WICKREMASINGHE v. CHANDRANANDA DE SILVA ,SECRETARY MINISTRY OF DEFENCE

031-SLLR-SLLR-2001-V-2-WICKREMASINGHE-v.-CHANDRANANDA-DE-SILVA-SECRETARY-MINISTRY-OF-DEFENCE-.pdf


WICKREMASINGHE
v.CHANDRANANDA DE SILVA, SECRETARY MINISTRY OPDEFENCE AND OTHERS
COURT OF APPEALGUNAWARDANA, J.
CA. 861/98JULY 31, 2000
Writ of Certiorari – Kotalawala Defence Academy – Court of Inquiry -Guilty of ragging – Certificate of Discharge – Failure to give reasons -Principle of Proportionality.
The Petitioner sought a Writ of Certiorari to quash his expulsion from theKotelawala Defence Academy (KDA) consequent upon a finding of guilt ofragging and repeatedly harassing two trainee cadets.
Held :
Although the Court of Inquiry had found the Petitioner guilty of havingaided and abetted Cdt. Piyasena in the various acts of ragging, noreasons had been given by the Court of Inquiry for such finding.
It is indeed highly desirable that reasons are given for a findingbecause the availability of reasons will tend to support the idea notonly that justice had been done or meted out but that justice hadbeen done on a rational basis.
(ill) Doctrine of proportionality provides that a Court of review mayintervene if it considers that harms attendant upon a particularexercise of power are disproportionate to the benefits sought to beachieved.
(iv) By taking the decision to dismiss the Petitioner ‘having considered’the recommendation of the Court of Inquiry and not the evidence,the Board of Management had failed to retain the degree of free andunfettered judgment which it was its duty to have exercised inconsidering whether or not to dismiss the Petitioner.
Gunawardana, J.
“That justice is blind does not mean Judges should not be clearsighted. Under the Judicial Review procedure, far from being confined
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to the matters averred, the Court is less inhibited and is free to adopta more interventionist attitude – not with a view to withholding ordenying relief but with a view to grant it when justice of the casedemands that such a course of action be adopted.”
APPLICATION for a Writ of Certiorari/Mandamus.
Cases referred to :
In Re Doody – 1993 3 All ER 92.
R vs. Civil Service Appeal Board 1991 – 4 All ER 310.
Public Service Board of New South Wales vs. Osmond – 1986 ALR559.
R vs. The Mayor and Commonalty and Citizens of the City ofLondon and Another ex.p Matson – The Times – October 20, 1995.
R os. Higher Education Funding Council – 1994 1 All ER 651.
Premaratne vs. U.G.C. – 1998 3 SLR 395.
In Re Brind – 1991 – 1 AC 696.
R vs. Barnsley Metropolitan Borough Council, Exparte Hook -1976 3 All ER 452.
Chief Constable of the North Wales Police vs. Evans (1982) 1 WLR1155.
Padfleld vs. Minister of Agriculture – 1968 AC 997.
R vs. Board of Visitors of Hull Prison – (1979) 3 All ER 545.
H. Lavender vs. Minister of Houstng and Local Government -(1970) 1 WLR 1231.
Gunaratna vs. Chandrananda de Silva (1998) 3 SLR 286.
Herring vs. Templeman year (1973) – 3 All ER 569.
R vs. Manchester Metroplitan University ex parte Nolan, TheIndependent 15th July 1993.
Application for a Writ of Certiorari.
A.A. de Silva, RC. with G.F.H. Sauja for Petitioner.
Shavindra Fernando, SSC for Respondents.
Cur. adv. vult.
CA Wickremasinghe v. Chandrananda De Silva, Secretary Ministry of 335Defence and Others (Gunawardana, J.)
April 6, 2001
U.DE.Z. GUNAWARDANA, J.This is an application by the petitioner, who had beenundergoing training as an officer cadet at the Sir JohnKotelawala Defence Academy, for an order of certiorari quashinghis expulsion from the said academy as per the certificate ofdischarge (PI) dated 10.08.1998 consequent upon a finding ofguilt of ragging and repeatedly harassing two trainee cadets,named Olupeliyawa and Rajapaksa, of the same academy.
It would be, substantially, correct to say that the argumentput forward on behalf of the petitioner is two – fold and is asfollows:
that Olupeliyawa, and Rajapaksa, who were the victimsof the alleged ragging had not given evidence, let alone be cross- examined by the petitioner;
that the discharge of the petitioner from the Academywas a penalty which was grossly excessive in relation to theoffence alleged to have been committed by the petitioner therebyinvoking the principle of proportionality which ordains thatmeasures, administrative measures, in particular, must not bemore drastic than is necessary or justified by the attendantcircumstances.
