THE UNIVERSITY OF CEYLON, Appellant, and E. F. W. FERNANDO, Respondent

126-NLR-NLR-V-61-THE-UNIVERSITY-OF-CEYLON-Appellant-and-E.-F.-W.-FERNANDO-Respondent.pdf


The University of Ceylon v. Fernando
505
CD* the Privy Council]
I960 Present: Viscount Simonds, Lord Tucker, Lord Jenkins, LordMorris of Borth-y-Gest, Mr. L. M. D. de SilvaTHE UNIVERSITY OF CEYLON, Appellant, and E. F. W.FERNANDO, RespondentPrivy Council Appeal No. 17 of 1958S. C. 559—D. G. Colombo, 28909
University of Ceylon—Examinations procedure—“ General Act ” No. 1, Chapter VIII,Part I, Clauses S and 14—Misconduct of candidate-—Power of Vice-Chancellorto investigate—Quasi-judicial inquiry—Mode of procedure—Natural justice—Nature of and limits upon its requirements.
In quasi-judicial inquiries, the question whether the requirements of naturaljustice have been met by the procedure adopted in any given case must dependto a great extent on the facts and circumstances of the case in point. Apartfrom special circumstances, there is a duty of giving to any person against whomthe complaint is made a fair opportunity to make any relevant statement whichhe may desire to bring forward and a fair opportunity to correct or controvertany relevant statement brought forward to his prejudice. In general, therequirements of natural justice are, first, that the person accused should knowthe nature of the accusation made ; secondly, that he should be given an oppor-tunity to state his case; and thirdly, that the tribunal should act in goodfaith.
Clauses 8 and 14 of Part I of Chapter V11J of the “ General Act ” No. 1which prescribes the examination procedure of the University of Ceylon readrespectively as follows.*—
“ Where the Vice-Chancellor is satisfied that any candidate for an exami-nation has acquired knowledge of the nature or substance of any questionor the content of any paper before the date and time of the examination,or has attempted or conspired to obtain such knowledge, the Vice-Chancellormay suspend the Candidate from the examination or remove his name fromany pass list, and shall report the matter to the Board of Residence andDiscipline for such farther action as the Board may decide to make.”
“ Where any matter is reported to the Board of Residence and Disciplineunder this Part, the Board may (1) Remove the name of the candidatefrom any pass list; or (2) Suspend the candidate from any University exami-nation for such period as the Board may decide or indefinitely ; or (3) orderthat the candidate be suspended from the University for such period as theBoard may decide, or indefinitely ; or (4) do all or any of these acts. ”
In the present action brought by the plaintiff against the University ofCeylon for (inter alia) a declaration to the effect that* a decision of the Boardof Residence and Discipline of the University to suspend the plaintiff (a studentof the University) from all University examinations for an indefinite period, andthe finding of a Commission of Inquiry set up by the Vice-Chancellor, on whichsuch decision was based, were null and void—
Held, that inasmnnh as clause 8 was silent as to the procedure to be followedby the Vice-Chancellor in satisfying himself of the truth or falsity of a given
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LORD JENKINS—The University of Ceylon v. Fernando
allegation and the Vice-Chancellor’s functions under the clause -were admittedlyquasi-judicial, it was for hi-m to determine the procedure to be followed as hethought best, hut with due regard to the principles of natural justice.
The Vice-Chancellor, when the alleged offence under clause 8 was brought tobin notice, was not bound' to treat the matter as if it was a trial, had not power toadminister an oath, and need not examine witnesses, but could obtain informa-tion in any way he thought best. It was therefore open to him, if he thoughtfit, to question witnesses without inviting the plaintiff to be present. Suchprocedure did not involve any violation of the requirements of natural justice,provided, however, that, before any decision to report the plaintiff was reached,a fair opportunity was given to the plaintiff to correct or contradict any relevantstatement to his prejudice ; this condition resolved itself into the two require-ments that the plaintiff should be adequately informed of the case he had tomeet, and given an adequate opportunity of meeting it.
There was no infringement of any principle of natural justice if the plaintiffwas not given an opportunity of cross-examining a material witness, if norequest was made by him to tender such witness for cross-examination.
.iSjPPEAL from a judgment of the Supreme Court reported in{1956) 58 N. L. It. 265.
Dingle Foot, Q.G., with G. F. Flebcher-Gooke, Q.G., for the defendant-appellant.
No appearance for the plaintiff-respondent.
Gur. adv. vuli.
