E. M. WIJERAMA and 9 others, Appellants, and A. T. S. PAUL, Respondent

048-NLR-NLR-V-76-E.-M.-WIJERAMA-and-9-others-Appellants-and-A.-T.-S.-PAUL-Respondent.pdf


Wijerama o. Paul
241
[In the Court of Appeal of Sri Lanka]
1973Present: Fernando, P., Sirimane, J., and
Samerawickrame, J.
M. WIJERAMA and 9 others, Appellants, and A. T. S. PAUL,
Respondent
Appeal No. 11 of 1972
S.C. 209/71—Application for a Writ of Certiorari
Medical practitioner—Charge of infamous conduct in a professional• respect—Inquiry by Medical Council—Absence of one or more ofthe members on some days at the inquiry—Effect—Naturaljustice—Rule that those who adjudicate must hear—Extent of itsapplicability—Penal CasesCommittee—Participationof its
Members at the inquiry—Whether bias can be inferred—Certiorari—Scope of the remedy—Availability notwithstandingright of appeal to Minister whose decision shall be final—Meaning of expression “ error of law on the face of the record ”—Statutory tribunals—Desirability of their stating reasons for theirdecisions—Medical Ordinance (Cap. 105), ss. 15, 18 (1) (2), 20,25,- 33, 72—Medical Disciplinary (Procedure) Regulations, 1959,Regulations 4, 5 (2), 8, 9, 11, 14 (4), 17, 21 (4), 22 (2), 24-Courts Ordinance, ss. 42, 88—-Criminal Procedure Code, s. 292—Court of Appeal Act, No. 44 of 1971, s. 8 (1) (b).
The respondent, a medical practitioner, was found guilty by theMedical Council consisting of ten medical practitioners (theappellants) upon a charge of infamous conduct in a professionalrespect in that, by writing a letter to the editor of a newspaper, headvertised for the purpose of obtaining patients or promoting hisown professional advantage or was commending or drawingattention to his own professional skill. The charge was framed, andthe inquiry was held, in terms of certain provisions of the MedicalOrdinance of 1927 and the Medical Disciplinary (Procedure) Regu-lations of 1959. The Council commenced the inquiry in consequenceof a complaint made by another medical practitioner and a report.made thereupon by a Penal Cases Committee consisting of five per-sons all of whom were also members of the Council, but, in such acase, it is the Council and not the Penal Cases Committee thereof thatdetermines whether an inquiry shall be held (Regulation 8 (1) and(2)). Although five members constituted the requisite quorum fora meeting of the Council, all ten members had decided to attend themeetings. All of them did not attend every meeting, but there werealways no less than eight members present. At the conclusion of theevidence the Council found that the respondent was guilty andpostponed for a future date its decision as to the erasure of therespondent’s name from the register of medical practitioners. Noreasons were given for the finding, and there is nothing in theRegulations to compel a setting down of reasons. The respondentdid not appeal to the Minister in terms of section 18 (1) of theMedical Ordinance, but applied to the Supreme Court for awrit of certiorari. When the Supreme Court allowed his application,the Medical Council filed the present appeal in terms of section8 (1) (b) of the Court of Appeal Act No. 44 of 1971.
During the inquiry by the Medical Council, a full note of theevidence in the form of question and answer was taken down eachday by stenographers and reproduced in typed form by the nextday of inquiry. Each member of the Council and the lawyers forthe two sides had been supplied from day to day with a copy ofthe typed record of the whole proceedings.
L XXVI—11
1*A 00SC7—2,803 (73/08)
242
Wijerama v. Paul
Held, (i) that, although one or more members of the MedicalCouncil were absent on one or other of the ten days of inquiry,their absence did not in fact cause the respondent that kind ofprejudice which constitutes a violation of the rule of naturaljustice that those who adjudicate must hear. “When the procedurefollowed, having regard to all the circumstances of the particularcase, has been substantially just and fair, the superior courts intheir supervisory capacity should guard themselves against animpression that natural justice can best be served by these tribunalsobserving a strait-jacket procedure. ”
that it could not be contended that the presence of the fivemembers of the Penal Cases Committee at the meetings of theMedical Council when the inquiry was held and their participationin the finding against the respondent raised a likelihood of bias.In the scheme contemplated by the Medical Ordinance read withthe Disciplinary (Procedure) Regulations the real complainant wasneither the Penal Cases Committee nor the Medical Council butwas the person referred to as the complainant in the Regulations.“ While it may be desirable that members of a Penal CasesCommittee do not themselves sit at meetings of the Council wherethe disciplinary inquiry takes place, we must recognize that it mustbe left to authorities other than the Courts to achieve such adesirable end. ”
that, notwithstanding that the decision of an inferiortribunal is by a statute made final in the manner of section 18 ofthe Medical Council Ordinance, certiorari can still issue for excessof jurisdiction or for error of law on the face of the record or' onthe ground of bias or violation of the principles of natural justice.In the present case, there was error of law on the face of the record.Although the Medical Council did not give reasons for its decision,it maintained a complete record of its proceedings and incorporatedall the relevant evidence. There was no evidence in support ofthe charge that the letter written by the respondent to the editorof the newspaper amounted to an advertisement by the respondentof his professional skill. In the circumstances, the decision of theMedical Council should be quashed.
