LINUS SILVA, Petitioner, and UNIVERSITY COUNCIL OF THE VIDYODAYA UNIVERSITY an

017-NLR-NLR-V-64-LINUS-SILVA-Petitioner-and-UNIVERSITY-COUNCIL-OF-THE-VIDYODAYA-UNIVERSITY-an.pdf


104
Linus Silva v. University Council of the Vidyodaya University
1961Present: T. S. Fernando, J.
LINUS SILVA, Petitioner, and UNIVERSITY COUNCIL OP THEVIDYODAYA UNIVERSITY and others, Respondents
S. C. 378 of 1961—In the matter of an Application for the issue ofmandates in the nature of a Writ of Certiorari and a Writ of Mandamusin terms of Section 42 of the Courts Ordinance {Cap. 6)
Certiorari—Conditions necessary for issue of writ—Scope of remedy where alternativeremedy is available—“ Duty to act judicially ”—Professor of VidyodayaUniversity—Dismissal from office without defence being heard—Proper remedy—Vidyodaya University and the 'VidyalanJcara University Act, No. 45 of 1958,ss. 11 (3), 13, 17, IS, 31, 01—Industrial Disputes Act, No. 43 of 1950 (asamended by Act No. 62 of 1957), s. 31 B.
Section 18 of the Vidyodaya University and the Vidyalankara UniversityAct, No. 45 of 1958, empowers tho Council “ to suspend or dismiss any officeror teacher on tho grounds of incapacity or conduct which, in the opinion ofnot loss than two-thirds of the members of the Council, renders him unfit to bean officer or teacher of the University. **
Held, that the power of the Council to determine the unfitness of an officer orteacher is qualified by the words “ on the grounds of incapacity or conduct ”.In deciding whether incapacity or misconduct exists the Council is required to actjudicially, and not administratively, at tho Btage of ascertaining objectively thefacts as to incapacity or misconduct. Failure, therefore, to give an officer ortonchor an opportunity of being heard in his defence before his appointment isterminated would render the Council amenable to a writ of certiorari.
Held further, (i) that when the Council purports, by its conduct, to haveterminated the appointment of an officer under clause {c) of section 18 it cannotsubsequently take up tho position that tho officer must in law be considered tohave been dismissed by virtue of the power vested in it by clause (/) of section18.
(ii) that the rule that the remedy by way of certiorari is not available wherean alternative remedy is open to the petitioner is subject to the limitation thattho alternative remedy must be an adequate remedy. Accordingly, wherea Professor appointed under section 31 of the Vidyodaya University and theVidyalankara University Act is wrongfully dismissed without his defence beingheard by tho Council, he may seek his remedy by way of certiorari althoughtho loss adequate remedies by way of an action for damages for wrongful dis-missal and by way of proceedings under section 31A of the Industrial DisputesAct No.43 of 1950 (as amended by Act No. 62 of 1957) may also be available tohim.
Applications for a writ of certiorari and a writ of Mandamus.
H. V. Perera, Q.C., with M. Tiruchelvam, Q.G., M. L. de Silva,
T.Devarajah, U. B. Weerasekera, and A. Wijesekera, for the petitioner.
H. W. Jayewardcne, Q.C., with D. S. Wijeivardene and RanjitDheeraratne, for the respondents.
Cur. adv. vult.
T. S. FERNANDO, J.—Linus SHva v. University Council of105
the Vidyodaya University
November 20, 1961. T. S. Fernando, J.—
The Vidyodaya University and the Vidyalankara University Act,No. 45 of 1958, which became law on December 19, 1958, provided for theestablishment, inter alia, of a University called the Vidyodaya Universityof Ceylon. Part III of that Act relates to the constitution of the Univer-sity Authorities, and section 13 thereof declares that the Authorities ofthe University shall be the Court, the Council, the Senate, the Faculties,the General Board of Studies and Research, and such other bodies asmay be prescribed by Statute as authorities of the University. Section17 (2) describes the persons who shall constitute the membership of theCouncil, while by section 17 (1) the University Council is declared to bethe executive body of the University. The 2nd to the 20th respondentsto the application before me were the members of the Council at all timesrelevant thereto. The 1st respondent is the Council itself.