February 16, 1960. [Delivered by Lord Jenkins]—
This appeal arises out of an action brought by the respondent E. F. W.Fernando as plaintiff against the appellant University of Ceylon asdefendant for (inter alia) a declaration to the effect that a decision of theBoard of Residence and Discipline of the University to suspend thet plaintiff (a student of the University) from all University examinationsfor an indefinite period, and the finding of a Commission of Inquiry setup by the Vice-Chancellor, on which such decision Was based, were nulland void.
The action was heard in the District Court of Colombo by Eariapper,A.D.J., who by a judgment and decree dated the 31st August, 1964,dismissed it with costs. The plaintiff appealed to the Supreme Court ofColombo and that Court (Weerasooriya and Fernando, JJ.), by a decreedated the 13th December, 1966, giving effect to a judgment delivered onthe 28th November, 1956, allowed his appeal, and granted the declaratoryrelief claimed With costs. From that judgment and decree the Universitynow appeals to this Board. To their Lordships’ regret the plaintiff, itmay be for financial reasons, has not appeared to support the decision inbps favour pronounced by tb,e Supreme Court, and. although counsel forthe University have done their best to make up for this by presenting the
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plaintiff’s side of the matter as well as their own, their Lordships havefelt some anxiety in dealing With this not altogether easy case in theplaintiff’s absence.
The circumstances leading up to the plaintiff’s suspension from allUniversity examinations, and the unfortunate litigation which hasensued, are as follows :—
The examinations procedure of the University is prescribed by its“ General Act ” 2To. 1 Chapter VIII Part I, Clause 8 of which Partprovides that “ where the Vice-Chancellor is satisfied that any candidatefor an examination has acquired knowledge of the nature or substanceof any question or the content of any paper before the date and time ofthe examination, or has attempted or conspired to obtain such knowledge,the Vice-Chancellor may suspend the Candidate from the examinationor remove his name Lorn any pass list, and shall report the matter to theBoard of Residence and Discipline for such further action as the Boardmay decide to take.” By Clause 14, tc ‘Where any matter is reported tothe Board of Residence and Discipline under this Part, the Board may—
Remove the name of the candidate from any pass list; or
Suspend the candidate from any University examination for such
period as the Board may decide or indefinitely ; or
order that the candidate be suspended from the University for
such period as the Board may decide, or indefinitely : or
do all or any of these acts
These clauses may conveniently be referred to as clause 8 and clause 14respectively.
The plaintiff, who had been a student in the faculty of science in theUniversity since 1948, presented himself at the end of March, 1952, asan examinee for the final examination in science, section B, Zoology, forthe degree of Bachelor of Science, and completed the full examination inboth theory and practical work. There were five papers in theory andtwo in practical work, and the plaintiff sat for Zoology Paper V, the lasttheoretical paper, on the 4th April, 1952. This paper was in two sectionsconsisting of (1) an essay, and (2) a passage in German and a passage inFrench, one of which the candidate was required to translate into Englishwith comments thereon, ten marks being allotted for the translation ofand comments upon the selected passage, and ninety marks for the essay.The plaintiff chose the passage in German for his translation and comments,for which he was awarded eight marks. He appears to have done wellin all his papers and to have attained in the examination as a whole astandard which would normally have been held sufficient to place himin the first class.
After the examination was over, a woman student, Miss Balasingham,who had aslo been reading Zoology and had taken the examination atthe same time as the plaintiff, made to Mr. Sivaprakasapillai, a lecturerin the engineering facility and Miss Balasingham’s brother-in-law, certain
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LORD JEUKTKS—The University of Geylon v. Fernando!-
allegations concerning the plaintiff which, if true, were only explicable onthe footing that the plaintiff had acquired knowledge of the Germanpassage in Zoology Paper V before the examination. These allegationswere passed on by Mr. Sivaprakasapillai to Sir Ivor Jennings, the Vice-Chancellor, it Would seem in the first instance through Professor Pereiraand Mr. Keerthisinghe, the senior lecturer in Zoology, though this is notimportant.
The Vice-Chancellor took a serious view of Miss Salasingham’s allega-tions, which not only implicated the plaintiff but also suggested thepossibility of negligence or misconduct on the part of some member ormembers of the staff of the University. On this aspect of the mattersome embarrassment was caused by the circumstance that ProfessorFernando, who was responsible for the German passage in ZoologyPaper V, was the plaintiff’s uncle. In these circumstances the Vice-Chancellor decided (as their Lordships think quite rightly) that thematter called for action under clause 8.