Obiter: Even in the absence of a legal requirement, it is desirablethat any tribunal against whose decision an appeal is availableshould, as a general rule, state the reasons for its decision, a courseof action which has the merit of being both fair to the petitionerand complainant concerned and helpful to the appellate authority.
Appeal from a judgment of the Supreme Court reported in
75 N. L. R. 361.
N. Satyendra, with D. C. Aniarasinghe and R. D. C. de Silva,for the appellants.
H. W. Jayewardene, with G. Candappa, Mark Fernando,Miss U. J. Kurukulasuriya and Ranil Wickremasinghe, for therespondent.
Cur. adv. vult.
FERNANDO, P.— IVijtrama c. Paul
24 c
April 18, 1973. Fernando, P.—
This is an appeal, in terms of section 8 (1) (b) of the Court ofAppeal Act, No. 44 of 1971, by the members of the Ceylon MedicalCouncil against a judgment of the Supreme Court ((1972) 75N. L. R. 361) granting a mandate in the nature of a writ of certio-rari to quash a. finding of the Council reached on February 15,1971. that the respondent, Mr. A. T. S. Paul, a surgeon, was guiltyof infamous conduct in' a professional respect.
The Ceylon Medical Council has been established under theMedical Ordinance of 1927 (Cap. 105) and, on the dates relevant tothis appeal, would appear to have consisted of ten members whoare all appellants before us. That Ordinance (section 20) pro-vides for the keeping of a register of medical practitioners quali-fied to practice medicine and surgery in Ceylon and confers(section 25) on the Medical Council a discretionary power toerase from that register on any ground authorised by the Ordin-ance the name of any person appearing thereon. One of thegrounds (section 33) for such an erasure is that the Medicalpractitioner concerned has been guilty of infamous conduct in aprofessional respect. Section 72 enables the Minister (of Health)to make regulations for the purpose, inter alia, of giving effect tothe principles and provisions of the Ordinance ; the regulations somade are to be tabled in the Legislature for approval and there-after to be published in the Gazette. On such publication theregulations are declared to be “ as valid and effectual as thoughherein enacted. ”
Regulations as aforesaid, it is admitted, have been made anathose relevant for the purpose of this appeal appear in a supple-ment to Gazette No. 11,980 of November 27, 1959 under the titleof the Medical Disciplinary (Procedure) Regulations, 1959. Theseprovide for the manner in which complaints or reports against amedical practitioner may be made and disposed of. Acting underregulation 4, the 1st appellant who is the president of the CeylonMedical Council referred to the Penal Cases Committee of theCouncil a complaint against the respondent made by another sur-geon. That Committee consisted (see First Schedule to the Regu-lations) of the president himself and four other members of theCouncil (4th, 6th, 8th, and 9th appellants) elected by ballot.While three members of the Committee constituted a quorum, itwould appear that all five members, as indeed they were entitledto do, attended the meetings of the Committee that investigatedthe complaint against the respondent and made a report thereonto the Council. Regulation 8 (1) requires the Council to considerthis report and to determine whether or not an inquiry should beheld into the facts or matters alleged in the complaint. What is
244
FERNANDO, P.—Wijerama v. Paul
important to remember is that it is the Council (reg. 8(1) and
) and not the Penal Cases Committee thereof that determineswhether an inquiry shall be held.
As required by regulation 8 (3) the respondent was served witha notice of inquiry (PI) into three charges numbered 1, 2(a) and2(b), which are set out in the judgment of Alles J. in theSupreme Court. We reproduce below the text of charges 2 (a)and 2 (b) as that text is relevant for the appreciation of thepoint upon which our decision of this appeal rests : —
2(a)—You did advertise for the purpose of obtaining patientsor promoting your own professional advantage byprocuring or sanctioning of knowingly acquiescing inthe publication in the issue of the “ CeylonObserver ” dated 17th February 1970 of an articleentitled “ Not Me ” with reference to an articleentitled “ Talking Point ” published in the issue ofthe “ Ceylon Observer ” dated 9th February 1970thereby commending or drawing attention to yourprofessional skill, knowledge, service orqualifications ;
2(b)—that in the course of the same transaction referred to incharge 2(a) above, by procuring or sanctioning orknowingly acquiescing in the publication of the saidarticle entitled “ Not Me ” with reference to the saidarticle entitled “ Talking Point ”, you did depreciatethe professional skill, knowledge, service or qualifi-cations of another registered medical practitioner,viz. Mr. T. D. H. Perera, F.R.C.S.
Although five members constituted a quorum for a meeting ofthe Council, it would appear that all ten members had decided toattend the meetings of the Council at which this inquiry was held.A chart showing the attendances shows that all ten did not attendevery meeting. Nevertheless, there were always no less thaneight members present. The inquiry extended, with adjourn-ments, over ten days covering the period August 29, 1970 toFebruary 15, 1971. The proctor appointed by the Council andwhose office is provided for by the Regulations presented thefacts, led evidence and generally conducted the case against therespondent, while the respondent was present throughout and wasrepresented by counsel. At .the conclusion of the evidence and ofthe addresses of counsel and proctor respectively, the 1st appel-lant, as President of the Council, announced the Council’s findingswhich were that the respondent was not guilty on Charges 1 and2 (b), but guilty on Charge 2 (a). No reasons were given for thesefindings, and there is nothing in the regulations to compel a
FERNANDO, P.—Wijerama v. Paul
245
setting-down of reasons. No record has been made whether theeight members who participated at the two final meetings atwhich the findings were reached were unanimous or divided and,if divided, the nature of such division of opinion. Acting underthe power of the Council—reg. 17—which enables it to postponefor a future date its decision as to erasure of the respondent’sname, the 1st appellant also announced that that decision ispostponed for one year.