The two above – mentioned arguments will be consideredin due course and I propose to consider, first, another aspect(although not raised by the learned President’s Counsel for thepetitioner) of the proceedings which culminated in the dismissalof the petitioner from the academy viz. the failure on the part ofthe Court of Inquiry to give reasons for its decisions finding thepetitioner guilty and awarding him the maximum punishmentpossible.
It is to be observed that although the court of inquiry hadfound the petitioner guilty of (in the language of the court ofinquiry itself) having “aided and abetted cdt. Piyasena in thevarious acts, of ragging perpetrated on 2194 Svc. cdt. R.M.N.
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Rajapaksa” and on cdt. OlupeUyawa, no reasons had been givenby the Court of Inquiry for such a finding. It is indeed highlydesirable that reasons are given for a finding because theavailability of reasons will tend to support the idea, not onlythat justice had been done or meted out but that justice hadbeen done on a rational basis. Had the Court of Inquiry providedreasons, that would have undoubtedly boosted the confidenceof everyone concerned, in the process that resulted in a findingof guilt as against the petitioner which brought in its train suchdire consequences from his stand point. There are recentEnglish authorities which indicate that the courts are very closeto imposing an implied duty to give reasons. According to LordMusthill’s analysis in Doody(I) it essentially boils down towhether, in the circumstances, it is fair to provide reasons.
It would be helpful to move on to consider some recentdecisions which reveal development or progress towards arequirement to give reasons. It will be clear from these casesthat the context will be highly relevant in considering whetheror not reasons ought to have been given. In R. vs. Civil ServiceAppeal Board121, a prison officer had been dismissed afteraccusations that he assaulted a prisoner. This was later foundby the Civil Service Board to have been an unfair dismissal andthe board recommended the reinstatement of the officer.However, when that was not implemented by the Home office,the Board then awarded a payment Of 6500 pounds ascompensation – a sum which was considered by the applicantto be grossly inadequate. Judicial review was applied for in orderthat he should be informed of the reason for reaching thisdecision. It was held that although there was no statutory dutyto give reasons, there was a common law requirement of naturaljustice to outline sufficient reasons to indicate whether thedecision had been lawful. Lord Donaldson MR cited the decisionin Public Service Board of New South Wales vs. Osmond131 tosupport the view that there should be sufficient reasons for itsdecision to enable the parties to know the issues to which itaddressed its mind and acted lawfully.
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Whilst the House of Lords was not willing in Doody (Supra)impose a general duty on all administrative decision makers togive reasons for their decision, the judgment represents awatershed in the judicial attitude towards the giving of reasonsby public bodies or persons. As Lord Musthill noted in the abovecase: “I find in the more recent cases on judicial review aperceptible trend towards an insistence on greater openness orif one prefers the contemporary jargon “transparency” in themaking of administrative decisions.”
In R. vs. The Mayor and Commonalty and Citizens of theCity of London and another ex. p. Matson,,4) the Court of Appealof England held that the Court of Aldermen was required byfairness to give reasons for its decision to refuse to adopt Mr.Matson’s election 's an Alderman of the city. Matson had beenelected by 54 votes to 15, but by virtue of ancient custom hiselection was subject to approval by the Court of Aldermen.Matson appeared before the Court of Aldermen and wassubjected to somewhat hostile questioning about his career andalleged support for another person in a separate contest for acouncil seat. By a secret ballot the Court of Aldermen refused toendorse Matson by 17 to 1. No reasons were given for thedecision. Neill L. J: considered that Matson’s election to publicoffice, the fact that the Court of Aldermen was a Court of recordand the effect on Matson’s reputation of his rejection by theCourt of Aldermen, were factors which meant that fairnessrequired the provision of reasons by the latter body.
Of course, no rigid rules can be spelt out as to where todraw the dividing line between cases in which reasons have tobe adduced for the decision and those in which provision ofreasons would be inapposite or unnecessary. The decision hasto be made on a case by case basis. As at present the position isthat “there being no general obligation to give reasons, therewill be decisions for which fairness does not demand reasons.”
Following on from Doody (Supra). His Lordship Sedley J.in R. vs. Higher Education Funding Council01 concluded that:
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“that there is no general duty to give reasons for a decisionbut there are classes of cases where there is such a duty to givereasons for a decision, (b) One such class is where the subjectmatter is an “interest so highly regarded by the law” for example,personal liberty – that fairness requires that reasons, at least,for particular decisions, be given as of right.” From the judgmentabove referred to one can see the courts beginning the refinementof the principles spelt out in Doody by starting to explain thedifferent situations where fairness does require the provision ofreasons for decisions.
