no doubt, mainlydirected towards rebutting this part of the plaintiff’s ease. If there wasother evidence material to the case which was available to the defendant,such evidence should, in my opinion, have been adduced at the trial andin tho circumstances it cannot fairly bo urged that the defendant hadno opportunity of placing all the facts before the Court.. –
Two submissions made by learned counsel for the plaintiff at the hearinjgbefore us may bo dealt -with at this stage. The first of these was that theaction of the Vice-Chancellor in appointing a committee of inquiry toinvestigate the allegation against the plaintiff amounted to an improperdelegation of his functions and was illegal since under Section 8 in Part Iof Chapter VIII of the General Act No. 1 the person to be satisfied is theVice-Chancellor himself and no other, and ho could not have delegatedhis functions under that section except in accordance with the specificprovision which has been made in that behalf. Section 17 of the samePart and Chapter in which section S occurs provides that tho Vice-Chancellor may delegate his functions under section 8 to tho Dean of aFaculty. It was open, therefore, for the Vice-Chancellor to have dele-gated to Professor Mailvaganam, but not to Mr. Keuneman, the functionof inquiring into the allegation against the plaintiff. The evidencegiven by Sir Ivor Jennings at the trial makes it clear, however, that hedid not intend the appointment of the committee of inquiry to be a dele-gation of his functions, and that his object was only to have the assistanceof the other two gentlemen in tho elucidation of what he considered to'bea serious allegation reflecting on tho reputation of the University itself.This evidence has been accepted by tho trial Judge. The very fact thatSir Ivor Jennings himself was a member of tho committee <jf inquiryis inconsistent with a delegation. There is no j>rocedure laid down in-sect-ion 8 as to how the Vico-Chanecllor should act in satisfying himself"in regard to any of t-lio matters dealt with therein. The submission thatthere was an improper delegation of the Vice-Chancellor's functionscannot, therefore, be accepted. Tho other submission' was that! thefindings of the committee of inquiry, as set out in the concluding part ofPll, represented tho findings of the collective body and cannot bo ire -garded as findings arrived at by the Vice-Chancellor. B it the ' evidence-of Sir Ivor Jennings is that as a result of the proceedings before the com-mittee he was personally satisfied that the nature or substance of the?German passage in P3 had become known to the plaintiff prior to.theexamination and that he drafted a report expressing his views and senn-it to the other two members of the committee and thej- agreed Withhim. This evidence, too, has been accepted by the trial Judge. Whileit is possible that before the draft report was sent to the other two membersSir Ivor Jennings had discussed the matter with them and ascerfaihecltheir tentative views and was to some extent influenced bjr those’views-in arriving at the findings against the plaintiff, I do not think that it alters-the jmsition that each member of the committee, including the* Vice-Chancellor, was individually satisfied that the plaintiff had obtainedpri.or knowledge of the nature or substance of the German passage in.
P3. This submission too must, therefore, be rejected.:
I now come to tho principal point on which this appeal was pressed,namely, that in the circumstances of this case the Vice-Chancellor, inholding an inquiry into the allegation against the plaintiff the truth ofwhich allegation had necessarilj' to be decided on the evidence of witnesses(thoxigh not evidence hi the strictly legal sense), was performing a quasi-judicial function and that such inquiry had to be conducted in accordancewith the principles of natural justice. In the determination of thispoint much assistance is derived from some of the judgments hi Englishand local cases hi which tho powers of the Courts have been invoked toquash by writ of certiorari the decisions of various administrative bodies.It was stated by the Privy Concil in the case of Nakkuda- Ali v. Jayaralne1that in the exercise of the powers granted under section 42 of the CourtsOrdinance in regard to the issue of prerogative waits the Supreme Coiutshould be guided by the relevant rules of English common law. Thecircumstances as to when the English Courts would issue these writs havebeen laid down in the oft-quoted passage from the judgment of EordAtkin in the well-known case of Rex v Electricity Commissioners. ExParle London Electricity Joint Committee2 which reads as follows:“ whenever any body of persons having legal authority to determinequestions affecting the rights of subjects, and having the duty to actjudicially, act in excess of their legal authority they are subject to thecontrolling jurisdiction of the King’s Bench Division exercised in thesewrits
In the present case it is not disputed that in inquiring into the alle-gation against the plaintiff the Vice-Chancellor purported to do so on thebasis that he lvas clothed with legal authority in that behalf (as indeedhe was). But Mr. Choks3r strenuously contended that in regard to theaction taken by the Vice-Chancellor and the Board of Residence andDiscipline no legal rights were involved, either of the plaintiff or anyother person. His position was that no student of the University couldclaim a legal right to be allowed to sit for anir University examinationand that, on the contrary, the matter w as entirely within the discretionof tho appropriate authorities of the University.
Section 6 (6) of the Ceylon University Ordinance, Ko. 20 of 19-12,empowers the Universit3r to hold examinations for the purpose of ascer-taining the persons who have acquired proficiency in different branches ofstud3r, and section 32 provides that the conduct of such examinationsshall he prescribed by Statutes, Acts and Regulations made under theOrdinance. Chapter V of the General Act No. 1 deals with the conditionsunder which a student becomes eligible to sit for examinations for firstdegrees, while Chapter VIII of the same Act deals with examinationsprocedure. Under section 10 in Bart II of Chapter V a candidate for thefinal examination in science is required to have passed or been exemptedfrom the first examination and to have followed to the satisfaction of theVice-Chancellor for at least two 3'ears the courses prescribed b3' regula-tions made by the Senate in the subjects in which the candidate presentshimself for examination. Presumably, when the plaintiff presented him-self for the examination to which this case relates he had fulfilled the
1 (tO30) 01 A T,. It. Jo 7.
