002-SLLR-SLLR-2005-V-3-JINASENA-vs.-UNIVERSITY-OF-COLOMBO-AND-OTHERS.pdf
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Jinasena vs University of Colombo and Others (S. N. Silva CJ.)
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JINASENAVSUNIVERSITY OF COLOMBO AND OTHERSSUPREME COURT.
S. N. SILVA. CJ.
DISSANAYAKE, J ANDAMARATUNGA, J.
SC APPEAL 37A./2005.
CA NO. 1329/2000.
15TH SEPTEMBER, 2005.
Writ of Certiorari – Termination of services of a university officer • Lack ofsufficient material – Participation of University Council Members at thepreliminary inquiry ■Validity of termination.
The petitioner was acting Registrar of the University of Colombo, appointed bythe University Grants Commission. The Council of the University held a
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domestic inquiry against the petitioner and on the basis that the availablematerial established a prima facie case, interdicted the petitoner by documentP8, served a charge sheet P9, and terminated his services by document P10.
HELD:
There was no consideration of the material on which the charge sheetwas made. The Attorney-General who was consulted advised that dueto insufficiency of material, he was unable to advise on specific charges.
The 6th, 7th and 11th respondents, members of the Council werewitnesses at the domestic inquiry; hence the termination of servicesfollowing the charge sheet P9 was ultra vires and void for contraventionof the rules of natural justice.
The Court of Appeal erred in holding that there was no requirement thatthe charge sheet should be approved by the Council.
The petitioner was entitled to a writ of certiorari quashing the documentsP8, P9 and P 10, as the Court of Appeal had failed to consider theserious consequences to the petitioner by refusing the writ.
APPEAL from the judgment of the Court of Appeal.
R. Chula Bandara with Kushani Harasgama for appellant.
Anil Gunaratne, Deputy Solicitior General for 1st and 3rd to 15th respondents.
Cur.adv.vult.
15th September, 2005.
S.N. SILVA CJ.
This is an appeal from the judgment of the'Court of Appeal dated
The matter was considered at the time special leave to appealapplication was supported and the Court granted special leave to appealon the following three questions :
In view of the contention in the 2nd paragraph found in the chargesheet (P9) issued by the 2nd Respondent and in the absence ofany minute to support such decision of the Governing Council ofthe 1 st Respondent, did the Court of Appeal err in coming to the
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Jinasena t/s. University Colombo and Others (S. N. Silva CJ.)
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conclusion that there was no requirement for the charge sheet(P9) to be approved by the Governing Council and accordingly theissuance of the charge sheet (P9) by the 2nd Respondent waswithin the lawful authority and the powers and functions of the 2ndRespondent?
Did the Court of Appeal misdirect itself in coming to the conclusionthat there was no breach of the rules Of natural justice althoughthe 6th, 7th and 11 th Respondents who were witnesses were alsomembers of the Council that made the decision set out in P 10?
Did the Court of Appeal misdirect itself by considering extraneousmatters disregarding serious conquences to the Petitioner?
The Petitioner joined the University of Peradeniya as a TemporaryAssistant Lecturer on 28.12.1970 and continued in that capacity till31.10.1972'. On 16.11.1972 he was appointed as Administrative Assistantin the University Registry. On 15.12.1986 he was appointed as DeputyRegistrar. Thereafter he has acted on numerous occasions as the Registrar.He was appointed as Deputy Registrar by the University GrantsCommission. Whilst serving as Acting Registrar attached to the Universityof Colombo, the Petitioner was interdicted from service by document P8dated 09.08.1999. A charge sheet was issued on him on 24.09.1999(document marked P9) After inquiry his services were terminated on
(by document P10). The Petitioner has filed the application inthe Court of Appeal to quash the said three decisions as contained indocuments P8 to P10.
The Petitioner has challenged the validity of documents P8 and P 9 onthe basis that although these documents issued by the Vice Chancellorrefer to decisions made by the Council of the University, in fact there wereno such decisions. The Petitioner has urged this ground belatedly sincehe was unaware of the absence of any decision until the matter came upat the disciplinary inquiry. It is conceded by the Deputy Solicitor Generalthat the only minute of the Council is document P11. The genuineness ofP 11 has been challenged by the Petitioner on the basis that it is notpasted in the Minutes Book of the minutes of the Council and that it wasfound in the form of two loose sheets. A formal minute of the Councilappears in the manner as seen in the document P19 which gives inter aliathe persons who were present at the meeting including their designations.