In the R. vs. Higher Education Funding Council case above- mentioned it has been explained that the decision has to besupported or substantiated with reasons where the subjectmatter involved is “an interest so highly regarded by law.”Personal liberty has been instanced as such an interest. I thinkman’s reputation or livelihood would also fall into the categoryof an interest to be highly valued. In fact, in the case (Matson’s)referred to above, the Court of Appeal (England) held that theCourt of Aldermen was obliged to give reasons for refusing toendorse the election of Matson as an Aldermen of the city, sincethe decision of the Court of Aldermen affected the reputation ofMatson who had been elected, but whose election the Court ofAldermen had refused to confirm.
Lord Musthill’s landmark judgement in Doody (referred toabove) sets out, as explained earlier on, the circumstances wherereasons for a decision were required. Indeed, it can be said thatthe judgment imposes a general duty to give reasons whenconditions set out by his Lordship are satisfied. In Doody caseLord Musthill recognised that a duty to give reasons had arisenin that situation because the decision gravely affected theprisoner’s future. It goes without saying that there can be anincreasing variety of situations in which fairness demanded thatreasons be made knqwn to those who are affected thereby.
It cannot be gainsaid that the decision to remove ordischarge the petitioner from the Kotelawala Defence Academy
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will, for certain, blast the petitioner’s career prospects and,thereby his livelihood, as well. And what is worse, his career orlivelihood is nipped in the bud, so to say, or destroyed at theearliest stage conceivable. In an eloquent judicialpronouncement on what is, sometime, considered to be anotheraspect of the requirement of natural justice i.e. the right to legalrepresentation, Lord Denning had expressed the view that“when a man’s reputation or livelihood is at stake, he not onlyhas the right to speak by his own mouth. He also has the rightto speak by counsel or solicitor.” The observation reproducedabove although rujt germane on the aspect of duty to give reasonsfor a decision, yeMre a pointer to the fact that reputation, careeror livelihood are factors that excel others (considerations) inimportance and that those considerations are “highly regardedby the law” in the matter of deciding whether or not principlesof natural justice have been breached in making a given decision.Of course, to date, there is no general duty to give reasons,although there is a strong trend towards requiring decisionmakers to provide reasons for their decisions.
To deal with one of the two points raised by the LearnedPresident’s Counsel for the petitioner, viz. the argument basedon proportionality, although the absurd or perverse sense ofunreasonableness has been now and then the subject ofacademic and even judicial discussion, I am not all that certainwhether it can be treated as a separate head of review in ourlaw, because it has not been considered to be so, except,perhaps, in the rather stray case referred to by the learnedPresident’s Counsel (Mr. A .A. de Silva) for the petitioner, that is,the case of Premaratna vs. U.G.C.m In that case, I, who wrotethe judgment, (with His Lordship Yapa J. agreeing with me) wasmore inspired by those moving words of Portia: “quality of mercyis not strained; it droppth as the gentle rain from heaven” whichwords are not of an age but for all time. In Brtnd’s case171“Proportionality” was not explicitly recognized by the House ofLords as a separate head of review in the domestic law ofEngland although Lord Diplock mentioned it as a possiblefuture addition to the review categories of illegality, irrationality
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and so on. But on the facts of this case in hand, I have to bemore cautious in applying the test of proportionality althoughthe learned President’s Counsel for the petitioner, in his crypticsubmissions, has invited me to do so, for the petitioner in thiscase deserves no such consideration at my hands for if theallegations against him {the petitioner) are true, and I have noreason to dismiss them outright, the deeds that he had done,on the face of them, come very near to an atrocity greatlyoverstepping the bounds of practical jokes. Even in England,there has been and remains some uncertainty as to the extentto which the notion of “proportionality” may or should beconsidered to be a ground of review. This concept of course,has become a regularly used tool of legal reasoning in theEuropean Court of Justice and the European Court of HumanRights. In essence, the doctrine of proportionality, provides thata court of review may intervene if it considers that harmsattendant upon a particular exercise of power aredisproportionate to the benefits sought to be achieved whichwas one of the grounds upon which we (the court) granted reliefto the petitioner in the Premaratna case referred to above,judgment of which case was written by me. Of course, in thatcase, there were other cogent grounds, as well, for interferingwith the decision of the University Grants Commission to dismissthe student from the faculty of medicine.