To assist him in satisfying himself of the truth or falsity of theallegations, the Vice-Chancellor set up a Commission of Inquiry, con-sisting of himself, Professor Mylvaganam, Dean of the Faculty of Science,and Mr. Keuneman, Q.C., a member of the Council of the University,who -was to lead the inquiry. This body seems to have met on threeoccasions, viz., on the 21st May and 3rd June, 1952, and on one otheroccasion between these two dates. The plaintiff attended cn two ofthese three occasions, viz., on the 21st May and 3rd June. Prior to thefirst meeting the Vice-Chancellor wrote to the plaintiff a letter dated the16th May, 1952, which, omitting formal parts, was in these terms :—
Dear Mr. Fernando,
An allegation has been made to me in writing that you hadacquired knowledge of the content of one or more of the papers setat the Final Examination of Science, Section B, Zoology, beforethe date of the examination. Since this is a very serious allegationwhich may affect not only you but also one or more of the membersof the University staff, I have consulted Mr. A. E. Keuneman, Q.C.,who agrees, that the allegation is sufficiently circumstantial to justifya formal enquiry.
I have therefore appointed a commission consisting of Mr. Keuneman,the Dean of the Faculty of Science, and myself, and haveasked Mr. Keuneman to take the lead in the enquiry. He hasasked that a meeting be held in the Board Boom, College House,on Wednesday, 21st May, at 5 p.m., and that you be requested toattend. I should be glad if you Would attend on this occasionand would report to Mr. Blok, who is acting as Secretary to thecommission.
Yours sincerely,
Sgd. Ivob JaaransiGS,
Vice-Chancellor.
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The reference in this letter to " one or more ” of the papers set at-the final examination appears to have been due to the fact thatMiss Balasinghazn had alleged fore-knowledge on the part of the plaintiffof the contents of another paper besides Zoology Paper V. At the outsetof the inquiry the Commission came to the conclusion that there wasno substance in this additional charge, which accordingly was notpursued.
In the course of their meetings the Commission questioned (in additionto the plaintiff himself) Miss Balasinghazn and a number of other personsincluding Professor Fernando and various lecturers and students, butnone of them in the presence or hearing of the plaintiff. The secondappearance of the plaintiff before the Commission, that is, his appearanceon the 3rd June, was in response to a letter from the Vice-Chancellorinviting him to attend on that day and to bring with him all the exercisebooks he had used during his course, which he accordingly did. Thereseems to have been a good deal of discussion regarding one particularbook, in which Dr. Craze (one of the lecturers in Zoology) had correcteddrawings of the veinous system of rats, but in the end the Commissiondecided that it threw no light on the matter.
Miss Balasinghazn appears to have adhered before the Commission tothe story she had originally told to Mr. Sivaprakasapillai, which, to quotefrom the Report made by them at the conclusion of their inquiry was-te this effect :—
3- Miss Balasingham states that, owing to Mr. Fernando's behaviour,she suspected that there was something in one of his notebooks whichhe did not wish the other students to see. On one occasion he leftthe book on the bench in the Section B laboratory and went out ofthe room. She seized the opportunity to glance through the bookand saw a list of German Words, in some cases with English equiva-lents. There were about 30 Words and she copied nine of them intoher own notebook, which she produced. She could remember onlyone of the words, which she had not copied, Zitrone.nsa.ft, a Wordwhich appeared almost at the end of the list. This word appearsat the end of the German passage in Paper V. The other nine wordsappear in the passage, and in the order in which they are shownin the list in Miss Balasingham’s book, except that the order of theeighth and ninth words is changed. The passage, with the ten wordsunderlined, was as follows :—
After setting out the German passage, with the crucial words under-lined, the Report continues :—
This list in Miss Balasingham’s book was apparently not shown,to anyone until our enquiry began. It was tben shown, toMr. Sivaprakasapillai and was produced to us at our request. A largepart of our enquiry was necessarily directed towards ascertainingwhether the list really was in the notebook before the examinationbegan. In our opinion it was. The following factors are relevant, t
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Miss Balasingham was able to describe the copying with awealth of circumstantial detail, of no direct relevance to thestory as such, which carried conviction. If the story wasinvented, it was a remarkably successful invention.
Another student, Miss V. de Silva, was sitting next toMiss Balasingham on the occasion when the copying is said to havebeen done. Miss de Silva denies that she saw Miss Balasinghamcopying, but she admits that Miss Balasingham told her aboutthe list before the examination. Miss de Silva is a second-yearstudent in Zoology, and we believe that she could have told usmore. Another student Mr. C. H- Fernando, also admits thatMiss Balasingham told him about the list before the examination.
The Report goes on to say :—
“ (3) Miss Balasingham’s behaviour immediately after the examina-tion was entirely consistent with her story …. ”
and to give reasons for that view.