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P 11 does not contain any such particulars. In any event, the relevantportion of P11 which comes under the heading “Sub Committee Report”records that a report had been sent to the Attorney General who hasindicated that there was a prima facie case for interdiction. The advice ofthe Attorney General is contained in the letter dated 05.07.1999 (P12)which only states that the Attorney General is of the view that the evidencediscloses irregularities which concern the Petitioner but that he is unableto advise on the specific charges for the reason that the disciplinary rulesapplicable to the University and the entirety of the evidence has not beenmade available. It appears that thereafter the advice of the Attorney Generalhas not been sought on the matter. In the circumstances, to say the least,the statement in P 11 that the Attorney General indicated that there is aprima facie case which warranted interdiction is not correct.
Furthermore, the document P9 being the charge sheet commenceswith a paragraph.which reads as follows,: “The Council having consideredall relevant material and the findings consequent upon investigations, hasnow decided to issue you with the statement of charges to direct you toshow cause why disciplinary action should not be taken against you…”, isbasically without foundation since even in the disputed minute the Councilhas not made a decision to frame charges against the Petitioner. It merelyrecords that the Petitioner be placed under interdiction and That the legalprocedure required in this connection should be followed”. The Councilcould not have approved any charges that were not submitted to it.
In the circumstances, we are of the view that the statements in P 9 andP10 as to approval by the Council are not supported by the availablematerial. The Council is the proper disciplinary authority in terms of thesecond proviso to section 75 of the Universities Act No. 16 of 1970 (A).The Petitioner has adduced evidence to establish that a previous delegationof such disciplinary authority to the Vice Chanceller had been withdrawnby the Council. This evidence is not disputed. In the circumstances, weare of the view that the Petitioner has established that the decisions in P8and P9 have not flowed from proper authority namely, the Council of theUniversity and as such are ultra vires and liable to be quashed by a Writ ofCertiorari.
We have next to consider the validity of.the termination as contained indocument P 10. The termination has in fact been done on a decision of the
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Jinasena vs University of Colombo and Others (S. N- Silva CJ.)
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Council. The Petitioner challenges the validity of the termination on theground that three members of the Council who were present at the timethe decision was made and in fact took part in that decision were alsowitnesses at the preliminary and/or the domestic inquiry against thePetitioner. The 6th and 7th Respondents being members of the Council infact gave evidence at the domestic inquiry. The 4th, 9th and 11 thRespondents who were also members of the Council and took part in therelevant decision had made statements at the preliminary inquiry. ThePetitioner has therefore challenged the decision P 10 on the basis that itis ultra vires and in contravention of the principles of natural justice sincethe witnesses themselves have in fact finally been party to the decision toterminate the Petitioner’s services. The Court of Appeal has sought tojustify such a course of action on the basis that the decision of the Councilhas been unanimous and that there is no evidence that the 6th, 7th and •11 th Respondents in any way influenced that decision to be made againstthe Petitioner. However, we are of the view that it is unnecessary for thePetitioner to adduce such evidence which would not be within his control,having not been present at the meeting. The decision perse is tainted bythe fact that persons who were witnesses at the inquiry were finally partyto the decision to terminate the services. Accordingly the decision P 10 isliable to be quashed by a Writ of Certiorari on the ground that it is contraryto the principles of natural justice.
For the reasons stated above, we allow the appeal and set aside thejudgment of the Court of Appeal dated 13.05.2003, the findings are basedon questions (a) and (b) stated above on which leave has been granted.We direct the issue of a Writ of Certiorari as prayed for in paragraph (b),
, and (d) of the prayer to the petition dated 15.11.2000 filed in the Courtof Appeal. There will be no order for costs in the Court of Appeal and in thisCourt.
N. E. DISSANAYAKE, J. – I agree.N. G. AM ARATUNGA, J. – / agree.Appeal Allowed.
2- CM 7216