However, Halsbury’s Laws of England (4th ed. vol. 1(1) re-issue 1989) recognizes proportionality in the context ofadministrative law as follows: “The court will quash exercise ofdiscretionary power in which there is not a reasonablerelationship between the objective which is sought to be achievedand means used to that end, or where punishment imputed byadministrative bodies or inferior courts are wholly out ofproportion to the relevant misconduct. The principle ofproportionality is will established in European Law and will beapplied by English Courts where European law is enforceablein the domestic courts. The principle of proportionality is stillat a stage of development in English Law; lack of proportionalityis not usually treated as a separate ground of review in English
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law but is regarded as one indication of manifestunreasonableness. ”
In the Brind’s case (supra) possibility for the integration ofthe concept of proportionality was left open. Indeed, it iscontended by some authorities that this doctrine has alreadyfound a place in English (domestic) case law. Vide R. vs.Barnsley Metropolitan Borough Council, Ex parte Hook(81 whichwas referred to tqr my judgment in the Premaratna case referredto above. Lord D^Sjhing’s comments made in the said case, thatis, in Hook’s case, regarding punishment as being “altogetherexcessive and out of proportion” have led to some discussionabout proportionality emerging or being recognized as a groundof review in England. In the case referred to above, which is amemorable decision, the facts of which are: Harry Hook, a streettrader, one evening after public lavatories had been closed,urinated in a side street near to the market where he (HariyHook) had a stall. Two council employees witnessed this event.There was a heated exchange with these council work men whoreported Hook to the market manager. The manager consideredthis matter to be a serious incident and wrote to Hook revokinghis licence which had the effect of permanently preventing Hookfrom trading at the market. Hook was granted further hearingby the council. After Hook’s case had been heard the committeetook the decision to uphold the ruling of the market manager.In the Court of Appeal (England) Lord Denning ruled that thedecision could not stand – one of the reasons being that thepunishment of depriving the man of his livelihood was out of allproportion to the original incident which, according to SriLankan ways and ways of doing things, would have been therecognised standard norm – to put it in a humorous vein.
As noted above, no reason had been given for prescribingthe maximum punishment for the petitioner; nor for even findinghim guilty. The petitioner in this case, had been pursuing acourse of study or training for nearly 03 years at the KotelawalaDefence Academy without any sort of complaint being made
acfainst him. In anv event. there is evidenee of none Ar,a if
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for this inquiry which commenced on 20th of March 1998, hewould have successfully completed his course of training inNovember of the same year. It is to be observed that underKotelawala Defence Academy Regulation No. 29, the punishmentprescribed for misconduct on the part of a cadet of the academy,is graded varying in severity from dismissal to a mereadmonition. In fact, the above regulation contemplates sevenkinds of punishment on a sliding scale. The fact that court ofinquiry itself had found the petitioner guilty of only “aiding andabetting” assumes some significance, in my view, in the matterof punishment because the recommended punishment (by sameCourt of Inquiry) for the four other cadets who had been foundguilty (at the same inquiry) of having “supported” cadet Piyasenain harassing Olupeliyawa and Rajapaksa, had only been“relegation of commissioning for one year” which, I think, meansthat the warrant conferring authority on them (the said fourcadets) will be delayed or withheld for one year. But only a verythin partition, if at all, viewing the matter pragmatically, woulddivide “aiding and abetting” from “supporting” which also meansto give help or aid. However, it may well be that the Court ofInquiry felt that, on the evidence, in apportioning the degree ofculpability – the conduct of the petitioner was more deserving ofblame. Generally speaking, it is true, that as a matter of practice,reasons, as such, are not given by even a regular court of law forthe sentence or punishment. But needless to say, that since noreasons have been given even for the finding of guilt, it wouldhave facilitated matters from the stand – point of the Court ofreview, (Court of Appeal) if reasons had, in fact, been given bythe Court of Inquiry for differentiating in the matter ofpunishment, between the petitioner, who had been found guiltyof “aiding and abetting” and four others, who had been givenvery much lighter punishment, although they (the latter four)had been found quilty of “supporting” the rag leader. It is to beobserved that the petitioner had been dismissed outright -although the petitioner had been found guilty of “aiding andabetting” which is, so to speak, akin to “supporting” – if, in factthey are not identical.
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It would have been, indeed, highly desirable if reasons hadbeen given by the Court of Inquiry because the existence ofreasons would have supported the idea that justice is seen tobe done on a rational basis. In Doody’s case (supra) therespondents, Doody and three others, were prisoners who hadbeen convicted of murder and sentenced to a mandatory termof life imprisonment. Although under the law, life imprisonmentis the only sentence for murder, it does not mean what it says
e. that the prisoner remains incarcerated for the rest of his orher natural life. The actual sentence is divided between a penalcomponent, consisting of the period that the trial judge considersnecessary and an additional risk component which is the periodafter the penal element has been served that is considerednecessary before the risk to the public is sufficiently reduced tojustify release which latter period is decided by the Home Office.It was accepted in Doody that the trial judge makes arecommendation, which does not have to be followed, afterwhich Home Secretray and senior officials at the Home officeexercise a wide deicretion. The respondents sought judicialreview of the Home Secretary’s decision regarding the pencilelement of their sentences on the ground that the Home Secretaryhad followed an unfair procedure. One significant element inthe respondents’ challenge was their argument that fairnessrequired the Home Secretray to give reasons where the HomeSecretaiy decided to impose a penalty element different fromthat recommended by the trial judge. It was held that once thepenal element had been served the prisoner was then entitledto the rights that fairness demanded in the assessment of theremainder of the sentence. This meant that a prisoner shouldbe informed why a particular term had been selected. If therewas a failure to follow the recommendation by the trial judge,the reasons have to be given. Lord Musthill held that withholdingof reasons in these circumstances was unfair.