Satisfied as they were of the truth of Miss Balasingham’s story, theCommission of Inquiry at the end of the Report expressed their findingsto be to the effect that:—
The plaintiff acquired knowledge of the nature or substance ofthe German question in Zoology Paper V before the date and timeof the examination and must therefore be reported to the Board ofResidence and Discipline Tinder clause 8 ;
There Was no evidence as to the manner in which this know-ledge came to the plaintiff.
By a letter dated the 21st July, 1952, the Vice-Chancellor informed theplaintiff that the Board of Residence and Discipline had found him guiltyof an examination offence in connection with the Final Examination inscience held in 1952 and had suspended him indefinitely from all Universityexaminations.
After considerable correspondence between the plaintiff and the Vice-Chancellor in which the plaintiff sought without success a review of thedecision of the Boad of Residence and Discipline, the plaintiff on the19th May, 1953, began the present action, in Which as already mentionedhe failed at first instance but succeeded on appeal.
In his amended plaint dated the 24th July, 1953, the plaintiff allegedthat the decision of the Commission of Inquiry was null and void for anumber of reasons. He claimed that the decision was contrary to theprinciples of natural justice on five grounds, two of which consisted ofallegations of bias or disqualification against Professor Mylvaganam byreason of his alleged relationship to Miss Balasingham andMr. Sivaprakasapillai, and the fact that he was a member of the Board ofexaminers and of the scrutinising committee. The third ground was tothe effect that by reason of the first “ the -maxim that justice should not
LORD JEJTB3NS—The University of Ceylon v. Fernando
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only be done bat also appear to be done ” had been violated. The fourthground comprised the substance of the plaintiff’s case and "Was to theeffect that the evidence of the various -witnesses who appeared before theCommission of Inquiry including the evidence of Miss Balasingham wastaken in the absence of the plaintiff, who was not aWare of what evidencewas led against him, and that in the circumstances one of the essentialelements of natural justice was not observed, inasmuch as the plaintiffwas not aware of the case he had to meet. The fifth ground was to theeffect that the evidence of the various -witnesses was not taken entirelybefore all the three members of the Commission of Inquiry, and that suchevidence was acted on by the Commissicn, and that this circumstancewas also a violation of the elementary principles of justice. The plaintifffurther alleged that there was no evidence upon which the Commission ofInquiry could reasonably find the charge Against the plaintiff proved, thatthe finding arrived at against the plain off was one which had not beenarrived at in conformity with clause 8, and that the finding and decisionwere therefore void and of no effect.
The allegations of bias or disqualification against Professor Mylvaganamas a member of the Commission of Inquiry were rejected in both courtsas without substance. The allegation to the effect that there was noevidence upon which the Commission could reasonably find the chargeagainst the plaintiff proved was (so far as open to the Court) clearly ill-founded. The allegation to the effect that the finding was not arrived atin accordance with clause 8 turned on the fact that the Vice-Chancellorappointed two other persons to sit with him as a Commission of Inquiryto investigate the matter, instead of proceeding to investigate it alone.It was held in both Courts that this procedure was not open to objection,inasmuch as this was merely a method, which the Vice-Chancellor wasfree to adopt if he chose to do so, of satisfying himself of the truth orfalsity of the charge, and the Report was a report by him for the purposesof clause 8 although signed by the two other members of the Commissionas well as himself. The plaintiff having taken no steps to appeal againstthe decision of the Court below on these matters of complaint theirLordships need say no more aboet them.
There remain the complaints to the effect that the evidence includingthat of Miss Balasingham was taken in the absence of the plaintiff whowas not aware of the evidence led against him or of the case he had tomeet; and that the evidence of certain -witnesses was taken by the Vice-Chancellor in the absence of the other members of the Commission.
As to these, it is not in dispute that the plaintiff was not present, andwas not invited to be present, at the examination of any of the witnesses,or that the Vice-Chancellor did in fact interview two witnesses, namelyProfessor Fernando and Dr. Graze, in the absence of the other membersof the Commission. Their Lordships may add that it is also admittedthat the plaintiff did not at any stage question Miss Balasingham andwas never offered an opportunity of doing so.
On the other hand it is not in dispute that the plaintiff was interviewedand questioned at length about the matter by the three members of theCommission on the 21st May and 3rd June, 1952.
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X>OHD JENKINS—The University of Gey Ion v. Fernando
Before tiie learned Judge and in the Supreme Court it was argued forthe University that the Vice-Chancellor’s functions under clause 8 wereadministrative and not of the kind described, for want of a better term,as “ quasi-judicial ” and accordingly that the Vice-Chancellor’s action inthe matter was not open to review by the Court. It was however arguedfurther that if contrary to this contention the Vice-Chancellor’s functionsunder clause 8 were quasi-judicial, the Vice-Chancellor’s letter of the16th May, 1652, coupled With the information given to the plaintiff atthe two interviews, sufficiently apprised him of the nature of the com-plaint, that he was at these interviews given sufficient opportunity tostate his case in rebuttal of it, and accordingly that there had been nosuch breach of the so-called principles of natural justice as was necessaryto warrant the intervention of the Court in such a case.