Section 31 of the Act provides that the appointment of a Professor orLecturer in the University shall be made by the Council. The petitionerclaims that on May 15,1959, he was appointed by the Council as Lecturer,Grade I, and as Head of the Department of Economics. He claimsfurther that on October 1, 1960, he was promoted as Professor and Headof the Department of Economics and Business Administration. Herelies on two documents, “ A ” and “ B ” attached to his petition asevidencing his appointment. These documents are reproduced below :
Document “ A ”
VIDYODAYA UNIVERSITY OF CEYLON
Colombo 10,
1st September, 1960.
Linus Silva, Esq.,
Head of the Dept, of Economics,
Colombo.
POST OF PROFESSOR AND HEAD OF THE DEPT. OFECONOMICS AND BUSINESS ADMINISTRATION
In pursuance of the decision of the Council to establish a Dept, ofBusiness Administration in order to widen the scope of the Dept, ofEconomics, I am pleased to promote.you to the Post of Professor andHead of the Depts. of Economics and Business Administration with effectfrom 1st October, 1960. The salary scale attached to the post is Rs. 15,0004 of Rs. 600 and 4 of Rs. 900, Rs. 21,000. You will be entitled to costof living, special living, and rent allowances according to GovernmentRates. You will continue to be a contributor to the University Provi-dent Fund.
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T. S. FERNANDO, J.—Linus Silva v. University Council of
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This promotion is, however, subject to the passage of the UniversityBudget for 1960-61.
Please acknowledge receipt of this letter. I shall be glad if you willplease undertake the reorganisation of the Departments immediately sothat the two Departments will commence academic work for the begin-ning of the Third Academic Year.
Sgd. Dbarmasastronnatikami,
Vice-Chan cellor.
Document “ B ”
Room 250, Bank of Ceylon Building,Colombo 1,
2.9.60.
The Ven. Vice-Chancellor,
Vidyodaya University of Ceylon,
Maligakanda,
Colombo 10.
Ven’ble Sir,
POST OF PROFESSOR AND HEAD OF THE DEPT. OFECONOMICS AND BUSINESS ADMINISTRATION
I acknowledge with thanks your favour of the 1st September, 1960.and I am pleased to accept the above appointment with effect from 1stOctober, I960.
Yours faithfully,
Sgd. Linus Silva,
Head of the Department of Economics.
The Vice-Chancellor, the 2nd respondent, who has signed document“ A ” is by virtue of section 11 (3) of the Act Chairman of the Council.It is his statutory duty to convene all meetings of the Council, to securethat the provisions of the Act and of the Statutes, Regulations and Rulesare duly observed, to give effect to the decisions of the Council regardingthe appointment, dismissal or suspension of the officers and teachers ofthe University and to exercise general supervision over the educationalarrangements of the University.
It is not disputed that after the letters “ A ” and “ B ” had passedbetween the 2nd respondent and the petitioner the latter did functionas Professor and Head of the Department of Economics and BusinessAdministration. On July 4, 1961, the 2nd respondent, as Vice-Chancelloraddressed the letter “ E ” to the petitioner informing him that the Council
T. S. FERNANDO, J.—IAnus Silva v. University Council of
the Vidyodaya University
107
at a meeting held that day had unanimously resolved to terminatehis appointment in the University as from that day. That letter isreproduced below :—
Document “ E ”
VIDYODAYA UNIVERSITY OF CEYLON,
Colombo 10,4th July, 1961.
Mr. Linus Silva,
P.O. Box 1342,
Colombo 1.
Dear Sir,
Termination of Appointment
You are hereby informed that the Council at its meeting held on the4th of July, 1961, has unanimously resolved to terminate your appointmentin the University as from today.
The Council has also decided to pay a sum equivalent to three months’salary less whatever amounts are due from you. The total now due isRs. 1,151 *15, as shown in the Schedule hereunder.
I am hereby conveying to you the decision of the Council. 5I enclosethe cheque No. D/9 207613 for Rs. 3,346*15 (Three thousand threehundred and forty-six Rupees and Cents Fifteen only) ; being thebalance due to you in terms of the decision of the Council.
Any books, answer scripts or other property of the University now inyour custody should be returned by you.
(Sgd.) Dharmasastronnatikami,
Vice-Chancellor.
Schedule referred to :—
Rs. c.