Section 18(1) of the Ordinance renders every order or decisionof the Medical Council subject to an appeal to the Minister (ofHealth), and the latter’s decision is declared final. The exerciseof the Minister’s power to decide an appeal would certainly befacilitated if he knows the reasons which led the Council to makethe order or decision complained of. Even in the absence of alegal requirement, we think it desirable that any tribunal againstwhose decision an appeal is available should, as a general rule,state the reasons for its decision, a course of action which has themerit of being both fair to the practitioner and complainant con-cerned and helpful to the appellate authority. We observe thatsection 18 (2) casts a duty on the Council to give all informationwhich may be required for the purpose of an appeal, but we aredoubtful whether the reasons for an order or decision are em-braced within this “ information ” and consider that furnishing ofreasons at that late stage, after appeal filed, is both unsatisfactoryand without precedent.
It has not been contended by the appellants that section 18 pro-vides the only remedy to a person aggrieved by an order or deci-sion made by the Council. All that was submitted on their behalfwas that an alternative remedy was available. But, as Denning
J. stated in Regina v. Medical Appeal Tribunal, Ex parte Gil-more,1 (1957) Q.B. at 583, “Notwithstanding that the decision isby a statute made final, certiorari can still issue for excess ofjurisdiction or for error of law on the face of the record. ” Wecould, in an effort at completion, add “ or on the ground of bias orviolation of the principles of natural justice. ” Parker L.J. in thesame case (589) pointed out that “ there are many instanceswhere a statute provides that a decision shall be “ final ”. Some-times, as here, the statute provides that subject to a specific rightof appeal the decision shall be final. In such a case it may be saidthat the expression “ shall be final ” is merely a pointer to the
fact that there is no further appealI am satisfied that
such an expression is not sufficient to oust this important andwell-established jurisdiction of the Courts. ”
1 (1957) 1 Q. B. at 583.
1 **—A (Wxfii (8 73)
246.
FERNANDO, P.—Wijerama v. Paul
The power, of the Supreme Court to grant a mandate in thenature of a writ of certiorari or of prohibition is to be found insection 42 of the Courts Ordinance, and the Privy Council deci-sion of Nakkuda Ali v. Jayaratne1' (1950) 51 N.L.R. 461 is stillvalid- authority for the view that, in the issue of mandates“ according to law ” under section 42 of the Courts Ordinance,we have to resort to the relevant rules of the English commonlaw in order to ascertain in what circumstances and under whatconditions their issue can be effected.
The respondent did seek successfully the intervention of theSupreme Court to quash the finding of the Medical Council oncharge 2 (a), and an examination of the judgment of theSupreme Court shows that that Court considered in the maintwo points urged for the respondent. These were—
that, by reason of one or more members of the Medical
Council being absent on one or other of the ten daysof inquiry, such absent members became disqualifiedto participate on subsequent days of inquiry, and bytheir participation after such disqualification there hasbeen a violation of the rule of natural justice that thosewho adjudicate must hear ;
that the fact that five members of the Penal Cases Com-
mittee investigated into the complaint made by theother surgeon and reported thereon to the Council dis-qualified them to participate in the subsequent inquiryfor the reason that there was a reasonable likelihoodthat they were biassed as being virtually both Judgesand parties, and therefore there has been a violationof the principle embodied in the maxim “nemo potestesse simul actor et judex ”.
In regard to this latter point (2), the two judges differed intheir conclusions. Alles J. upheld the argument that there wasa likelihood of bias, whereas Wijayatilake J., while expressingthe opinion that there would have been a tendency for memberswho were on the Penal Cases Committee to justify their recom-mendation to the Council, felt that the Court could not questionthe regularity of the Council’s proceedings as they conformedto the Regulations. It would, therefore, seem that the respon-dent’s application succeeded only on point (1). The two judgeswhile upholding that point were, nevertheless, not fully agreedon their reasons, and we must therefore examine those reasons.
1 (1950) 51 N. L. R. 461.
FERNANDO, P.—Wijerama v. Paul24?
Of the ten members (the appellants) only four failed to attendall ten meetings. These were Dr. Wijegoonewardene (10thappellant), Dr. Rajanayagam (9th appellant), Dr. C. L. A. deSilva (2nd appellant) and Dr. Medonza (6th appellant). Dr.Wijegoonewardene attended only the fourth meeting and didnot participate in the decision. Alles J. expressed the view thatthis member’s absence could not have prejudiced the respondent,and we agree. There is no reference in the judgment of Wijaya-tilake J. to the absence of either Dr. Wijegoonewardene orDr. Rajanayagam. It would be correct for us to assume thatWijayatilake J. did not consider the absence of either of thesemembers as causing prejudice. Dr. Rajanayagam was absent atthe last four meetings. It was at the last two of these fourmeetings that addresses of counsel were heard and the findingsconsidered. Dr. Rajanayagam appears to have sent a letter ofresignation which “ had not been accepted by the President ofthe Council. ” Section 15 of the Ordinance enables a member toresign by letter addressed to the president, and there is norequirement of an acceptance before a resignation becomes effec-tive. Alles J. considered that Dr. Rajanayagam’s absence at themeetings prejudiced the respondent and he sought to draw ananalogy from the situation arising from the absence of a jurorin a case through illness or other cause. That is, with respect,not an analogous situation because the quorum there is alwaysthe full number, of jurors, and a tribunal which acts where thelegally required number of judges (or jurors) is not present
does so without jurisdiction.