* (1024) 1 K. B. 171 at 20-3.
conditions imposed under section 10. But even -where those conditionshad been fulfilled by a candidate, section 8 of Part I of Chapter VIIIempowers the Vice-Chancellor to suspend him from the examination,while under section 14 of the same part the Board of Residence andDiscipline may suspend him indefinitely from any University exami-nation. It seems to me, therefore, that even though a right to sit for aparticular examination is not conferred in specific terms on a studentof the University, it is implicit in tho provisions to which I have referredthat such a right exists subject, however, to the powers conferred on theVice-Chancellor and the Board of Residence and Discipline under sections8 and 14 respectively of Part I of Chapter VIII of the General Act No. 1.It would follow, then, that if, as may be presumed, the plaintiff had fulfilledthe conditions imposed under section 10 of Part II of Chapter V of thoGeneral Act No. 1, he acquired a right to sit not only for the examinationheld in March and April, 1952, in the subjects which he offered but alsoany future final examination in science in the same subjects which maybe held by the University authorities, and such a right could only betaken away by appropriate action under the provisions of the above-mentioned sections S and 14.
In my opinion, therefore, the present case would fall within the ambitof the observations of Lord Atkin which I have already quoted, provided,of course, there was imposed on the Vice-Chancellor, or on the Board ofResidence and Discipline, in resjieet of the action taken against the plain-tiff, a duty to act judicially, and the question whether there was such aduty I shall now proceed to consider.
On this question the argument in appeal followed the usual patternin sucli cases, and numerous decisions of the English and Ceylon Courtswere cited to us. Having regard, however, to the importance to citherside of the issues involved, no criticism can be made of learned counselfor having taken uj> several days of hearing in a detailed scrutiny ofthese decisions, but as stated by Lord Radcliffe in delivering the judg-ment of the Privy Council in Nakkuda All v. Jayartdne {supra), “ thebasis of tho jurisdiction of the Courts b3* way of certiorari has been so•exhaustively analysed in recent years that individual instances are nowonly of importance as illustrating a general principle that is beyond dis:putc, 5' and he added that the general principle is most jncciscly statedin the passage quoted earlier by me from the judgment of Lord Atkin inHex v. Electricity Cotumissioners (supra).
Mr. Choksy laid great stress on the words “where the Vice-Chancelloris satisfied …. ” in section 8 of Part I of Chapter VIII of .the
General Act No. 1 as indicating that, inasmuch as £he Vice-Chancellor isthe person to be satisfied, no duty to act judicially is inqiosed, and hesubmitted that this view is confirmed by theabsence of provisionrequiringan inquiry of any kind to be held by the Vice-Chancellor, or giving a rightof appeal to the candidate adversely affected from any order made by theVice-Chancellor under this section. He also pointed out that such ordercannot be set aside even by the Board of Residence and Discipline,
WEERASOORIYA; J.—Fernando t». The University of Ceylon
278
empowered though tho Board be to deal further with the matter in themanner specified in section 14 on receiving the Vice-Chancellor’s reportin terms <3f section 8.-
The effect of language similar to that occurring in section 8 was con-sidered in Weeraralne v. Poulier 1 by Dias, J., who came to the conclusionthat no duty to act judicially was imposed. That case, however, dealtwith the revocation of an authority granted to a dealer in certain con-trolled commodities unde® the Food Control (Special Provisions) Regu-lations, 1943. The regulations do not appear to have conferred a rightin any dealer either to obtain the authority which had been revoked or tocontinue to enjoy the status of ail authorised dealer once that authorityhad been granted. In Dankoluwa Estates Go., Ltd. v. The Tea Controller 2the question whether words of a similar nature implied a duty to actjudicially was also answered by Soertsz, J., in the negative. But thedecision did not turn on the wording alone but on other coirs id orationsas well. In Point of Ayr Collieries Ltd. v. Lloyd-George 3 and Robinson andOthers v. The Minister of Town and Country Planning 4 the effect of equi-valent phraseology was considered and the Court held that there wasno duty imposed to act judicially. In both these cases the making ofthe orders which .were the subject matter of the proceedings had beenentrusted by the legislature to a Minister of State who in arriving at hisdecision was, it woidd seem, entitled to take into account questions ofpolicy and expediency and they are, therefore, to be distinguished fromthe present case. It is also to be observed that in Nakkuda Ali v. Jaya-ratne {supra) the judgment emphasised that there is no general principlethat phraseology such as under consideration excluded an objective testand their Lordships took the view that the words “ Where the Controllerhas reasonable grounds to believe that any dealer is unfit to be allowedto continue as a dealer ”, in the particular regulation the interpretationof which arose in that case, imposed a condition that there must in facthave existed such reasonable grounds, known to the Controller, beforehe could validly exercise the power of cancellation of a licence issued tothe dealer, notwithstanding this interpretation, Mr. Choksy relied onthe ultimate finding in that ease, that the Controller was under no dutyto act judicially or quasi-judieially when applying the regulation, assupporting his submission that the Vice-Chancellor too is not required toact in a similar way when proceeding under section 8. But, as I under-stand the grounds for that finding, they were that when the Controllerrevoked a licence granted to a dealer he was only taking executive actionto withdraw a privilege and not determining any question involving thelegal rights of the dealer ; and that there was nothing in the bare wordsof the regulation itself from which a duty to act judicially couldbe inferred. I have already stated why in the present case I considerthat legal rights of the plaintiff wore involved in the action taken by theVice-Chancellor as well as the Board of Residence and Discipline. More-over, when one looks at tho reasons as set out in the letter P4 and in theevidence of the Vice-Chancellor for appointing a commilteeof inquiiy itic mvnnrcnt that the matter was not one which could have been disposed
(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.