Allowance as Head of Department overpaid since appoint-ment as Professor, October, 1960 to June, 1961..9000
Cost of Telegrams, paid from Petty Cash ….565
Due on account of sale of Publications….100
Lectures delivered by Mr. K. T. R. de Silva in February, 196123550
Total due ..1,151 15
The petitioner contends that in terminating his appointment the res-pondents have acted wrongfully and unlawfully and also in violation of therules of natural justice by not making the petitioner aware of the natureof the accusations against him and also by not affording him an opportu-nity of being heard in his defence. Various allegations, e.g, of bias have
108T. S. FERNANDO, J.—Lintis Silva v. University Council oj
the Vidyodaya University
been, included in the petition and affidavit presented to this Court bythe petitioner, and some of these have been refuted by affidavits presentedby the respondents. It does not become necessary to examine and con-sider any of the allegations on the present application except that whichis designed to show that the order embodied in letter “ E ” was made inviolation of tbe rules of natural justice. Learned counsel appearing forthe respondents admitted that the petitioner was not informed of theaccusations against him and was not afforded any opportunity of defend-ing himself against them. He contended however that the violation ofnatural justice, the non-observance of the audi alteram partem rule, isirrelevant in the pres ent case where the respondents in dismissing thepetitioner were acting not in a judicial or quasi-judicial capacity butpurely in an administrative capacity. He submitted, for that reason,that their action was not liable to be canvassed by way of certiorari.Learned counsel for the j>etitioner, while not disputing that in decidingwhether the petitioner was unfit to be a teacher of the University theCounoil acts in an administrative capacity, argued that in making thatadministrative decision as to unfitness the relevant law required theCouncil to ascertain the existence of certain facts objectively, and thatin the ascertainment of these facts the Council was required to actjudicially. It can hardly be doubted that, if in the process of arriving ata decision as to unfitness of the petitioner to remain as. a teacher theCouncil is throughout acting in an administrative capacity, there is noroom for the requirement of the observance of the rules of natural justice.The application therefore turns on the question whether at any stage inarriving at the administrative or subjective decision as to unfitness theCouncil is required to consider certain matters judicially. If so, theCouncil would be amenable to certiorari. If not, this application mustfail.
The general principle which forms the basis of the jurisdiction of thisCourt to grant the remedy of certiorari is best stated in the oft-quotedwords of Atkin L. J. in Rex v. Electricity Commissioners ; Ex-parte LondonElectricity Joint Committee 1:—
“ But the operation of the writs (of prohibition and certiorari) hasextended to control the proceedings of bodies which do not claim to beand would not be recognised as courts of justice. Whenever any bodyof persons having legal authority to determine questions affecting therights of subjects, and having the duty to act judicially act in excessof their legal authority they are subject to the controlling jurisdictionof the King’s Bench Division exercised in these writs.”
Before a body of persons may be made amenable to this remedy, it hasto be shown not only that such body has legal authority to determinequestions affecting the rights of subjects but it must also be shown that thebody is required to act judicially. Where these two conditions can beshown to exist, the legal authority of the body attracts to itself the duty
1 (1924) 1 K. B. at 205.
T. S. FERNANDO, J.—Linus Silva v. University Council of
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to observe the rules of natural justice and a non-observance thereof consti-tutes one method of exceeding its jurisdiction. That the Council of theUniversity has legal authority to determine questions affecting the rightsof subjects is undeniable. Is it required to act judicially in determiningsuch questions 1
The circumstances in which a person or body of persons is requiredto act judicially came to be examined by the Queen’s Bench Divisionin R. v. Manchester Legal Aid Committee1 where Parker J. (as he then was)reading the judgment of the Court stated :—
“ The true view, as it seems to us, is that the duty to act judiciallymay arise in widely different circumstances which it would be impossi-ble, and, indeed, inadvisable, to attempt to define exhaustively.Where the decision is that of a court then, unless, as in a case, forinstance, of justices granting excise licences, it is acting in a purelyministerial capacity, it is clearly under a duty to act judicially. Whenon the other hand, the decision is that of an administrative body andis actuated in whole or in part by questions of policy, the duty to actjudicially may arise in the course of arriving at the decision. Thus,if, in order to arrive at the decision, the body concerned has to consider.proposals and objections and consider evidence, then there is a dutyto act judicially in the course of that inquiry. ”
Again, in relation to a matter to which I shall advert later, at page 490 :—
“ If, on the other hand, an administrative body in arriving at itsdecision at no stage has before it any form of lis and throughout hasto consider the question from the point of view of policy and expediency,it cannot be said that it is under a duty at any stage to act judicially :compare Franklin v. Minister of Town and Country Planning2. ”
The relevant section—section 18—of the Vidyodaya Universityand the Vidyalankara University Act, No. 45 of 1958, empowers theCouncil “ to suspend or dismiss any officer or teacher on the grounds ofincapacity or conduct which, in the opinion of not less than two-thirdsof the members of the Council, renders him unfit to be an officer or teacherof the University. ” Whether the extent of the incapacity or misconductreaches that stage at which the required majority of the members of theCourt considers the officer or teacher in question unfit is a question to bedetermined solely by the members of the Council in their discretion.But whether incapacity or misconduct is established—whatever be itsextent—appears to me no more than the ascertainment of an objectivefact.