The learned Trial Judge was of opinion that the functions of the Vice-Chancellor in the matter were administrative and not judicial, andconsequently that the Court had no jurisdiction to interfere, hut went onto hold that if he was wrong in this, and such functions were of a quasi-judicial character, the principles of natural justice had been sufficientlycomplied with by the Commission.
The Supreme Court took the opposite view, holding that the Vice-Chancellor’s functions were not administrative but quasi-judicial, andthat the mode of inquiry adopted had violated the principles of naturaljustice, with the result that the Court could and ought to declare theReport of the Commission of Inquiry, and the consequential decision ofthe Board of Residence and Discipline under clause 14, to be null andvoid.
At the hearing before their Lordships Mr. Dingle Foot, for theUniversity, disclaimed the contention that the Vice-Chancellor's functionsunder clause 8 were administrative and not quasi-judicial, but submittedthat oh the footing that these functions were quasi-judicial the claims ofnatural justice had been fully satisfied.
Accordingly (apart from a subsidiary question as to the jurisdiction ofrthe courts in Ceylon to grant declaratory relief in such a case) the presentappeal resolves itself into the question whether this inquiry was con-ducted with due regard to the rights accorded by the principles of naturaljustice to the plaintiff as the person against whom it was directed.
These rights have been defined in varying language in a large numberof cases covering a wide field. Their Lordships do not propose to reviewthese authorities at length, but Would observe that the question whetherthe requirements of natural justice have been met by the procedureadopted in any given case must depend to a great extent on the factsand circumstances of the case in point. As Tucker L. J. (as he then was)said in Russell v. Duke of Norfolk1:—" There are in my view no wordswhich are of universal application to every kind of inquiry and every kindof domestic tribunal. The requirements of natural justice must depend
1 [1949] 1 A. E. B. 109 at p. 118.
LORD JENKINS—-The University of Ceylon v. Fernando
513
on the circumstances of the case, the nature of the inquiry, the rules underwhich the Tribunal is acting, the subject matter that is being dealt with,and so forth.” In the earlier case of General Medical Council v. Spade-man1- Lord Atkin (at page 638) expressed a similar view in these words :“ some analogy exists, no doubt, between the various procedures of thisand other not strictly judicial bodies, but I cannot- think that the pro-cedure which may be very just in deciding whether to close a school oran insanitary house is necessarily right in deciding a charge of misconductagainst a professional man. I would, therefore, demur to any suggestionthat the words of Lord Loreburn L.C. in Board of Education v. Bice2afford a complete guide to the General Medical Council in the exercise oftheir duties.”
With these reservations as to the utility of general definitions in thisbranch of the law, it appears to their Lordships that Lord Loreburn’smuch quoted statement in Board of Education v. Bice (supra) still affordsas good a general definition as any of the nature of and limits upon therequirements of natural justice in this kind of case. Its effect is con-veniently stated in this passage from the speech of Lord Haldane in thecase of L.G.B. v. Aldridge3 where he cites it with approval in the followingwords :—
“ I agree with the view expressed in an analogous case by my nobleand learned friend Lord Loreburn. In Board of Education v. Bice4he laid down that, in disposing of a question which was the subjectof an appeal to it, the Board of Education was under a duty to act ingood faith, and to listen fairly to both sides, inasmuch as that was aduty which lay on every one who decided anything. But he wenton to say that he did not think it was bound to treat such a questionas though it were a trial. The Board had no power to administer anoath, and need not examine witnesses. It could, he thought, obtaininformation in any way it thought best, always giving a fair oppor-tunity to those who were parties in the controversy to correct orcontradict any relevant statement prejudicial to their view.”
Erom the many other citations which might be made, their Lordshipswould select the following succinct statement from the judgment of thisBoard in the case of JDe Verteuil v. Knagg$h :—
“ Their Lordships are of opinion that in making such an inquirythere is, apart from special circumstances, a duty of giving to anyperson against whom the complaint is made a fair opportunity tomike any relevant statement which he may desire to bring forwardand a fair opportunity to correct or controvert any relevant statementbrought forward to his prejudice.”
The last general statement as to the requirements of natural justice towhich their Lordships would refer is that of Mr. Justice Harman fas he
1 [19431 A. C. 627.3 [19151 A. C. 120 at page 132.
– i 19111 A. C. 179. 182.4 [19111 A. G. 179.
