GUNADASA v. ATTORNEY-GENERAL AND OTHERS

013-SLLR-SLLR-1989-V-2-GUNADASA-v.-ATTORNEY-GENERAL-AND-OTHERS.pdf


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GUNADASA
V.
ATTORNEY-GENERAL AND OTHERS
COURT OF APPEAL
A. DE Z. GUNAWARDANA, J.
CA 68/87
NOVEMBER 06 AND 07, 1989
Writ of Certiorari – Whether non observance of principles of natural justice wouldamount to an error on the face of the record – Determination by administrative tribunal- Whether liable to be quashed by Writ of Certiorari.
An, application for a Writ ot Certiorari was made by the petitioner who was astore-keeper attached to the Food Department, to quash the findings and/orrecommendations of the Shortage Committee of the Food Department, that he wasliable for a shortage of rice valued at Rs.437,898/74. The said Shortage Committee
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■ had been appointed under Financial Regulation 104(1)(b).
Held –
That the failure to give the petitioner a fair opportunity to “correct or contradict"the material witnesses when they gave evidence, has occasioned a violation of theprinciples of natural justice; that a man's defence must always be fairly heard. Thenon-observance of the said principles of natural justice, would consequentlyamount to an error on the face of the record, which would attract the remedy ofWrit of Certiorari.
The failure to make available the documents relevant to the defence of thepetitioner, at the hearing, amounted to an error on the face of the record, and1 theWrit of Certiorari would lie in such situations also.
A Writ of Certiorari is available to quash the determination made by anadministrative authority or tribunal.
Cases referred to:
Kanda v Government of Malaya, 1962 AC 322
Rex v St. Lawrence's Hospital Statutory Visitors ex.p. Pritchard 1953 1 WLR1158, 1166
APPLICATION for Writ of Certiorari to quash findings of Shortage Committee
appointed under Financial Regulation.
P. E. V. Gunadasa for Petitioner..
Kalinga indatissa, State Counsel for Attorney-General '
Cur adv. vult.
December 07, 1989.
A. DE Z. GUNAWARDANA, J.
This is an application for a Writ of Certiorari made by the petitioner,to quash the findings and the recommendations of 3rd to 6threspondents, who consisted the Shortage Committee of the FoodDepartment appointed under Financial Regulation 104(1) (b).According to the findings of the said Committee, the petitioner washeld liable for a shortage of rice valued at Rs.437,898/74. thepetitioner also seeks to quash the determination of the 2ndrespondent, the Food Commissioner, surcharging the petitioner thesaid sum based on the findings and recommendations of the 3rd to6th respondents. In addition, the petitioner has prayed for a Writ ofMandamus on the 2nd respondent, directing him to issue a “NoClaim Certificate” to the petitioner.
The petitioner was a store-keeper attached to the FoodCommissioner's Department, and had worked at Clappenburg Stores,Chinabay, Trincomalee, at the relevant time. He was appointed as
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probationary asst, store-keeper on 10.12.58 and continued to servethe department as store-keeper till 8.9.82 when he was compulsorilyretired, on the ground of general inefficiency. At the time of retirementhe was serving as store-keeper, Grade I. Prior to the petitioner beingso retired, charges were framed against him and explanation wascalled for. The petitioner submitted his explanation but was retired forgeneral inefficiency with effect from 8.9.82. His appeals to the PublicService Commission were not successful. After the said retirementand in order to make arrangements for the payment of the pensionthe Food Commissioner wrote to the petitioner by letter dated 14.6.83asking for certain particulars and documents. In addition inquirieswere made as to whether any dues were payable by the petitioner tothe department. As a result of these inquiries certain shortages werereported from stores managed by the petitioner. Hence the paymentof the pension was withheld. Explanation was called for from thepetitioner by letter dated 2.7.83 giving the details of the shortagesdetected at the said stores. Thereafter an inquiry regarding the saidshortages was held by the Shortage Committee of the FoodDepartment consisting of 3rd to the 6th respondents, on 16.9.84. Onan appeal made by the petitioner, the petitioner was given a furtheropportunity of being heard by the same Shortage Committee on15.2.86.