It is submitted on behalf of the petitioner that he was (and in law stillis) a teacher of the University within the meaning of the expression“ teacher ” appearing in the interpretation section 61 of the Act. Hewas employed and paid by the University, although in accordance withhe procedure laid down by Statute (section 31) he is appointed by theCouncil which is but one of the authorities of the University. The
1 {1952) 1 A. E. It. 480 at 489.2 {1947) 2 A. E. R. at 289.
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T.. S. FERNANDO, J.—Linus Silva v. University Council of
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submission that the petitioner was a teacher is disputed by the respondents,but for reasons which will be indicated by me later in connection withanother argument on behalf of the respondents I am satisfied that thesubmission is well founded.
The question whether the Council is at any stage of the decision as tounfitness required to act judicially must ultimately rest on the constructionof the relevant words of the Statute reproduced by me above, but, howeverconsidered, the power to dismiss an officer or teacher on grounds of in-capacity or misconduct can never, in my opinion, be construed as im-plying a power to dismiss merely on allegations of incapacity or mis-conduct. There must be proof of incapacity or misconduct, or at anyrate some incapacity or misconduct must exist, although the membersof the Council are constituted the judges both of their existence and oftheir sufficiency. Mr. Pcrcra referred me to certain observations made byLord Cohen in the course of the opinion he delivered in the House ofLords in Vine v. National Dock Labour Board 1, a case in which also thequestion arose whether in exercising a particular power conferred byvirtue of a statute a certain body was acting in an administrative asopposed to a judicial capacity. In reaching a conclusion that the bodyconcerned in that particular case was acting in a judicial capacity thatlearned judge, in stating one of his reasons for that conclusion, observed :—“ The significant language is, I think, as follows :—(a) In cl. 15 (1)and (2) the words ‘without adequate cause’. The determinationof whether there is adequate cause seems essentially a proper matterfor decision judicially. ”
In the case of De Verteuil v. Knaggs 2, where power was given in an ordi-nance to the Governor of Trinidad “ on sufficient ground shown to hissatisfaction ” to transfer the indenture of immigrants from one employerto another, the Privy Council expressed the opinion that although nospecial form of procedure was prescribed there was, apart from specialcircumstances, a duty of giving to any person against whom a complaintwas made a fair opportunity to make any relevant statement which homay desire to bring forward and a fair opportunity to correct or contro-vert any relevant statement brought forward to his prejudice.
Certain local cases also bear on the question that calls for decision onthe present application. The situation that must arise when the Univer-sity Council is considering an exercise of the power of suspension or dis-missal is not in essence different from the situation in which a Ministeris placed in exercising his powers of dissolution of a Council or removalof a Chairman or members of a local authority under either section 197 ofthe Town Councils Ordinance, No. 3 of 1946, or section 61 of the VillageCommunities Ordinance. The relevant words of the sections in theseOrdinances were :—
“ If at any time the Minister is satisfied that there is sufficient proofof .. •…, the Minister may …. by Order published in
the Gazette, remove the Chairman from office. ”
1 {1056) 3 A. E. E. at 947.3 (1918) A. C. at 557.