[19181 A. C. 557 at p. 560.
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LORD JBNKHT&—The University of Ceylon v. Fernanda
then was) in the case of Byrne v. Kinematograph Renters Society Ltd.1,of which their Lordships would, express their approval. The learnedJudge said this :—
“ What then are the requirements of natural justice in a case ofthis kind ? First, I think that the person accused should know thenature of the accusation made ; secondly, that he should he givenan opportunity to state his case; and, thirdly, of course, that thetribunal should act in good faith. I do not myself think that therereally is anything more.**
Turning now to the actual terms in which the Vice-Chancellor isinvested with the quasi-judicial function here in question, it is to beobserved that all that clause 8 provides is that where the Vice-Chancelloris satisfied that any candidate has acquired knowledge of the nature orsubstance of any question or the content of any paper before the dateand time of the examination “ the Vice-Chancellor . . . shall report thematter to the Board of Residence and Discipline …” The clause issilent as to the procedure to be followed by the Vice-Chancellor in satis-fying himself of the truth or falsity of a given allegation. If the clausecontained any special directions in regard to the steps to be taken by theVice-Chancellor in the process of satisfying himself he would, of course,be bound to follow those directions. But as no special form of procedureis prescribed it is for him to determine the procedure to be followed ashe thinks best, but, to adapt to the present case the language of thejudgment of this Board in Le VerteuU v. Knaggs (supra) at page 560,subject to the obvious implication that some form of inquiry must bemade, such as will enable him fairly to determine whether he shouldhold himself satisfied that the charge in question has been made out.
As was said by Lord Shaw of Dunfermline in L.G.B. v. Aldridge (supra)at page 1S8, of the authority there concerned it ” must do its best to actjustly and to reach just ends by just means. If a statute prescribes themeans it must employ them. If it is left without express guidance it muststill act honestly and by honest means.” In the present case no shadowof doubt is cast upon the honesty and bona fides of the Vice-Chancelloror of those who sat with him in the Commission of Inquiry.
So far as the plaintiff is concerned it appears to their Lordships thathe must be taken to have agreed, when he became a member of theTTniversity, to be bound by the statutes of the University, includingclause 8, and in the event of clause 8 being put in operation against himcould not insist on the adoption by the Vice-Chancellor of any particularprocedure beyond what the clause expressly or by necessary implicationrequires. In the absence of any express requirement he is thrown backon the necessary implication that the Vice-Chancellor’s procedure willbe such as to satisfy the requirements indicated in the passages from DeVerteuil v. Knaggs, L.G.B. v. Aldridge, and Byrne v. KinematographRenters Society Ltd., to which their Lordships have just referred, and
1 [295S] 1 W. L. B. 762 at page 784.
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thus to comply with, those elementary and essential principles of“ fairness ” which must as a matter of necessary implication be treatedas applicable in the discharge of the Vice-Chancellor’s admittedly quasi-judicial functions under clause 8, or in other words, with the principlesof*natural justice.
The question then is whether the Vice-Chancellor did in the coursehe took satisfy those principles.
The plaintiff’s contention to the effect that he Was not adequatelyinformed of the case he had to meet and was not. given any adequateopportunity of meeting it, and that the course taken by the Vice-Chan-cellor or the Commission of Inquiry in these respects failed to satisfythe requirements of natural justice, depended almost entirely on theadmitted fact that Miss Balasingham and the other witnesses werenot questioned in the presence and hearing of the plaintiff, who conse-quently was not able to question them on the statements they made.The further admitted fact that two witnesses were questioned by theVice-Chancellor alone and not by all three members of the Commissiondoes not, their Lordships think, add anything to this basic complaint.
But this did not in their Lordships’ view in itself involve any violationof the requirements of natural justice. To adapt Lord Lorebum’s words-in Board of Education v. Bice (supra), the Vice-Chancellor was not boundto treat the- matter as if it was a trial, had not power to administer anoath, and need not examine witnesses, but could obtain information in.any way he thought best.
It seems to their Lordships to follow that inasmuch as the Vice-Chan-cellor, when the alleged offence under clause 8 was brought to his notice,,was not bound to treat the matter as a trial but could obtain informationabout it in any way he thought best, it Was open to him if he thought-fit to question witnesses without inviting the plaintiff to be present.
But, while there was no objection to the Vice-Chancellor informinghimself in this way, it was undoubtedly necessary that before any de-cision to report the plaintiff was reached he should have complied with thevital condition postulated by Lord Lorebum, which adapted to thepresent case may be stated as being to the effect that a fair opportunitymust have been given to the plaintiff to correct or contradict any re-levant statement to his prejudice.