In Doody, a second and equally important point emergesfrom the reasoning employed in the judgment. It was pointedout in that judgement that Home office was susceptible to judicialreview. But how was this to be possible ? The process of decision
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making itself could be flawed in some crucial way. But for achallenge to be mounted in the courts, reasons were obviouslyessential. It followed logically that a prisoner would need to seethe decision and the reasons for it. The wider implications ofthis conclusion are highly significant, as it has to be taken tomean that reasons have to be given in all similar or comparablecases where there is a possible challenge available under thejudicial review procedure.
In the case in hand too, it was highly desirable, if notnecessary, for reasons to have been given, at least, as to whythis particular form of punishment which was severest, i.e.dismissal from the Kotetalawala Academy was chosen, onaccount of three circumstances peculiar to this case:
because no reasons had been given for the finding ofguilt either;
it is unclear as to why the court of Inquiry selected forthe petitioner the most rigorous out of the seven punishmentsprescribed by the relevant regulation;
in any event, it would have been very desirable if thereasons for differentiating in the matter of punishment, betweenthe petitioner, on the one hand, who was found guilty of aidingand abetting (cdt. Piyasena who was the rag leader) and theother four cadets, on the other hand, who were found guilty of“supporting” Piyasena, and yet were (accordingly)recommended to be “relegated” only for one year;
the ultimate punishment which was imposed on thepetitioner gravely affected his future and virtually destroyed allhis prospects or what he was to expect in life.
I cannot look back at the whole process which culminatedin the outright dismissal of the petitioner, and say that it hadbeen fair because lack of reasons engender more than an uneaseregarding the decision of the Court of Inquiry. The decision toexpel the petitioner had devastating effects and is such a decision
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where the nature and impact of the decision itself requiredreasons to be given. It is only if reasons are available that I canbe satisfied that there is evidence of an informed exercise ofjudgment (on th^part of the Court of Inquiry) in reaching thedecisions.
If reasons had been given by the Court of Inquiry I couldhave satisfied myself or considered the question as to whetheror not the Court of Inquiry had focused its mind on exactly whatit was that had to be decided and also it had done so or reachedthe relevant decision taking into account relevant considerationsand eschewing the irrelevant. However, the court of review, thatis the Court of Appeal, it must not be lost sight of, cannot at thisstage, usurp the discretion of the Court of Inquiry which hasbeen set up to take the decisions concerning the disciplinarymatters of the relevant academy. If, in fact, the Court of Inquiryhad reached a decision after duly considering the relevant factualmatters, the Court of Appeal, under the judicial review procedure,cannot, under normal circumstances, substitute its own decisionfor that of Court of Inquiry, for judicial review does not involve areconsideration of the merits of the case and is always limitedto a scrutiny of legality. In review, the Court of Appeal is notconcerned with the merits of the case i.e. whether the decisionof the Court of Inquiry was right or wrong, but whether it waslawful or unlawful. In the words of Lord Brightman; “judicialreview is concerned not with the decision but with the decision- making process.” (Chief constable of the North Wales Policevs. Evans191. On the evidence in this case, several points arise infavour, of the petitioner which points, it is doubtful, if not certain,had not received any consideration at the hands of the Court ofInquiry: for instance, the fact that Olupeliyawa and Rajapaksahad not taken any initiative in making a complaint that theydeserted or abandoned the academy as they were subjected toharassment by the petitioner and others. The academy on itsown sought to ascertain why Olupeliyawa and Rajapaksa keptaway, without first obtaining leave. It was in response to suchan inquiry made by the academy itself that Olupeliyawa madethe allegations of ragging. Deserting the academy without
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adequate reason would have brought in its wake several direconsequences, perhaps penalties. Olupeliyawa and Rajapaksahad entered into a contract with the academy to follow the courseto its very end. They would have had to pay or refund asubstantial sum of money if they decamped or took themselvesoff without justification. In such circumstances, there is alwaysa likelihood for Olupeliyawa and Rajapaksa to seek to justifytheir abandonment of the course of training they had contractedto follow by exaggerating or even making false allegations in orderto justify their failure to continue or to participate in the courseof studies or training to its very conclusion. Assuming that thestory of harassment is true, one wonders, since no reasons hadbeen given, whether the Court of Inquiry ever had incontemplation the possibility of Olupeliyawa and Rajapaksamaking exaggerated, if not false, allegations with a view to lendjustification to their giving up the course of training. One cannotsav one wav or the other because the Court of Inquiry had notadduced any reasons. Had the Court of Inquiry being alive tothat relevant question viz. as to whether or not Olupeliyawaand Rajapaksa had exaggerated the allegations or overstatedwhat, in fact, did happen, one has reason to think that thepunishment imposed on the petitioner, perhaps, would not havebeen so drastic as that meted out. The question whether fairnessdemands the providing of reasons will depend upon the contextof decision and will have to be answered on a case by case basis.But, the points referred to above in this judgment, I think, aresufficient enough to convince anyone that the peculiarcircumstances of this case are such as to cry out for reasons, atleast, with regard to the matter of punishment, if not also forthe decision finding the petitioner guilty.