Ill
T. S. FERNANDO, J.—Linus Silva v. University Council of
the Vidyodaya University
As Gunasekara J., in Subramaniam v. Minister of Local Government andOultural Affairs J, in rejecting an argument that because in the exerciseof his j discretion to make an Order under the provision of law referred toabove the Minister may take into account considerations of policy andexpediency and therefore certiorari does not lie to review such an Order
stated, “Ibefore the Minister can make an Order-in the exercise of his
% , * !
discretion he must decide on evidence whether there is proof of thenecessary facts, and at that stage he has a duty to act judicially ”.Then again, in the case of The University of Ceylon v. Fernando2 wherethe expression that came on for interpretation was “ where the Vice-Chancellor is satisfied that any candidate for an examination has acquiredknowledge of the nature or substance of any question or the content ofany paper before the date and time of the examination, or hasattempted or conspired to obtain such knowledge, the Vice-Chancellormay suspend the candidate …”, the Supreme Court, reversing the
view taken by the District Judge, held' that the Vice-Chancellor’s func-tions were not administrative but quasi-judicial. At the appeal taken tothe Privy Council from the decision of the Supreme Court, the appellant’scounsel disclaimed the contention that the Vice-Chancellor’s functionsunder clause 8 were administrative and not quasi-judicial. InSugathadasa v. Jayasinghe and The Minister of Local Government3 , wherethree judges of this Court were called upon to decide whether, inexercising his powers of dissolution of a Municipal Council, the Ministerunder section 277 (1) of the Municipal Council Ordinance, No. 29 of1947,iwas required to act judicially or quasi-judicially, the Court observedthat “ the ultimate test is, what did the legislature really intend by thelanguage used. It may be stated as a general rule that words such as
where it appears to
or
of
c<
or
“if
if it appears to the satisfaction
if the …. considers it expedient that
or " it the …. is satisfied that ….”
standing by themselves without other words or circumstances ofqualification, exclude a duty to act judicially ”. In the case before methe power of the Council to determine the unfitness of an officer or teacheris qualified by the words “ on the grounds of incapacity or conduct ”and, it seems to me, that the power can be exercised only where in-capacity or misconduct exists whatever be the extent of that incapacityor misconduct. Therefore, although the Council is the judge of theextent of the incapacity or misconduct, in deciding whether incapacityor misconduct exists the Council is required to act not administratively,but judicially.
Mr.. Jayewardene, for the respondents, sought to find principally incertain observations of Canekeratne, J. in Suriyawansa v. The LoctdGovernment Service Commission 4 as well as in the opinion of the Board
M1957) 59 N.L.R. 254 at 260.* {I960) 61 N. L. R. 505 at 512.
a (1958) 59 N. L. R. 457 at 471.
* (1947) 48 N. L. R. at 438.
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of the Judioial Committee of the Privy Council in Nakkuda Ali v. Jaya-ralne 1 support for his contention that the respondents were throughoutacting in an administrative capacity and nothing more. There is pointin Mr. Perera’s suggestion that the observations of Canekeratne J. wentbeyond the necessities of that particular case, and it must not be over-looked that the correctness of the view taken in Suriycuoansa's case(supra) was doubted by Nagalingam J. in the case of Abeyagunasekera v.Local Government Service Commission I 2, although the observations ofNagalingam J. in the case last-mentioned were themselves obiter. Thedecision in Nakkuda Ali’s case (supra) has itself been the subject ofno little controversy, but it is necessary to remember that the decisionfollowed the view expressed by Their Lordships that when the Controlleris cancelling a licence he is not determining a question, but is takingexecutive action to withdraw a privilege because he believes and hasreasonable grounds to believe that the holder is unfit to retain it. Thesecases are not, in my opinion, of real assistance in the actual controversy.that arises on the present application. Nor do I think that two othercases—English cases—cited by Mr. Jayewardene assist in the determi-nation of the question whether the Council was throughout actingadministratively. They were relied on for the proposition that wheredisciplinary action is taken against a person, the validity of the actioncannot be questioned by way of certiorari. In R. v. Metropolitan PoliceCommissioner, ex-parte Parker3, which relates to the case of a cabdriver who had his licence revoked by the proper police authority, thedecision appears to me to have rested—as is seen in the judgment ofDonovan J. at page 721—on the ground that the revocation of a licenceis a purely administrative act. In the other case relied on, ex parteFry 4, a writ of certiorari had been applied for to quash an order of acaution to be administered to a person in the service of a fire-brigade.There Lord Goddard C. J. in the Queen’s Bench Division stated that itseemed to him impossible to say where a chief officer of a force which isgoverned by discipline, as is a fire-brigade, is exercising disciplinaryauthority over a member of the force, that he is acting judicially orquasi-judicially. While it is not easy to find an analogy between thecase of a dismissal of a University professor on grounds of incapacity ormisconduct and that of a caut.on administered to a member of a fire-brigade service merely because both are in a sense examples of disciplinaryaction, it is necessary to remember that in the Court of Appeal Singleton
J., with whom two other judges agreed, decided against the issue of awrit of certiorari not on the ground that the writ does not lie, but that theremedy is discretionary and should not be granted in the particular case.