The University’s contention is that this condition, which resolves itselfinto the two requirements that the plaintiff should be adequately in-formed of the case he had to meet, and given an adequate opportunity ofmeeting it, was complied with in its first branch by the letter of the16th. May, 1952, and what plaintiff was told at the first interview on the2-lst May, 1652, and in its second branch by what passed at that inter-view and at the second interview on 3rd June.
As to what took place at the two interviews, the learned trial Judgeaccepted the evidence of the Vice-Chancellor in preference to that ofthe plaintiff. The Vice-Chancellor’s evidence, and indeed the plaintiff’s-own admission, make it abundantly plain that at the outset of the first
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interview the plaintiff was told that Miss Balasingham had made thischarge against him and the nature of the charge was explained to himin detail.
To quote from the Viee–Ghaneellor’s evidence-:—
Q.Did you have with you the book into which those words hadbeen copied ?
A. Yes, we had it in the first meeting.
Q. Was it shown to the plaintiff ?
A. Yes, it Was shown to him at the third meeting. Ho, I amsorry it was shown to him at the first meeting.
Q. And was he questioned in regard to those words 1
A. Yes, he was shown a marked copy of the German questionpaper with the ten words underlined—the nine words which appearedin Miss Balasingham’s book plus the other word which Miss Bala-singham said she remembered to have seen in the plaintiff’s book,namely Zitronensaft.
Q, According to Miss Balasingham that was the word sheomitted ?
A. That was one of the last words she had omitted.
•Q. As far as the book was concerned there were 9 words in it ?
A. Yes.
Q. Those nine words were underlined in the paper ?
A. Yes.
Q. Was the plaintiff shown that paper and the book 1
A. Yes, his attention was drawn to the fact that the wordsappearing in the book were the same as those words underlined inr the paper. He was asked whether it was true that Miss Balasinghamhad copied those words into her book from his book and whether infact this book was his note book. TTis answer was “ no ”.
Q. Then what further steps did you take ?
A. We asked him. more questions about the kind of note bookshe used for his lecture courses. We also asked him why he foundthose questions so easy. Professor Mylvaganam asked him totranslate the passage in German which was in the question paper, andthen we followed up to find out from him what explanation he couldgive, if there was any explanation, with regard to the notes that hehad made.
The reference here “ to the notes which the plaintiff had made ” musttheir Lordships think mean the notes which according to Mias Bala-•singham’s story he had made.
LORD JE2JKJXS—The University of Ceylon w. Fernando
517
From the plaintiff’s evidence their Lordships would quote theblowing :—
A. He, “ that is Mr. Keuneman ”, said “ We have evidence thatyou have come to know this question before the examination.”
Q. Tell us to the besl of your recollection, at what stage of hisquestioning did he make that statement to you ?
A. I cannot understand that question.
Q. How long after Mr. Keuneman had put that paper into yourhands and started questioning you, did he make that statement toyou ?
A. After about five minutes.
Q. Then would it be right to say that it was at the early stage of theinquiry that they told you that ?
A. Yes.
Q. Then would you recollect any other questions that he putto you ?
A. He asked me ** Did you have these 8 or 10 German words thatwere in Miss Balasingham’s book in any of your books before theexamination V*
Q. In other words he made it plain to you that according to in-formation which they had Miss Balasingham is supposed to have hadthese words in her book ?
A No answer.
(To Court : What did you understand when Mr. Keuneman put thatquestion to you ?
A. I could not understand anything in particular.)
Q. Did you understand anything in general from that observationof Mr. Keuneman ?
A. Yes.
Q. What did you understand in general ?
A. I felt that she had reported that I have'had these words in oneof my books before the examination.
Q. So that, Mr. Fernando, within a few minutes of the inquirystarting you were made aware that some allegations had been madeagainst you by Miss Balasingham ?
A. Yes.
618LORD JENKINS—The University of Gey Ion v. Fernando
Their Lordships are satisfied that there is no substance in the complaintmade by the plaintiff to the effect that the reference in the letter of16th May, 1952, to “ one or more of the papers set at the final examina-tion ” left him under ^he-irapresaien that seme additional charge -wasbeing made against him, the precise nature of which was not sufficientlyexplained. Apart from the fact that (according to the plaintiff) Mr.Keuneman asked him towards the end of the first day “ how he had faredin his practical examination V' nothing was said to suggest that thecommission was in any way concerned with anything other than theGerman Translation. It must therefore have been dear to the plaintiff(as the fact was) that the only charge whi h was being pursued relatedexclusively to that matter
Their Lordships are accordingly satisfied that the plaintiff was ade-quately informed of the case he had to meet.
