137-NLR-NLR-V-60-N.-P.-DON-SAMUEL-Petitioner-and-S.-F.-DE-SILVA-Director-of-Education-Resp.pdf
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SINNETAMBY, J.—Samuel«. S. F. de Silva j
1959Present; Sinnetamby, J.N. P. DOST SAMUEL, Petitioner, and S. E. DE SILVA (Director ofEducation), Respondent
S.C. 154—Application for a Writ of Certiorari
'Certiorari—Education Code—Regulation 32 (Hi)—Effect of words “proves unsatisfac-tory ”—Judicial nature of the power vested in the Director—Education Ordinance,s. 31—Would writ lie even against an administrative act ?
Regulation 32 (iii) of the Code of Regulations for Assisted Vernacular andBilingual Schools reads as follows (omitting the irrelevant portions)—•
“ Where the manager proves unsatisfactory the Director of Education mayassume the management or appoint a Manager temporarily, etc. ”
Held, that a duty to act judicially is imposed upon the Director of Educationby the Regulation. Accordingly, certiorari would lie if the Manager of a Schoolis removed from office without being given an opportunity of making his defenceto any charge' made against him.
Held further, that even if the order of the Director involved an administrativeprocess, writ would be allowed if the Director did not bring his mind at all tobear upon the question.
-A-PPLICATION for a mandate in the nature of a writ of certiorariarising out of an order made by the Director of Education removing thepetitioner from the office of Manager of the Matara Yatiyana BuddhistMixed School.
H. V. Perera, Q.C., with 8. Sharvananda and S. Sivarajah, for thepetitioner.
M.Tiruchelvam, acting Solicitor-General, with F. Tennekoon, SeniorGrown Counsel, and R. 8. Wanasundera, Crown Counsel, for therespondent.
Cur. adv. vult.
May 14,1959. Sinnetamby, J.—
This is an application for a mandate in the nature of a writ of certiorari.arising out of an order made by the Director of Education removing thepetitioner from the office of Manager of the Matara Yatiyana BuddhistMixed School.
%
The facts relevant for the purpose of this case are shortly as follows :—
Vh e petitioner was the proprietor of the said school and from the year1926 has also been its manager. It would appear from the affidavit of therespondent and the exhibits attached thereto that on or about 5th De-cember, 1958, there was addressed to the Minister of Education a petition: alleging that Communism was being taught in the school under the guise
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SJ^STNETAMBY, 3.—Samuel v. S. F. de Silva
of Civics and Geography. This was referred to the Education Officerof the Southern Province who caused an inquiry to be made and reportedhis findings to the Director of Education. These were in due courseforwarded to the Permanent Secretary to the Ministry of Education andon the 4th March, 1959, the Director received an order from the Ministerto the following effect:—
“ I order that the school be Director-managed with immediateeffect as the Management is unsatisfactory.”
The Director of Education himself did not bring his mind to bear on thequestion and in his affidavit states that on receipt of this communication,he made the order contained in the document PI, the relevant portionof which is as follows:—
“ I have the honour to inform you that as your work as Manager ofthe above school has been found to be unsatisfactory, I have assumedthe management of the school with effect from 9th March, 1959,under the provisions of clause 32 (iii) of the Code of Regulations forAssisted Vernacular & Bilingual Schools. I shall continue duties asManager until such time as the proprietor of the school is able to ap-point a suitable Manager. The Education Officer, Southern .Province-will administer the school on my behalf. It should be noted, therefore,that you have ceased to be the Manager of the school with effect from.9th March, 1959.”
It is apparent from the Director’s letter PI that he purported to actunder Regulation 32 (iii) of the rules made under the rule making powerscontained in the Education Ordinance. The rules are in numbered,sections and is called the “ Education Code ”. It was in existence evenprior to the amending Ordinance of 1947 and were stated to have been in.existence since July, 1929.
Document PI gives the ground of removal, viz : that the Manager hasbeen found to be unsatisfactory. It was conceded at the argument;that the petitioner was not given an opportunity of making his defenceto this <?r any other charge and that the official of the department con-ducted whatever inquiries he held in the absence and without the know-ledge of the petitioner. Letter PI came as a surprise to the petitioner..’He promptly made representations but the Director refused to alter hisdecision. He, thereupon, filed these papers asking for a mandate in thenature of a writ of certiorari to quash the order of the Directorof Education.