;
Of the other two members, Dr. de Silva was absent onlyon the occasion of the second meeting at which the other surgeonwas cross-examined. Alles J., rightly as it seems to us, did notconsider this member’s absence at this one meeting as havingbeen capable of leading to-a prejudice of the respondent’s caseso far as the finding on the only charge now remaining, viz. 2 (a)was concerned. Wijayatilake J. did not share that view.
Both judges were, however, agreed that the absence ofDr. Medonza at the eighth meeting (the only meeting he failedto attend) caused prejudice to the respondent in that he therebydid not have the advantage of listening to the answers of therespondent under cross-examination. Alles J. thought that ifthis member had been present at this particular meeting hemight have been able to persuade the. other members to cometo a different decision. Wijayatilake J. expressed as his reasonfor the finding of prejudice in the consideration of the respon-dent’s defence the inability of Dr. Medonza, on account of hisabsence, to observe the demeanour of the respondent while undercross-examination. It would therefore seem that the judgment
243
FERNANDO, P.—Wijerama v. Paul
of the Supreme Court on point (1) really resulted from thatprejudice which the learned judges thought likely to hayefollowed from the absence of Dr. Medonza at that eighthmeeting.
"We recognize that the relevant regulations contemplate thetaking, upon an inquiry, of oral evidence, and it must be notedthat there has been no contravention of that requirement. Theregulations permit the evidence to be taken at a meeting wherethe required quorum of members is present. There has beenhere no contravention of that regulation either. The complaintis that every member who participated in the decision was notpresent at the taking of the evidence. In reaching its decision onthis point, the Supreme Court appears to have been influencedby certain decisions of courts in -England and Canada relatingto the failure by tribunals to observe natural justice. Alles J.cites a passage from Professor de Smith’s treatise on “ JudicialReview of Administrative Action ” (2nd ed., p. 206) to the effectthat “ it is a breach of natural, justice for a member of a judicialtribunal or an arbitrator to participate in a decision if he has notheard all the oral evidence and the submissions. ” The proposi-tion so stated by the learned author must, of course, be under-?stood in the light of the judicial decisions he relies on thereforand the references to which are to be found in his notes. Theproposition purports only to be the effect of the particular -judbcial decision®. To appreciate the full scope thereof or the limita*tious to which" it may be subject the cases themselves have to feeexamined.
Of the cases relied on in the judgments in the Supreme Court,those of In re Plews and Middleton1 (1845) 14 L.J.Q.B. 139 andTameshwar v. Reginam2 (1957) 2 A.E.R. 683 have no applicationbecause they are both cases of want of jurisdiction and not ofnon-observance of natural justice. In the first of these, evidencewas taken only before one arbitrator while the agreementbetween the parties was to refer their dispute to two arbitrators.In the other case, the court was said to consist of judge andjury and not of the jury alone.
So far as the other three cases are concerned, in Munday v.Munday * ,(1954) 2 A.E.R. 667, which incidentally was an appealand not a certiorari proceeding, there was again want of juris-diction by reason of non-compliance with a mandatory provisionof law (section 98 (6) of the Magistrates’ Courts Act, 1952)which required justices composing the court “ to he presentduring the whole of the proceedings. ” An additional ground
1 (1845) 14 E. J. Q. B. 139.* (1957) 2 A. E. R. 6S3.
* (1954) 2 A. E. R. 667.
FERNANDO, P.,— Wijeratna v. Paid
249
there for interference by way of appeal was that justice wasnot manifestly seen to be done inasmuch as the final decision wasgiven by three justices two of whom had not sat at the first ofthe three sittings, while the other had not sat at either of thetwo earlier sittings. Therefore the knowledge of all three justiceswas derived partly from notes of evidence at which they werenot present. There is no indication how complete those noteswere, and, in any event, the facts in Munday v. Munday werematerially different from those of the case on appeal before us.In another case relied on by the Supreme Court, King v. Hunt-ingdon Confirming Authority1 1929 (1 K.B.D. 698), it wasapparent that “ the facts were entirely unknown to three of theeight justices who constituted the confirming authority, and itwould seem to follow that no notes of evidence had been kept.
Both judges in the Supreme Court greatly relied on a decisionof the Supreme Court of Nova Scotia in Regina v. Committeeon Works of Halifax City Council2 (1962) 34 D.L.R. 45. Apartfrom the circumstance that at all relevant meetings of the Com-mittee on Works there was present, as in the case of the MedicalCouncil’s meetings, the requisite quorum of members, the mate-rial facts are different in the two cases. We would take theliberty of saying, with due respect, that the Halifax case appearsto have been correctly decided, the law applicable in NovaScotia also being the English law. The Court’s ruling proceededon the basis that four members who had not heard all theevidence and argument participated in the decision. No recordhad been kept of the evidence taken ; minutes of the meetingshad been kept but these did not contain a full record of whathappened thereat. As Ilsey C. J. pointed out in the course ofhis judgment (p. 49)—“none of this appears in the minutes andthe absent aldermen would have had no means of knowing thatthose alleged adverse reports were not relied on by the Inspec-tor, nor would they have been in a position to appraise the signi-ficance of the alleged adverse report from the Fire Department. ”
The position at the Medical Council’s inquiry was materiallydifferent. A full note of the evidence in question and answerform was taken down each day by stenographers and repro-duced in typed form by the next day of inquiry. On each suchday counsel and proctor, and occasionally the members, pointedout necessary corrections in that record of evidence, and cor-rections were made of consent. The record contained a verbatimrecord of objections raised by either side and of the argumentthereon. Each member of the Council and the lawyers for thetwo sides had been supplied from day to day with a copy of the
(1029) 1 K. B. V. 698.