The decision of the Court of Inquiry can be said to beirrational because it is contrary to reason in that the mostrelevant reason (as to whether or not Olupeliyawa andRajapaksa had exaggerated or overstated the allegations in orderto fortify their position that their decampment was directlyattributable to harassment and ragging) had not beenconsidered by the Court of Inquiry; or, at least it is uncertain
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since no reasons had been adduced, as to whether or not theCourt of Inquiry was conscious of that aspect. It is worthrepeating that it lathe fact that both Olupeliyawa and Rajapaksaremained silent as to this matter, till they were questioned bythe academy itself, as to their failure to report or return to theacademy that engenders a feeling of strong uncertainty thatragging was not the sole cause of their decampment but theyhad a personal disinclination to continue the training and thatthey lacked the will – power to do so. Otherwise, they had noreason, as, they had, in fact, done to insist that they bedischarged even after their alleged tormentors viz. the petitionerand cdt. Piyasena, had been ordered to be sacked and removedfrom the Academy. As stressed above, as well, if the Court ofInquiry had considered the factual aspects enunciated aboveand reached a decision it would not have been, open to me, tointerfere with the decision unless, perhaps the decision wasgrossly and flagrantly unjust or unfair. When, as in this case,the Court of Inquiry had omitted to consider a highly germaneground, viz. whether Olupeliyawa and Rajapaksa hadoverstated what, in fact, did happen, or when it is unknown(since reasons have been withheld) whether or not it had doneso, then it is difficult to say that the decision of the Court ofInquiry was rested on rational grounds. As Lord Keith stated inPadfield vs. Minister ofAgriculture1101 absence of reasons, whenthere was no duty to give them, could not by itself providesupport for irrationality except, by inference that there were norational reasons. When the decision is not based on rationalgrounds or when there is room for thinking so – then review bythe courts on the ground of irrationality becomes a possibility.Most, if not all, the matters, in favour of the petitioner, consideredin this judgment were not raised by the notable President’sCounsel who appeared for him. In fact, the submission of thelearned President’s Counsel was that Olupeliyawa had not givenoral evidence before the Court of Inquiry (which was factuallyincorrect) and that Olupeliyawa had merely sent a petition onwhich the Court of Inquiry had taken the decisions complainedof. Olupeliyawa had not only given evidence but had also beencross – examined. If the submission that the Court of Inquiry
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had expelled the petitioner on the basis of a mere petition thathad been sent by Olupeliyawa had been factually correct, thatin itself without more, would have been a ground for quashingthe decisions against the petitioner. The learned President’sCounsel had stopped short and had not followed up by sayingthat the Court of Inquiry could not have arrived at the decisionsagainst the petitioner on hearsay evidence. The learnedPresident’s Counsel had not referred to the locus classicus onthe point viz. R. vs. Board of Visitors of Hull Prison1111 wherethe Court of Appeal held that prisoners facing seriousdisciplinary charges under the prison rules before the Board ofVisitors were entitled to a proper hearing. To recapitulate thefacts of that case: after a prison riot in 1976 there weredisciplinary hearings held according prison rules 1964, at whichunsupported statements by prison officers were admitted. Itwas conceded that this amounted to hearsay evidence. Thefindings of guilt were quashed and Lord Lane L. J. stated that:“it is clear that the entitlement of the Board of Visitors to admithearsay evidence is subject to the overriding obligation to
provide the accused with a fair hearingwhere a prisoner
desires to dispute hearsay evidence and for this purpose toquestion the witness, and where there are insuperable or verygrave difficulties in arranging for his attendance the board shouldrefuse to admit that evidence.”