The only question that arises for decision is whether the Director in.acting under regulation 32 (iii) of the Education Code acts administrativelyor in a quasi judicial capacity. It was agreed that if he was acting in thelatter capacity, the order cannot stand. The argument in the caseproceeded on the usual lines and several reported cases were cited in someof which it was held that the orders made were in an administrative ca-pacity while in others that tiny were made in a judicial or quasi-judicial",capacity. I do not consider it necessary to refer to all these cases.
SttJNlDTAlrfBT?, J.—iSamuet v. &. ff. de Stiva
$49
The learned acting Solicitor General appeared on behalf of tye Directorof Education. In most of the cases cited by him in support of his conten-tion that the order was an administrative one, the enabling provisions ofthe enactment under which the order was made used such words as “ifin the opinion of the Minister ”, “ If the Minister is satisfiedIf it appears
to the Minister ” or words to that effect. In these cases the view wastaken that the Minister acted in an administrative capacity becauseon a consideration of the provisions of the enactment he was the solejudge as to the existence of a certain set of circumstances from whichfollowed his power-to make a particular order. The use of such phrasesrendered it easier to make the submission that it was the subjective testwhich had to be applied. Regulation 32 (iii) of the Education Codecontains no similar phrase. The words used omitting the irrelevantportions are—
“ Where the Manager proves unsatisfactory the Director may assume
the Management or appoint a Manager temporarily, etc., etc.”
The question that one has to decide is whether this provision casts uponthe Director an administrative or a judicial function. The absence ofsuch a phrase as “ where it appears to the Director, etc.” is of itself noabsolute indication that the test to be applied is objective just as muchas the presence of such an expression is also not conclusive that thetest is subjective ; for instance, in the case of Subramaniam v. Ministerof Local Government and Cultural Affairs 1 where the expression usedwas “if the Minister is satisfied that there is sufficient proof of” thecourt held that it was a judicial function that the Minister was called uponto perform. It came to that conclusion on the ground that the use of thewords “ sufficient proof of ” involved the hearing of evidence. Althoughit was the Minister who had to make the decision it involved the judicialprocess. In the recent case of Sugathadasa v. Minister of Local Govern-ment and Cultural Affairs 2 the expression used was :—
“ if at any time upon representations made or otherwise it appearsto the Minister etc. etc.”
the Court held that an administrative power was vested in the Minister.
It is clear that when a Court is called upon to decide a question of thiskind, the duty cast upon it is to decide on a consideration of all the re-levant provisions of the enabling Act whether the test to be applied is asubjective or an objective one. If it is subjective, then it is the administra-tive process that comes into operation but if it is objective, it is the ju-dicial process. The expression used in Regulation 32 (iii) is “proves un-satisfactory It rather suggests that the test to be applied is an objectiveone. It is only if the Manager is in point of fact unsatisfactory that theDirector can act. The other instances enumerated in Section 32 of theCode also suggest the existence of circumstances which are objective incharacter; for instance, the question of whether a Manager refuses to actor absents himself from his duties or is unable owing to financial difficulties
4 (1958) 69 N. L. R. 457.
1 (1957) 59 N. L. R. 254.
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SIlWETAMBY, 3.—Samuel v. S. F. de Silva
to continue his duties are questions which have to be decided upon th<de facto existence of certain facts and not on whether the Director in hifown mind honestly thinks that they exist.
Perhaps, it would be appropriate in dealing with this question to refeiat this stage to the famous dictum of Lord Atkin in Rex v. ElectricityCommissioners 1 which stipulates the existence of four conditions for swrit of certiorari to lie. These are that there must be:—
a person or body of persons having legal authority to determinea question;
the question must effect the rights of subjects ;
the person or body of persons must have a duty to act judicially,and
they must act in excess of their legal authority.
Of these four the only question that arises for decision in this case iswhether there is a duty to act judicially imposed upon the Director bythe terms of Regulation 32 of the Education Code. The other conditions,it was conceded, exist.
In certain enactments it is clear from a consideration of all its provisionsthat their object is to enable an Official or a Minister to make ordersaffecting adversely the rights of subjects in order that the communityas a whole may benefit. The enactment embodies the policy of theGovernment and when a Minister or other functionary makes orders inpursuance of powers given him by the enactment the Courts have heldthat it is the administrative process that is invoked and have refused toexercise any supervisory jurisdiction over such acts. Examples of this•are to be seen in the orders made under the New Towns Act and theHousing and Town Improvement Act in England. Here questions ofpolicy and expediency are involved and the rights of the individual aremade subordinate to the interests of the community.