* (1962) 34 D. L.P. 45.
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FERNANDO, P.—Wijerama v. JPaul
typed record. It would be a valid assumption that all membersread the copies so supplied. The Halifax case is distinguishable onthe facts, and we are unable to agree that the absence of Dr.Medonza on the day of the cross-examination of the respondentresulted in material prejudice to the latter. On charge 2 (b)the material evidence was limited to the two publications andthe respondent’s letter to the editor which occasioned the secondof these publications. The other evidence, and certainly therespondent’s own which, as regards this charge, consisted of adenial of any improper purpose, added nothing of further rele-vance. If Dr. Medonza was not convinced of the truth of thatdenial from his reading of the answers of the respondent in therecord, it would, in our opinion, be artificial in the extreme tohold that he might have been convinced if he had had theadvantage of observing his professional colleague’s demeanourat the time the latter testified.
Alles J. has held that a judge who has not heard a materialpart of the case becomes disqualified from continuing as a judge.While a proposition of that nature baldly stated is not unaccept-able; it often becomes a difficult task to decide what is such amaterial part. In the instant case we are satisfied that the absenceof Dr. Medonza was not at a material part of the proceedings.'It would be very desirable if all members of a tribunal who com-mence an inquiry continue to sit thereon until its conclusion ;but we must be chary of converting a counsel of perfection intoa legal requirement, irrespective of whether the procedure fol-lowed has been substantially just and fair. Moreover, the pheno-menon of one judge acting on evidence taken before another isnot one wholly repugnant to our law, and our legislators havethemselves recognised (see e.g. sections 88 of the Courts Ordin-ance and 292 of the Criminal Procedure Code) the acceptabilityof decisions reached in that way. We might with advantage alsoremind ourselves of certain dicta of Lord Reid and Lord Morristo be found in the recent case of Wiseman v. Borneman1 (1969) 3A.E.R. 274. The former observed that “ natural justice requiresthat the procedure before any tribunal which is acting judiciallyshall be fair in all the circumstances, and I would be sorry tosee this fundamental general principle degenerate into a seriesof hard and fast rules ”, while the latter stated—
“ We often speak of the rules of natural justice. But thereis nothing rigid or mechanical about them. What they com-prehend has been analysed and described in many authori-ties. But this analysis must bring into relief rather theirspirit and their inspiration than any precision of definition
’ (1909) 3 A. B. R. 274.
FERNANDO, P.—Wijerama v. Paul
251
or precision as to application. We do not search for pres-criptions which will lay down exactly what must, in variousdivergent situations, be done. The principles and proceduresare to be applied which, in any particular situation or set ofcircumstances, are right and just and fair. Natural justice,it has been said, is only “ fair play in action ”. ”
In the complex society into which we are moving legal and socio-economic considerations have motivated the introduction inincreasing measure of administrative tribunals whose duty is toreach decisions affecting the rights of citizens but who arerequired to hold due inquiry. Where the procedure followed,having regard to all the circumstances of the particular case, hasbeen substantially just and fair, the superior courts in theirsupervisory capacity should guard themselves against an impres-sion being created that natural justice can best be servedby these tribunals observing a strait-jacket procedure.
With all respect to the learned judges of the Supreme Courtwho have come to a conclusion on point (1) that prejudice hasresulted or was likely, we are unable to agree that the absenceof Dr. Medons’a, or of Dr. de Silva for that matter, caused thatkind of prejudice which constitutes a violation of the rules ofnatural justice.
Turning next to point (2), learned counsel for the respondentsought to satisfy us that Alles J. was right in his conclusion thatthe presence of the five members of the Penal Cases Committeeat the meetings of the Medical Council when the inquiry was heldand their participation in the finding against the respondentraised a likelihood of bias. We agree with the view expressedby Wijayatilake J. on this point (2), but, in deference to theopinion expressed by Alles J., we have examined the decisionshe has cited in his judgment. It is our opinion that these autho-rities relate to situations different from that in the proceedingbefore our Medical Council. R. v. Milledge 1 (1879) 4 Q. B. D. 332was a case where three of the justices who adjudicated upon•a summons issued against the accused and convicted them werealso members of the town council, and in virtue of that officewere members of the sanitary authority and so were parties tothe resolution to prosecute the accused. That was the reasonwhy the Queen’s Bench Division held that they assumed thedouble role of prosecutors and judges. In the case of R. v. Lee3(1882) 9 Q. B. D. 394 the position was the same as in Milledge.except that there only one member of the sanitary committee sat
1 (1379) 4 Q. B. D. 332.
(1882) 9 Q. B. D. 394.