But as pointed out above, the submission of learnedPresident’s Counsel that Olupeliyawa had not given evidence iswithout foundation. There is at least, one other feature (in favourof the petitioner) in these proceedings, which resulted in theexpulsion of the petitioner, although that aspect too was notraised on his behalf by way of argument by the President’sCounsel for the petitioner. This court is not only a court of reviewbut also court of justice and being a court of review (under thejudicial review procedure) the Court of Appeal exercises or ratherhas necessarily to exercise a supervisory jurisdiction, and assuch, I propose to consider in the sequel, that aspect as well,although not specifically raised. A view had been expressed thata court of review (under the judicial review procedure) is
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precluded from considering points not raised specifically in thepetition submitted to the Court of Appeal. I cannot bring myselfto accept that that view represents a general rule for the courtcannot pretend ijgt to notice facts which hits the court in theeye, so to say. In this case, it is clear that the Board ofManagement, which ordered the dismissal of petitioner hadacted under dictation of Court of Inquiry. Regulation 29(c) statesthat any cadet of the Academy who is guilty of proved misconductshall be subject to – dismissal if ordered by Board ofManagement.
It is clear that under the relevant rules, the exclusive powerto expel the petitioner resides in the Board of Management, But,it is clear that the Board of Management had, in expelling thepetitioner, acted, more or less, under the dictation of the Courtof Inquiry which had recommended the exapulsion. In proof ofthat, I need not do more than refer to the certificate of dismissalPI (addressed to the petitioner) where it is stated thus: “theBoard of Management of the Academy at its 325th meeting heldon 22.07.1998 having considered the recommendations ofabove Court of Inquiry decided to award the followingpunishments:
to dismiss you from the Academy w.e.f. 22.07.1998
to recover the value of the bond and agreement”
The certificate, set out above, must be taken to have saidwhat it meant and meant what it said. Plainly, according to theterms of the certificate itself, the Board of Management, inexpelling the petitioner, had taken into consideration only therecommendations of the Court of Inquiry. The Board ofManagement has failed to consider the evidence, as it shouldhave. It is worth reminding oneself that ultimate responsibilityof deciding whether or not to dismiss a cadet, whose misconducthad been proved (assuming that such misconduct had beenproved) rests solely and exclusively with the Board ofManagement.
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And to decide that question viz. whether or not to dismiss -one must necessarily have regard to or consider the relevantevidence. It is, to say the least, unfair to decide to dismiss thepetitioner as the Board of Management had, in fact, done withoutconsidering the question whether the evidence demands orjustifies a dismissal. The veiy fact that the Board of Managementhad not considered the evidence, at least, in a cursory manner,is proof of the fact that the Board of Management had notexercised its judgment independently, as it was its duty to havedone, in deciding whether or not to dismiss the petitioner. It isto be remembered that in the certificate of dismissal (PI) it isstated that the Board of Management had decided to dismissthe petitioner “having considered the recommendations of theCourt of Inquiry." It is not stated that recommendations wereconsidered in relation to or with reference to the evidence andthere is nothing to even remotely suggest that the Board ofManagement had given any thought to the evidence. By takingthe decision to dismiss petitioner, “ having considered” therecommendations of the Court of Inquiry – and not the evidence,the Board of Management had failed to retain that degree offree and unfettered judgment which it was its duty to haveexercised in considering whether or not to dismiss the petitioner.The Board of Management in dismissing the petitioner couldhave had regard to the recommendations of the Court of Inquirybut there was no obligation on the Board of Management “tocomply” with the recommendations which, in fact, the Board ofManagement had done and had thereby failed to exercise itsown discretion and judgment as to the exercise of the powersconferred on it under regulation 29 (C) which reads thus: “Anycadet of the academy who is guilty of proved misconduct shallbe subject to (i) dismissal if ordered by the Board ofManagement.”
There does not appear to have been a genuine exercise ofthe discretionary power to dismiss or not which is vested in theBoard of Management. Where a decision – maker allows someoneelse to have the dominant influence, so that the other person Is,in effect, dictating the outcome, this too is regarded as unlawful
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fettering of discretion. In H. Lavender vs. Minister of Housingand Local Government1121 application for planning permissionwas refused and the appeal was disallowed by the minister. Fromthe minister’s decision letter it was clear that the reason forrejection was that the site of the application was in an area ofgood – quality agricultural land. In these circumstances theMinistry of Agriculture was consulted and if they objected tothe grant of planning permission then the appeal wasdisallowed. In other words the minister who was supposed todecide the appeal did not really make the decision but left it toofficials in another ministry. The decision of the Minister ofHousing and Local Government refusing planning permissionwas quashed because the Minister of Housing had wronglydelegated that decision to the Minister of Agriculture and thereby,had in effect, inhibited himself from exercising a proper or anydiscretion in deciding whether planning permission should begranted. I think it would be pertinent to reproduce an excerptof my own judgement in Gunaratna vs. Chandrananda deSilva1131 at 286 which is as follows: “there is a wrongful failureon the part of the Public Service Commission to exercise itsdiscretion and its own judgment because it had improperlyparted with its own powers by accepting the “recommendation”or dictation from the respondent (Secretary / Defence). ThePublic Service Commission is not alter ego of the Secretary /Defence although it had acted as if it were.”