A Writ of Certiorari is prayed for to quash the findings of theShortage Committee on the basis that there are errors on the face ofthe record in the proceedings before the said Committee. Theproceedings of 16.9.84 are produced, marked P17. It appears thatthe petitioner and 3 other asst, store-keepers have been summonedfor this inquiry. The petitioner's evidence has been recorded insummary form and a few answers given to the questions asked bythe Committee are also recorded. This inquiry covers severalshipments received at the stores. Of them I will confine myobservations to the shipments dealt with in file No. H4 and H11,being the subject matter of the claim for shortages made against thepetitioner. With regard to the shipment dealt with in file H4, it isrecorded at the start of the inquiry, that the number of bags of ricereceived is 30133 and the number of bags of rice issued is also30133. This means that the number of bags received and issued arethe same. However in the column where the weight is given it isshown that the amount issued is short by 111 tons 10 cwt 3 qrs and2 1/4 lbs than the amount received. In addition to recording the
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evidence of the petitioner the asst, store-keeper Samaraweera'sevidence has also been recorded. In respect of the shipment of ricereceived on Lanka Rani dealt with the file no. H11, the number ofbags received is 13980 and the number of bags issued is also13980. Here also there is no shortage in the number of bags as inthe earlier case. However, there is a shortage in the weight issued, tothe extent of 79 tons 9. cwt and 1 qrt. In addition to the petitioner,, theasst, store-keeper also has given evidence. He has taken up. theposition that, as he was transferred with effect from 10.7.74 to Boosa,he has not received or issued any stock out of this shipment, andtherefore he is not liable for any shortages in regard to this shipment.The continuation of the said inquiry had taken place on 2.10.84 asevidenced by document, marked 2R1. On that date S. Pathkunam,Asst. Controller of Food, Mulaitivu, who was Asst. Controller of Food,Trincomalee during the relevant period has given evidence before theCommittee. It is important to note that the petitioner was. notsummoned nor was he present at this hearing. A further, sitting of theShortage Committee had taken place on 16.2.85, as evidenced bydocument 2R2. On that date. .T.A. Piyadasa officer in charge of theVeyangoda stores had given evidence. He was officer in charge ofthe Clappenburg stores where the petitioner worked during therelevant period. At this hearing too the petitioner was not present norwas he summoned for the inquiry. Thus it is seen that the petitionerhad no opportunity of clarifying any matter or asking any questionsrelevant to the evidence given by the said two witnesses. In fact,material very relevant to the matters in issue have been spoken to bythe said two witnesses.
It has been said by Lord Denning in the case of Kanda vs.
Government of Malaya (1) that,
"If the right to be heard is to be a real right which is worthanything, it must carry with it a right in the accused man to knowthe case which is made against him. He must know whatevidence has been given and what statements have been madeaffecting him and then he must be given a fair opportunity tocorrect or contradict them."
Hence the failure to give to the' petitioner a fair opportunity to“correct or contradict” the said witnesses when they gave evidence,in my view has occasioned a violation of the principle of naturaljustice, that a man’s defence must always be fairly heard. The non
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observation of the said principle of natural justice, wouldconsequently amount to an error on the face of the record, whichwould attract the remedy of Writ of Certiorari.
Wade dealing with such a situation in his book Administrative Law(5th Edition) at page 419 states,
“Where an administrative act or decision is vitiated by a breachof natural justice, the court may award any appropriateremedies, the remedy will frequently be certiorari to quash, onthe footing that the vitiated decision is void or a nullity."
On an appeal made by the petitioner to the Food Commissioner,the petitioner was given a further opportunity to represent mattersbefore the same Shortage Committee on 15.2.86. These proceedingsare evidenced by document P24. The petitioner’s evidence has beenrecorded in summary form; except for a few questions and answers,none of the other witnesses were available-on that date. After hearingthe petitioner for the 2nd time the Shortage Committee affirmed theearlier findings.