252
FERNANDO, P.—Wijt-rama v. Paul
later on the bench as a justice. The Queen v. Gaisford * (1892) 1Q. B. D. 381 was a stronger case than even Milledge as the magis-trate who with another convicted the accused had earlier at avestry meeting himself moved the resolution which was thefoundation of the legal proceedings subsequently taken againstthe accused. In Leeson v. General Council of Medical Educationand Registration 2 (1889) 43 Ch. D. 366, the actual decision of themajority of the Court was that the fact that two members ofthe council (that held the inquiry resulting in a decision to erasefrom the register the name of a medical practitioner) weremembers of a Medical Defence Union the object of which was tosuppress and prosecute unauthorised practitioners did not amountto their having such an interest as disqualified them although thecourt stated it was an undesirable practice.
Apart from the decisions mentioned in the judgment of Alles J.,our attention was invited on behalf of the respondent to thecase of Frome United Breweries Co. v. Bath Justices’ (1926)A. C. 586. We do not consider this authority applicable as therethree of the justices whom the Court held were disqualified onthe ground of a real likelihood of bias had earlier voted in favourof a resolution of licensing justices authorising a solicitor toappear before the tribunal on their behalf and oppose the renewalof the licence !
In the case before us, an examination of the Disciplinary(Procedure) Regulations shows that the proceedings commenceupofi a eomplaint or report (reg. 4), that the complainant isinformed (reg. 5 (2) ) of a decision of the Council not to referthe complaint to the Penal Cases Committee as well as of adecision to hold an inquiry (reg. 8 (2) ). In the latter event thecomplainant receives (reg. 8 (7) ) a copy of the notice sent tothe practitioner. The complainant is entitled to receive (reg. 9),on application made to the proctor, copies of affidavits, explana-tions or other statements. Regulation 11 appears to recognisethe complainant as a party to the inquiry. Even after a findingby the Council, where the decision has been postponed, regula-tions 21 (4), 22 (2) and 24 require that notice of the subsequentmeeting be sent to the complainant, enable him to send affidavitsor statements to the proctor and entitle him to be heard at thesubsequent meeting.
Moreover, as we have noted earlier, in this judgment, whilethe Penal Cases Committee makes a report to the Council, it isthe Council itself that is required by the regulations to takethe decision that an inquiry shall take place. Therefore, if the 1
1 (1892) 1 Q. B. D. 381.s (1889) 43 Oh. D. 366.
(1926) A. O'. 586.
FEKXAXDO, P.—Wijcrama c. Paul
25*
members of the Committee are disqualified to sit, it must follownecessarily that the other members of the Council are similarlydisqualified. We are reminded in this situation of the remarksof Field J. in Lee’s case (supra) that express terms in an Act ofParliament would be required to enable a person to act both asprosecutor and judge. It would seem that the Medical Ordinanceread with its Regulations require the Council to decide to prose-cute as well as to judge. The true answer to the objection ofbias, however, is that in the scheme contemplated by the relevantlaw the real complainant is neither the Penal Cases Committeenor the Medical Counc i but is the person referred to as thecomplainant in the regulations. The argument raised on biasmust therefore fail.
An argument was also addressed to us, probably based on theobservations of Cockbum C.J. in the case of Milledge (supra)that all five members of the Penal Cases Committee were notobliged to sit on that Committee and that, if only three had satthere, seven other members would have been left to sit on theinquiry by the Council where the quorum required was onlyfive. While it may be desirable that members of a Penal CasesCommittee do not themselves sit at meetings of the Councilwhere the disciplinary inquiry takes place, we must recognizethat it must be left to authorities other than the Courts to achievesuch a desirable end.
Our inability to uphold the two points relied on by the res-pondent before the Supreme Court does not necessarily involvea success of this appeal. It would appear that a third point wasraised by the respondent, and, indeed, some reference thereto isto be found in the judgment of Wijayatilake J. where, as he putit, the Court “ is not precluded from questioning a decision whichis manifestly erroneous.” The petition presented to the SupremeCourt by the respondent contained the complaint—(clause (c)of paragraph 4)—that the 1st to the 8th appellants (those mem-bers of the Council who participated in making the decision)have made errors of law apparent on the face of the record inmaking any finding and in coming to any decision adverse tothe respondent. “ There was no evidence in support of charge 2
”. Moreover, there is no reason why a respondent to anappeal may not seek to maintain the judgment appealed againstby relying on a ground other than those stated in that judgment,particularly where that ground is one on which he had relied atthe time he presented his petition to the original Court.
•254
FERNANDO, P.— Wijerama v. Paul
The remedy by way of certiorari to quash the decision of aninferior tribunal for an error of law on the face of the recordwas long available in English law, although there was a period•during which it had fallen into disuse. In the case of Overseersof the Poor of Walsall v. London and North-Eastern Railway*Co.1 (1878) 4 A. C. at 39, Earl Cairns L. C. stated : —
“ But the Court of Quarter Sessions, like every otherinferior Court in the kingdom, was open to this proceeding ;if there was upon the face of the order of the Court ofQuarter Sessions anything which showed that that order waserroneous, the Court of Queen’s Bench might be asked tohave the order brought into it, and to look at the order, andview it upon the face of it, to put an end to its existence byquashing it ; not to substitute another order in its place, butto remove that order out of the way, as one which shouldnot be used to the detriment of any of the subjects of HerMajesty.”