I should now revert to the question to which I have made some re-ference earlier, viz., the existence at some stage of a lis before the Councilwinch attracts to it the duty on the part of the Council to act judicially.
Where the administrative process and the quasi-judicial process are so
3(1953) 2 A. E. R. at 717.
4(1954) 2 A. E. R. at 118.
'(1950) 51 N.L. R. 457.
2 (1949) 51 N. L. R. 8.
T. S. FERNANDO, J.—IAm.ua Silva v. University Council of
the Vidyodaya University
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intermingled that the product is, as one eminent English judge hasstated, a hybrid operation, it may not be easy to make a strict demar-cation of the points at which the administrative process is stayed, thejudicial process is brought on, and thereafter the administrative processis resumed ; it is nevertheless not difficult to envisage at the stage ofdeciding the existence of incapacity or misconduct the arising of aprocess in the nature of a prosecution or proposition which requiresfor its consideration something in the nature of a defence or arefutation or negation thereof. If lis in this context is to be giventhe very strict and technical meaning it bears in court litigation, it willbe difficult to discover the existence of such a lis in the processes con-sidered in the cases of (1) R. v. Postmaster-General ; ex parte Carmichael 1and (2) R. v. Boycott; ex parte Kennedy 2, cases dealing with the issue ofmedical certificates, in both of which the process was held to be in thenature of a judicial act. Whatever name be given to the process, theoperation involved cannot be performed without a consideration ofmatters not only in support of the proposition but also of those againstit. The latter cannot properly be considered without an opportunitybeing afforded for their presentation.
For the reasons which I have endeavoured to set out above, I am ofopinion that the Council was under a duty to act judicially at the stage ofascertaining objectively the facts as to incapacity or misconduct. Thenon-observance of the rules of natural justice being admitted by therespondents in this case, the petitioner is, in my opinion, entitled to a grantof a mandate in the nature of a writ of certiorari to quash the order ofdiscontinuance of his services as a teacher, subject however to a consi-deration of other objections raised on behalf of the respondents to sucha grant. I shall therefore now address myself to these other objections.These objections were three-fold in character :—(a) that the petitionermust in law be considered to have been appointed under the power vestedin the Council by clause (/) of section 18 of the Act, {b) that the petitionerhas by his conduct acquiesced in the order of discontinuance of his servicesand is therefore not entitled to the remedy sought, and (c) that this remedyis not available where other remedies can be shown to be available.
In regard to the first objection, my attention has been drawn to section33 of the Act which requires every appointment of a teacher to be uponagreement in writing between the University and the teacher. If theprocess of suspension or dismissal of a teacher can be said to attract atsome stage the duty to act judicially (section 18 (e)), it has been con-tended that no such duty arises in the case of suspension or dismissalof persons in the employ of the University other than officers or teachers(section 18 (/)). The distinction between clauses (e) and (/) in section18 is itself significant as indicative of a distinction in rank or statusbetween officers and teachers as defined in section 61 and ordinaryemployees. In the case of the latter, suspension or dismissal can be
1 (1928) 1 K. B. at 291.
* (1939) 2 K.B.ai 651.