In the case of Rex v. Manchester Legal Aid Committee 2 the principlewas enunciated that when a decision has to be made on the facts of anyparticular case and solely on the evidence apart from any extraneousconsiderations then it is the judicial process that is invoked. Applyingthat principle to the facts of the present case it is manifest that the ques-tions of whether the Manager was unsatisfactory must depend solely on thefacts of this case and upon the evidence available to support it. Noextraneous considerations such as policy or expediency can come into play,but the learned acting Solicitor General contended that questions of policywere involved. He contended that it is the policy of the Government todiscourage schools being utilised for political purposes. That may bethe policy of the Government, but, apart from policy, if the Managerhad infringed it, it may be a good ground for saying that he was unsatis-factory. It would be an item of evidence in support of the charge; onlyhe must be given an opportunity of refuting it. Can it, however, be said
1 {1924) 1 K. B. 171.
* (1952) A. E. R. 480.
SHTNETAMBY, J.-—Samuel v. S. F. de Silva
551,
that any such policy is either expressly or implicitly declared to be afactor to be taken into consideration in enforcing the enactfaent ? Itseems to me that it id only if, on a consideration of the provisions of theenactment or the purpose for which it was enacted, it is clear that acertain policy is involved that questions of policy can be taken intoconsideration when action is taken under its provisions. I do not agreethat when the Director is called upon to act under the provisions of regu-lation 32 (iii) of the Code any question of policy or expediency is involved.
It has, at the same time, to be recognised that although extraneousconsiderations need not be involved Parliament may, nevertheless,confer administrative powers upon a Minister or functionary even whena decision has to be made solely on the facts of the case—Sugathadasa v.Minister of Local Government and Cultural Affairs 1. Such an intentionmust, however, be manifest on a consideration of all the provisions of theenactment. The question is, therefore, whether in this present casesuch an intention can be attributed to the legislature when it approved the“Education Code It is to be noted in this connection that a right of appealto the Minister is granted by section 31 of the Education Ordinance to aManager who is dissatisfied with an order of the Director. That is one ofthe matters which have to be taken into account in deciding this ques-tion. In the Nakkuda Ali case 2 the Privy Council in holding that certainprovisions in the Defence Regulations relating to the control of textilesimposed upon the Controller administrative duties, took into considera-tion, inter alia, the fact that there was no right of appeal. A right ofappeal ordinarily involves consideration of the sufficiency of grounds uponwhich an administrative body reaches a decision and carries with it theconcept of conflicting claims and a duty cast on the appellate body todecide between them. This in turn involves the existence of what hasbeen termed a “ lis ” or a “ proposition and an opposition In thosecases where it has been held that the power exercised is administrative noright of appeal generally lies. The existence of a right of appeal favoursthe view that the power vested in the Director by this regulation isjudicial in nature.
In the recent case of Jtoss-Clunis v. Papadopoullos and others fromCyprus 3 the Privy Council declared that even if the power which isgranted by an enactment is an administrative power, if it could beshown that there was no ground on which the administrative body couldhave come to its conclusion the court might infer that it did not honestlyform it or that in forming it it did not apply its mind to the relevant facts.
In other words, even where it is the subjective test that has to be appliedsome qualification is placed on the power. Lord Morton in the course of hisjudgment made the following observations
“ Counsel for the appellant submitted that the only duty cast on theappellant was to satisfy himself of those facts; that the test was asubjective one, and the statement in paragraph 12 of the appellant’saffidavit of December 4, 1956, was a complete answer to the argument
1 {1958) 59 N. L. B. 457.'2 (1950) 51 N. L. B. 457.
(i958) 8 A. E. B. 83.
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SINNETAMBY, J.—Samuel v. 8. F. <te SUva
of the Counsel for the respondents, unless it could be shown thatthe statement in the affidavit was not made in good faith, and bad faithwas not alleged. Their Lordships feel the force of this argument, butthey think that if it could be shown that there were no grounds on whichthe appellant could be so satisfied, a court might infer either that he didnot honestly form that view, or that in forming it, he could not haveapplied his mind to the relevant facts”.
In such a case a writ would be allowed.
It would appear in the present case that even if the view is taken thatthe order involves an administrative process, as the Director did not ac-cording to his affidavit even bring his mind to bear upon the question, theprinciple enunciated in the Cyprus case would “ a fortiori ” apply.
I hold that the power vested in the Director of Education by regulation32 (iii) of the Education Code is judicial in character. The petitioner wasnot given an opportunity of making his defence and the order made againsthim cannot stand. It is accordingly quashed. The petitioner will beentitled to the costs of this application.