Counsel for the petitioner submitted that the petitioner wasprejudiced and was unable to present his case even on this 2ndoccasion, because he had no access to the relevant documents,particularly, (i) stock books, (ii) log books and (iii) monthly returns. Hepointed out that petitioner had specifically asked for these documentsat this inquiry. At page 3 of the notes of inquiry held on 15.2.86, thepetitioner has taken up. the position that the rice in question was notfit to be issued and that he has stated so in the monthly returns andlog books. He has pointed out that those documents have not beenmade available to him and has taken up the position that if thosedocuments are available, then he could prove the position taken upby him. He has also stated at page 4 of the notes of said inquiry thatrecords of thefts were kept in the log book. He had asserted that ifthe log books are available to him, he would be able to prove that thesaid assertion made by him is borne out by the said documents. Atpage 5 of the said inquiiy notes, he has pointed out that he is unableto give the dates and pages of the record of thefts that took place in1974, as the 1974 log book is not available to him. Counsel for thepetitioner submitted that these instances show that the nonavailability of the documents has gravely prejudiced his defence, andin tact incapacitated him from proving his innocence. He added thatthe contents of those documents would bear out the explanation
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given by the petitioner as to how those shortages would haveoccurred. Counsel submitted that, therefore, there is an error on theface of the record in the failure to make the relevant documentsavailable to the petitioner at the hearing, and that error vitiated thefindings of the Shortage Committee.
Thus it is seen from the evidence of the petitioner, and thesubmissions made by counsel, that the relevant log books, stockbooks and the monthly returns were necessary to prove theexplanations given by the. petitioner for the shortages.
However, the Counsel for the State pointed out that, at page 1 ofthe notes of inquiry on 15.2.86, the petitioner has stated that he ispresenting his case after perusal of the relevant documents and files.But the State Counsel did not dispute the contention of the Counselfor the petitioner, that the particular log books, stock books andmonthly returns asked for by the petitioner were not available to thepetitioner at the said inquiry.
I am of the view that there is merit in the submission that thenon-availability of the said documents prejudice the properpresentation of the petitioner’s defence and that such failure to makeavailable the said documents amounted to an error on the face of therecord.
It has been pointed out by Wade in his book Administrative Law atpage 283-284 that,
"… the ambit of error of law is yvide. It includes, for example,procedural mistakes, and where a tribunal wrongly refused anadjournment which was necessary in order to allow the applicantto produce relevant evidence.”
In my view the situation that arose in this case too is similar andwould be tantamount to an error on the face of the record. Hence onthis ground too a Writ of Certiorari would lie in this case.
There are two important issues involved in this case, one being thealleged loss to the Government in a sum of Rs.437,898/74 and theother being the consequential loss of pension rights of the petitioneras a result of the petitioner being held liable for the said shortages.It is necessary that, if in fact the Government has lost such a largeamount of money, the person responsible must be ascertained andheld liable. On the other hand if the liability cannot be attached to thepeiilioner then it is only fair that he should not be penalised.
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Therefore, it is imperative that a full and a fair inquiry be held to thecircumstances under which those shortages have occurred, and thepersons responsible be held liable. Hence this court will issue a Writof Certiorari quashing the findings and/or recommendations of thesaid Shortage Committee, and direct that a fresh inquiry be held,before persons other than the 3rd to the 6th respondents, since theyhave already formed an opinion. Such inquiry should be conductedwith due regard to the matters I have referred to above.
The petitioner has also prayed for the issue of a Writ of Certiorarito quash the determination made by the 2nd respondent to surchargethe petitioner in the said sum of Rs.437,898/74. This determination isbased on the findings' and the recommendations of the said ShortageCommittee consisting the 3rd to the 6th respondents. In view of thefact that this Court has ordered the quashing of the findings and/orrecommendations of the said Shortage Committee, and a freshinquiry be held, should result in the said determination of the 2ndrespondent also being set aside. Accordingly a Writ of Certiorari isissued to quash the said determination of the 2nd respondent.
It has been held in the case of Rex vs. St. Lawrence's HospitalStatutory Visitors ex.p. Pritchard (2) that a Writ of Certiorari isavailable to quash such determination. Parker J. in the said casestated,
“It cannot be too clearly understood that the remedy by way ofCertiorari only lies to bring up to this court and quash somethingwhich is a determination or a decision.”
As the said determination of the 2nd respondent is quashed and afresh inquiry is ordered, the issue of a Writ of Mandamus as prayedfor by the petitioner requiring the 2nd respondent to issue a "NoClaim Certificate," will not arise.
There will be no order for costs.
Writ of Certiorari issued.