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effected presumbly on any ground, while in the case of the formerthat can be done only on grounds of incapacity or misconduct. Onbehalf of the respondents it has been submitted that there is a specialform of agreement teachers are required to enter into and that thepetitioner has failed and neglected to sign that form of agreement. Thepetitioner denies knowledge of any request made to him by the Universityauthorities to sign such a form of agreement. It is unnecessary for meto decide between the parties on the question of the request to'signthe special form of agreement because, in my opinion, not only is therein existence a sufficient agreement in writing in relation to the appoint-ment of the petitioner, but also I am satisfied that the respondentscannot, having regard to their conduct, now be heard to say that thepetitioner was dismissed by virtue of the power vested in the Council byclause (/) of section 18. Documents “A” and “B” reproduced earlierin this judgment provide in this case, in my opinion, a sufficient agreementwithin the meaning of section 33. Not only is it not denied that the. petitioner has in fact functioned as Professor and Head of a Faculty inthe University after “ A ” and “ B ” passed between the Vice-Chancellorand the petitioner, it is also quite apparent from the Council’s own replyto certain members of the Tutorial Staff of the Faculty concerned thatthe Council itself considered that action was taken in this case in termsof clause (e) of section 18. This reply which is the document “ G ”attached to the petitioner’s affidavit is reproduced below, and the state-ment contained therein that “ the termination of services of Mr. LinusSilva was decided upon in terms of section 18E of the University Acton adequate evidence placed before it ” is itself revealing in regard to theprocess followed, viz., the hearing of evidence placed before the Counciland a consideration of its adequacy, a process during which a Vis in thosense indicated earlier had, in my opinion, arisen.
Document “ G ”
VIDYODAYA UNIVERSITY OF CEYLON.
Colombo 10*July 13th, 1961.
Dr. W. M. Tilakaratne,
Central Bank of Ceylon,
Colombo.
Dear Sir,
The Council at its meeting on 12/7/61 considered your letters of the6/7/61 and of 11/7/61,
I am directed by the Council to inform you that the termination ofthe services of Mr. Linus Silva was decided upon in terms of Section1SE of the University Act on adequate evidence placed before it. TheCouncil therefore regrets its inability to vary its decisions.
T. S. FERNANDO, J.—Linus Silva v. University Council of
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With regard to Prof. Mukerji, the Council unanimously decided torequest Prof. Mukerji to reconsider his decision. A copy of a letteraddressed to him is annexed for your information.
I shall be thankful if you will bring this letter to the notice of the othersignatories.
Dharmasastronnatikami,Vice-Chancellor.
The first objection must therefore fail.
In regard to the second objection, it was argued that the petitionerhas accepted the balance salary due to him as computed in the mannerindicated in letter “ E ” of 4th July, 1961, and has therefore acquiescedin the termination of his services. It is pointed out that the chequefor Us. 3,346/15 sent to him with that letter has been credited by thepetitioner to his bank account. I am unable to see any substance inthis objection where the petitioner claims his services have been termi-nated otherwise than as provided by law. Where his position is thathe is still lawfully in the service of the University, he is quite entitledto utilize the salary paid to him.
The third objection is that the remedy by way of certiorari is notavailable where other remedies are open to the petitioner and it has notbeen shown that he has availed himself of these. It is contended thatthe relationship between the University and the petitioner was thatbetween employer and employee and that therefore he must seek hisremedy at common law which is an action for damages for wrongfuldismissal. Mr. Perera’s reply to this contention was that it is not opento the petitioner to obtain a reinstatement in service by recourse tothe common law remedy which is confined to an award of damages.I agree with Mr. Perera’s submission that to disentitle a petitioner tothe remedy by certiorari the alternative remedy must be an adequate• remedy. If a person can establish that he has been wrongfully dismissedthere may well be many cases where damages can never form anadequate remedy. Morever, as Gratiaen J. pointed out in Sirisenav. Kotawera-ZJ dagama Co-operative Stores Ltd. 1, the alternative remedyrule is not a rigid one. In regard to this third objection to the grantingof this application, Mr. Perera relied strongly on the House of Lordsdecision in Vine v. National Dock Labour Board {supra) which dealtwith the question whether damages were an adequate remedy in thecase of the dismissal of a dock worker registered in the reserve pool bythe National Dock Labour Board under a scheme set up by a Statutory
* {1949) 51 N. L. R. 263.