In any event, because it was the Board of Management thatwas vested with the power to decide whether or not to dismiss- the Board, before it decided to implement or adopt therecommendation of the Court of Inquiry – ought to have affordedan opportunity to the petitioner to show cause why thatrecommendation ought not to be adopted by the Board. It issaid: qui aliquid statuerit parte inaudita altera aequum licetdiscerit haud aequum Jecerit” (he who decides or determinesany matter without hearing both sides, although he may havedecided right, has not done justice). It is worth referring to acase which has a relevance in this context. In Herring vs.Templeman<141 the student in question was not allowed to
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continue on a course at a teacher training college because hiswork was deemed unsatisfactory. This was after the poorstandard of his work had been confirmed by an externalassessor. It was held by the Court of Appeal (England) that theacademic board only had the power to make recommendationsregarding dismissal. It was further held that although the studentwas not entitled to a full trial before the governing body yet thegoverning body was under a duty to give the student a fair chanceto show why the recommendations of the academic boardshould not be given effect to or accepted. Clearly the Board ofManagement (Kotelawala Defence Academy) which alone hadthe power to dismiss the petitioner had not given the petitioneran opportunity to show cause against the recommendations ofthe Court of inquiry being implemented.
It is I think, profitable to advert to one more case on thisaspect. R. vs. Manchester Metropolitan University, ex parte -Nolan,1151 was a case involving a student on the CommonProfessional Examination (CPE) in law who was accused ofhaving committed disciplinory offences under the universityregulations. He had taken notes into examinations and that wasspotted by the invigilators. He was given on oral hearing by theFaculty Examinations Disciplinory Committee, at which he wasrepresented. It was claimed that he had not referred to the notesand he also brought evidence in mitigation in the form oftestimonials and psychiatrist’s report. The disciplinarycommittee recognised the mitigating circumstances and foundthe applicant guilty, not of cheating, but of the lesser offence ofattempting to secure an unfair advantage. However, it was leftto the CPE Board to determine the penalty. The Board first metin July but following legal advice rescinded its decision. Whenit met again to impose a penalty in September, it did not havethe mitigating evidence before it; nevertheless, it imposed theultimate penalty, not only declaring that the applicant had failedall six examinations but denying him the chance to resit them.The decision was quashed by order of certiorari. Sedley J. heldthat Board was empowered to impose the most serious penaltywithout the decision being considered disproportionate, but to
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do so it must have all the relevant evidence. Not having thisevidence, it was held, amounted to a failure of procedural justice.
As pointed out above, there is nothing to show that theBoard of Management (Kotelawala Defence Academy) took intoconsideration anything else than the recommendation of theCourt of Inquiry – as borne out by the very certificate of dismissal(PI) itself issued by the said Board. Of course, none of the pointson which this order is rested in favour of the petitioner hadbeen urged by the eminent President’s Counsel who appearedfor the petitioner. Perhaps, he had, very generously, credited me(the court) with a knowledge of all relevant law or was backwardin imparting his knowledge to the court.
It must however be noted that this decision of mine is restedon material, attracting attention, available to, or before, the court:
that no reasons had been given by the Court of Inquiry(although not raised by the learned President’s Counsel for thepetitioner) is a fact – an incontrovertible fact, at that, which wasconspicuous;
that the Board of Management (Kotelawala DefenceAcademy) had virtually acted, as explained above under thedictation of the Court of Inquiry is also a fact which is obtrusivelyclear, be it noted, on the face of the certificate of dismissal (PI)which is a document issued by the Board of Management itself.
It is so stated on the certificate (PI) itself. That justice is blinddoes not mean judges should not be clearsighted. Besides, asstated above as well under the judicial review procedure thecourt exercises a supervisory jurisdiction. A court exercising suchsupervisory powers can inspect and even direct. Under thejudicial review procedure, far from being confined to the mattersaverred in the petition, the court is less inhibited and is free toadopt a more interventionist attitude – not with a view towithholding or denying relief but with a view to grant it whenjustice of the case demands that such a course of action beadopted. As Confucius said whilst good had to be recompensedwith good, even evil has to be recompensed with justice.
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For the foregoing reasons I do hereby grant an order ofcettiorari quashing the finding of guilt made by the Court ofInquiry, the recommendations dated 06.02.1998 made thereon,and also quashing the order of dismissal – made by the Boardof Management – as per the certificate of discharge dated
10.08.1998.
Further, the Board of Management is directed by an orderof mandamus to permit the petitioner to continue to follow thecourse of training and study (from the stage at which thepetitioner was discharged) and also permit the petitioner to sitfor all the relevant remaining examinations.
Application allowed.