Reference was made to the Walsall case 72 years later when'Goddard L. C. J., presiding over a King’s Bench Divisional Court,•overruling a decision to which he had himself been party, appliedthe ruling in Walsall to quash by certiorari the decision of atribunal where the latter had embodied its reasons in its orderand those reasons were bad in law.—Rex v. NorthumberlandCompensation Appeal Tribunal‘ (1951) 1 K.B. 711. The Courtalso held that certiorari is not a remedy which can be grantedonly where an inferior tribunal has acted without or in excess ofits jurisdiction. An appeal to the Court of Appeal against thisdecision was unsuccessful, Singleton L. J. declaring (1952 1
K.B. 341) that “ error on the face of the proceedings has alwaysbeen recognized as one of the grounds for the issue of an order-of certiorari,” while Denning L. J. elaborated as follows : —
at p. 347—The Court of King’s Bench has an inherentjurisdiction to control all inferior tribunals, notin an appellate capacity, but in a supervisory- capacity. This control extends not only to seeingthat the inferior tribunals keep within their juris-diction, but also to seeing that they observe thelaw. The control is exercised by means of a powerto quash any determination by the tribunal which,on the face of it, offends against the law. ”
^and again, at p. 348—“ Of recent years the scope of certiorariseems to have been somewhat forgotten. It hasbeen supposed to be confined to the correction of *
* (1S78) 4 A. O. at 89.
(1951) 1 K.B. 711.
KERXA3TDO, P.—IYijcrama v. Paul
255
excess of jurisdiction, and not to extend to thecorrection of errors of law ; and several judges havesaid as much. But the Lord Chief Justice has, inthe present case, restored certiorari to its rightfulposition and shown that it can be used to correcterrors of law which appear on the face of the record,even though they do not go to jurisdiction. ”
The Supreme Court has considered it as well settled underour law that error appearing on the face of the record of adecision of a statutory tribunal renders that decision liable tobe quashed—see South Ceylon Democratic Workers’ Union v.Selvadurai1 (1962) 71 N.L.R. 247.
If, then, certiorari is available to control or supervise an errorof law on the face of the record, what constitutes the record ?To this question too, Denning L. J. in the same Northumberlandcase, (supra) sought to give an answer which may suffer onlyin the sense of not being exhaustive. Said he, (1952) 1 K.B. 352,“it has been said to consist of all those documents which arekept by the tribunal for a permanent memorial and testimony
of their proceedings Following these cases, I think
the record must contain at least the document which initiatesthe proceedings; the pleadings, if any, but not the evidence,nor the reasons, unless the tribunal chooses to incorporate them.If the tribunal does state its reasons, mid those reasons arewrong in law, certiorari lies to quash the decision. ” In theNorthumberland case the quashing by certiorari was occasionedby error of law as disclosed in the reasons for the decision.Lord Denning maintained similar views in the later case ofBaldwin and Francis Ltd. v. Patents Appeal Tribunal2 (1959)A.C. 663 although the other judges associated with him there, itmust be mentioned, preferred to reserve for future considerationa definite opinion on the point. If absence of evidence to supportthe decision constitutes error of law, we find no little difficultyin imagining how error of law on that ground can ever beestablished if the supervising court cannot look at the evidence,even where it is available. There is substance in the commentof Professor de Smith, in his “ Judicial Review of AdministrativeAction” (2nd ed., p. 118), that the “no evidence” rule hasestablished itself because Superior Courts exercising appellateor supervisory jurisdiction in respect of errors of law need tohave power to intervene wherever manifest or gross error isrevealed.
1 (1962) 71 N. L. R. 247.
(1959) A. O. 663.
2fiS
FERNANDO, P.— Wijerama v. Paul
As noted already, neither the Medical Ordinance nor theMedical Disciplinary (Procedure) Regulations require theCouncil to state its reasons for an order or decision. It has in. 'this case not chosen to state them. It has, however, maintaineda complete record of its proceedings from the moment therespondent appeared before it until the stage when the orderor decision sought to be quashed was made, and this record con-tains all the evidence (in the form of question and answer)given and a full and comprehensive record of all the argumentsadduced before it. The proceedings show that corrections ofthe record were permitted from day to day at the instance ofthe lawyer for one side or the other. The record actually keptwas one that would have done credit to any court. It was sucha record that was forwarded to the Supreme Court when therule nisi issued, and it is such a record that we have had theadvantage of examining on this appeal. There is before us thestatement of the charges framed by the Council against therespondent, all the documents produced, a complete record ofall the evidence taken upon the inquiry and a comprehensiverecord of all the arguments and the order or decision madeby the Council.
If the order of a court or tribunal purports to incorporate altthe relevant evidence, error of law will be apparent, inter alia,if there is no evidence in support of a recorded finding of primaryfact or in support of any material fact. That was the positionin R. v. Birmingham Compensation Appeal Tribunal1 (1952) 2A.E.R. 101 where an order of the tribunal was quashed by theQueen’s Bench Division on the ground of error of law on theface of the record.
In the case of Edwards v. Bairstow 3 (1956 A.C. 29), which wemust note was a case of appellate and not supervisory review,the highest of the English Courts has held that even a findingof fact may be set aside “If it appears that the commissionershave acted without any evidence or upon a view of the factswhich could not reasonably be entertained. ” Professor de-Smith in his treatise already referred to above (2nd ed. p. 121),after submitting a number of judicial decisions to examination,states as a proposition that “ there appears to be no substantialdifference at the present time between appellate review forerrors of law and supervisory review for error on the face ofthe record. ” This proposition is, of course, to be taken subject ito the exceptions which are also set down by the learnedauthor, but which are not material for our consideration on thisappeal.