As to the adequacy of the opportunity of meeting the case allegedagainst him afforded by the two interviews, the plaintiff in his evidencecomplained that the interviews were not fairly conducted in the respectsthat he was plied with questions which he was not given a chance ofanswering fully and was prevented from saying all he wanted to say. Thelearned trial Judge rejected these complaints and accepted the Vice-Chancellor's evidence to the effect that the two interviews were fairlyconducted. Their Lordships see no reason for dissenting from thisfinding. To quote again from the Vice-Chancellor's evidence he saidon this aspect of the case —“ A ..He ” (that is the plaintiff)
“ was given every opportunity at the inquiry ”. In fs ct we wanted himto talk but he would not do it. We told him that certain allegations hadbeen made against him by Miss Balasingham. My job was to find outwhether this allegation was justified or not and we were anxious for himto place his version :
Q. And did he state his story ?
A. Yes.
Q. He says that he was not given a chance of answering questions
fully. Is that true ?
A. That is quite untrue.
Their Lordships are therefore satisfied that the interviews, so far- asthey went, were fairly conducted and gave the plaintiff an adequateopportunity of stating his case. But it remains to consider whetherin the course they took the interviews must be held to have fallen shortof the requirements of natural justice on the ground that the plaintiffwas given no opportunity of questioning Miss Balasingham. She wasthe one essential witness against the plaintiff and the charge in the endresolved itself into a matter of her word against his. In their Lordships'view this might have been a more formidable objection if tbe plaintiff
LORD JENKINS—The University oj Ceylon v. Fernando
51»
had asked to be allowed to question Miss Balasingh a.m and his requesthad been refused. But he never made any such request, although hehad ample time to consider his position in the period of ten days or sobetween the two interviews. There is no ground for supposing that if theplaintiff had made such a request it would not have been granted. Ittherefore appears to their Lordships that the only complaint which couldbe made against the Commission on this score was that they failed tovolunteer the suggestion that the plaintiff might wish to questionMiss Balasingham or in other words to tender her unasked for cross-examination by the plaintiff. Their Lordships, cannot regard thisomission, or a fortiori the like omission with respect to other witnesses,as sufficient fco invalidate the proceedings of the Commission as failingto comply with the requirements of natural justice in the circumstancesof the present case.
Counsel for the University very properly referred their Lordships t.opassages in the case of Osgood v. Nelson1- and in other authorities whichtend at first sight to state the requirements of natural justice morefavourably to the party charged than do the authorities to which theirLordships have so far referred ; see in particular the references to cross-examination in Osgood v. Nelson (supra) at pages 646, 660. But theirLordships are satisfied that when the facts and circumstances of thesecases are looked into they contain nothing to justify the conclusionthat the requirements of natural justice were not sufficiently observedon the facts and in the circumstances of the case now before them.
Tn conclusion their Lordships would observe that they are at a lossto understand how the Supreme Court, while apparently accepting thetrial Judge’s favourable assessment of the reliabiltiy of the evidence ofthe Vice-Chancellor, found it possible to reach the conclusion that noteven the gist of Miss Balasingham’s evidence was communicated to theplaintiff. Their Lordships would also venture the criticism that theSupreme Court tended to regard the case much as if it involved an appealfrom or rehearing of a trial held before the Commission rather than aninvocation of the limited jurisdiction of the Court to restrain the abuseof quasi-judicial proceedings, where the sole issue is whether the result,be it right or wrong, was arrived at with due regard to the principles ofnatural justice.
The plaintiff might have fared better if the charge against him hadbeen tried in accordance with the more meticulous procedure of a Courtof law, which would have included as of course the tendering ofMiss Balasingham for cross-examination. But that is not the question.The question is whether on the facts and in the circumstances of this parti-cular case the mode of procedure adopted by the Vice-Chancellor, inbona fide exercise of the wide discretion as to procedure reposed in himunder clause 8, sufficiently complied with the requirements of naturaljustice. In their Lordships’ opinion it has not been shown to have fallenshort of those requirements.
1 L. It, 5 B. I:. 636.
€20
Singaram v. Shanmugcun
Their Lordships’ conclusion on the merits of the case makes it un-necessary for them to consider the University’s submission to the effectthat the Court had no jurisdiction to grant the declaratory relief soughtby the plaintiff.~~
l?or these reasons their Lordships are of opinion that this appealshould be allowed, the Decree of the Supreme Court of Ceylon datedthe 13th December, 1956, set aside and the Decree of the District Courtof Colombo dated the 31st August, 1954, restored, and they will humblyadvise Her Majesty accordingly.
The plaintiff must pay ihe costs of the present appeal and also thecosts of the action in the District Court and of the appeal to the SupremeCourt.
Appeal allowed.