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T. S. FERNANDO, J.—Linus Silva v. University Council of
the Vidyodaya University
Order. The dismissed worker claimed damages for wrongful dismissaland a declaration that his purported dismissal was illegal, ultra viresand invalid. The Queen’s Bench Division granted him damages and thedeclaration, but on an appeal by the National Board to the Court ofAppeal the declaration was struck out. On the worker taking an appealto the House of Lords, the Hohse, while observing that the grantingof a declaration was discretionary, nevertheless granted it becauseTheir Lordships were of opinion that the award of damages in thatcase was not an adequate remedy. In the course of his opinion expressedin that case Lord Keith observed that the relationship between theNational Board and the worker in that case was not a straightforwardrelationship of master and servant, and Mr. Perera argued that in thecase of the petitioner too it was not the ordinary relationship betweenemployer and employee. I do not feel called upon to discuss this matterat any length as I am satisfied that in the case of a dismissal of a personin the situation of the petitioner the common law remedy is not anadequate remedy.
Mr. Jayewardene, however, has contended that, apart from the commonlaw remedy, it is open to the petitioner to take his grievance to a LabourTribunal established under section 31A of the Industrial Disputes Aot,No. 43 of 1950, as amended by the (Amendment) Act, No. 62 of 1957.Under section 31B of that Act, it is open to a workman to make anapplication to a Labour Tribunal for relief or redress in respect of thotermination of his services and it is not doubted that the LabourTribunal has a power to order reinstatement of a workman. Mr. Jaye-wardene contended that the definition of “ workman ” in the IndustrialDisputes Act is wide enough to cover the case of the. petitioner, whileMr. Perera argued that the workmen contemplated in the Act werepersons under a contract of service as opposed to a contract for services.It is unnecessarj' to decide that question here because, even if it is assumedthat the petitioner is a workman within the meaning of that Act, I amsatisfied that the remedy by way of an application to a Labour Tribunalwith its procedure of appeal to this Court is not as convenient, speedyand effective a remedy as that which the petitioner has already invoked— see R v. Wandsworth Justices x. If I may adopt respectfully thelanguage of Humphreys J. in that case, substituting “ dismissal ” for“ conviction ”, “ I think that the appellant is perfectly entitled to cometo this Court and say, upon precedent and authority, ‘I was dismissedas tho result of a denial of justice, and I ask for justice, which can onlybe done by the quashing of that order
» {1942) 1 A. E. JR. 56.
T. S. FERNANDO, J.—Linus SUva v. University Council of117
the Vidyodaya University
Lastly, interference by way of certiorari being a discretionary remedy*should it be granted in this ease ? In R v. Manchester Legal Aid Com-mittee {supra), the Court granted the writ ex debito justiliae becausethe applicant was a person aggrieved. The principle to be followedis that indicated by Blackburn J. in The Queen v. Justices of Surrey xwhich is that where the applicant has by reason of his local situationa peculiar grievance of liis own, and is not merely applying as one ofthe public, he is entitled to the writ ex debito justitiae.
All the objections to the application for interference by way of certio-rari therefore fail, and the order of discontinuance calls to be quashed.There remains the application for an order in the nature of a mandamus.Mandamus is applied for as being consequential to a quashing of theorder of discontinuance. If the petitioner was wrongly discontinued,it seems to follow that he must be considered to be still a teacher at theUniversity. Before the question of dismissal or discontinuance canbe finally determined it seems but reasonable that the authorities shouldhave a right in the nature of an interdiction of the petitioner, but onthat matter as well one has to be guided by the Statute (section 18 (e) )where not only dismissal but even suspension is conditioned by theexistence of misconduct or incapacity. The question whether thepetitioner is the holder of an office of a public nature as would entitlehim in the circumstances of the present case to the grant of an order byway of mandamus was not specifically argued before me. The factthat the petitioner has de facto ceased to be a teacher of the Universityafter the service on him of the letter “ E ” of 4th July 1961 and that hehas no actual possession of his post of Professor and Head of a Facultymay be due to the circumstance that the respondents honestly believedthat their order of 4th July 1961 was lawful. Now that thisCourt has pronounced on the validity of this order, I have no reason tothink that the respondents who are a responsible body of men will nottake action that is lawful and appropriate. I do not therefore considerit essential that I should now explore here whether the petitioner is theholder of an office of a public nature. Mandamus is itself a discretionaryremedy, and it will be sufficient for the present if I make no order inrespect of the prayer relating to a mandamus.
The order of the University Council of 4th July 1961 terminating thepetitioner’s appointment as from that date is hereby quashed. Therespondents are ordered to pay to the petitioner the taxed costs of thisapplication.
Application for Certiorari allowed. 1
1 {1870) L. R. 5 Q. B. 466.