1 11952) 2 A. B. R. 707.* (1956) A. O. 29.
FERNANDO, P.— Wijerama v. Paul
257
Charge 2 (a), the sole charge (reproduced earlier in thisjudgment) on which a finding of guilt was reached by theCouncil contained two allegations, (1) that the respondent didadvertise commending or drawing attention to his professionalskill or knowledge and (2) that the purpose of the advertisementwas to obtain patients or promote his own .professionaladvantage.
It is unnecessary to reproduce here the short report P3 headed“ Talking Point ”, the respondent’s letter P14 to the editor orthe newspaper’s own comment P4 headed “ Not Me ” as theyall appear in the judgment of Alles J. in the Supreme Court. Itwas contended before the Council that the newspaper’s con-densation P4 of the respondent’s letter P14 constituted theadvertisement. We entertain doubt as to whether the report P3contained news of any value to the general public and mustexpress our surprise that news of this nature came to be pub-lished in the daily press. Be that as it may, news come to bepublished so that the public may read them, and the respondentdid call evidence of four respectable witnesses (two membersof the medical profession and two others) who had read P3 andquestioned him as to whether he had anything to do with theoperation which was the subject of that report. If the respon-dent did thereupon address P14 . to the editor, he did so withcause, and the cause set out was that the details given in thereport have led to a misconception that the operation was per-formed by him. The editor, in acceding to the respondent’srequest, omitted to publish the cause so set out. If readers ofP3 began to speculate on the identity of the surgeon who per-formed the alleged operation, it is not to be wondered at thata surgeon who had nothing to do with it but who had beenquestioned about it by friends and members of the profession feltimpelled to dissociate himself from any such happening. Therewas no evidence that the respondent did anything furtherthereafter.
We do not ourselves feel competent to express any view as tothe wisdom of the course the respondent followed in addressingP14 to the editor. We would confine ourselves to the questionbefore us, which is whether by so doing the respondent was adver-tising for the purpose of obtaining patients or promoting his ownprofessional advantage or was commending or drawing attentionto his own professional skill. The mere fact of a surgeon dissoci-ating himself from any connection with a reported surgical mis-adventure said to have occurred in circumstances reflecting nocredit on the surgeon who performed the alleged operation can-not, in our opinion, reasonably bo said to constitute a commendingof his own professional skill. The dominant intention of such a
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FERNANDO, P.—Wijerama v. Paul
surgeon would ordinarily be to safeguard whatever reputationhe enjoys. The mere fact of dissociation, without more, mustfall short of commendation of his professional skill or promotionof his own professional advantage.
A tribunal which draws an inference wholly unsupported bythe primary facts errs in point of law. Where a perusal of the-whole record of the proceedings discloses that the sole materialevidence in furtherance of charge 2(a) was the writing by therespondent of letter P14 and thereby causing P4 to be published,,it is plain that there is no evidence to support the finding of guilton that charge. The position is made all the plainer by the findingreached by the Council on charge 2(b) that the respondent bycausing this very publication to be made was not depreciatingthe professional skill or knowledge of the other surgeon, the realcomplainant in this case. We agree respectfully with the obser-vation of Wijayatilake J. in the Supreme Court that “ the MedicalCouncil having acquitted the respondent of the other chargesshould have proceeded to do so in respect of charge 2(a) too ” aswell as with his further observation that “ a mere storm in a teacup has developed into a serious confrontation. ”
While we must recognise that the Medical Council, subject tothe power of the Minister on appeal, remains the best judge ofwhat constitutes infamous conduct in a professional respect, wetake liberty to point out that the charge sent out by the MedicalCouncil itself correctly contemplated that advertisement as suchwas not infamous conduct except where it was accompanied bythe specified disreputable or dishonourable intention. While welabour under the disadvantage of an absence of the reasons whichled the Council to hold the charge proved, we do have before usall the material that was before the Council. The evidence rele-vant to the charge led against the respondent consisted of thedocuments referred to above, and the oral evidence led in sup-port of the complaints concerned mainly the other charges. Therespondent’s own testimony only tended to exculpate him fromany disreputable intention and we have therefore been under nodisadvantage in not having been present when that testimony wastaken. We are satisfied that there was no evidence before theCouncil to support the material facts alleged in the charge. Weobserve that for the respondent, at the conclusion of the caseagainst him, his lawyer, in terms of Disciplinary Regulation 14 (4)submitted that no case had been made out against him. Our opi-nion set out above would indicate that that legal submissionshould have been upheld.
Intervention by certiorari has already been obtained by the res-pondent. While we are not, as stated earlier, in agreement withthe reasons given by the Supreme Court for that intervention, we
Balasundaram v. Raman
259>
are nevertheless satisfied that the court’s intervention was neces-sitated by error of law on the face of’ the record ; and for that,reason the respondent is entitled to two orders, one in the natureof a writ of certiorari to quash the finding of guilty recorded onFebruary 15, 1971 and the other in the nature of a writ of prohi-bition against the taking of any further proceedings in the mattercomplained of against him. The appeal is dismissed with costs ;but we direct that orders be made to give effect to our opinion-set out above.'
Appeal dismissed.