103-NLR-NLR-V-71-YAKKADUWE-SRI-PRAGNARAMA-THERO-Petitioner-and-THE-MINISTER-OF-EDUCATION-The-.pdf
506
Yakkaduwe Sri Pragnarama Tltero v. Minister of Education
Present: H. N. G. Fernando, C.J., and Pandita-Gunawardene, J.YAKKADUWE SRI PRAGNARAMA THERO, Petitioner, and THEMINISTER OF EDUCATION (The Hon. I. M. R. A- Iriyagolle) andOthers, RespondentsS. C. 667/68—Application for an Injunction
Higher Education Act, No. 20 of 1966—Section 42—Vice-Chancellor of a University—Power of Minister to remove him from office—Scope of Interpretation Ordinance(Cap. 2), s. 14 (f)—Natural justice—Scope of rule audi alteram partem.
Interlocutory injunction—Considerations applicable—Irreparable damage—Rule of“ balance of convenience ”.
There is no provision in the Higher Education Act concerning the groundor the mode of dismissal of a Vice-Chancellor appointed by the Minister ofEducation in accordance with the provisions of section 42 of that Act.Sub-sections (6) and (7) of section 42 of the Higher Education Act imposing atime limit for the duration of the office must be read with section 14 (/) of theInterpretation Ordinance. Accordingly, the Minister, being the person whohas the power to appoint a Vioe-Chancellor, has thereby also the power toremove the Vice-Chancellor from office. In such a contingency, the rule ofaudi alteram partem need not be observed by the Minister.
An interlocutory injunction will not be granted if there is no likelihood ofirreparable damage being caused to the petitioner. Moreover, the burdenof proof that the inconvenience which the petitioner will suffer by the refusalof the injunction is greater than that whioh the respondent will suffer, if the,application is granted, lies on the petitioner.
H. N. Q. FERNANDO, C.J.—Yakkctduwe Sri Prdgnarama
Thero v. Minister of Education
507
Application for an injunction on the Minister of Education.
H. W. Jayeunrdene, Q.C., with Gamini Dissanayake, for the Petitioner.'
H. L. de Silva, .Crown Counsel, for the 1st Respondent.
S. Nadesan, Q.C., with N. Satyendra, for the 15th Respondent.
Cur. adv. wit.
January 15, 1969. H. N. G. Fernando, C.J.—
The petitioner was appointed the VicerChancellor of theVidyalankoraUniversity as from 1st October 1966. The appointment is regulated bys. 42 of the Higher Education Act No. 20 of 1966 which provides that theVice-Chancellor shall be a person of eminence appointed by the Ministerof Education from a panel of at least three names recommended by theNational’ Council of Higher Education.
By letter dated 30th November 1968, the 1st respondent, who is theMinister of Education, purported to remove the petitioner from theoffice of Vice-Chancellor with immediate effect.
• • •* ,
The petitioner in his present petition states that he is taking steps tofile action in the District Court of Colombo against the 1st respondentand the National Council for a declaration that he is the duly electedVice-Chancellor of the University, and further praying for an injunctionpreventing the respondents from purporting to appoint a newVice-Chancellor. Because the institution of that action has to be delayedfor 30 dayB after notice thereof is given to the 1st respondent, thepetitioner prays in this application for an interim injunction to preventand restrain the nomination or appointment of any person to the officeof Vice-Chancellor pending the final determination of the action proposedto be instituted in the District Court.
Learned Counsel appearing for the 1st respondent took the 'preliminaryobjections, firstly that the petitioner has failed to establish that theact of the Minister in making a fresh appointment to the office of Vice-Chancellor will cause irremedial damage to the petitioner, and secondly,that no injunction will lie to restrain a Minister from doing some actas a Minister of Crown. For reasons which will presently be statedhowever, it turns out that these objections need not be fully consideredin the present case.
508H. N. G. FERNANDO, C.J.—Yakkaduwe Sri Pragnarama
The.ro v. Minister of Education
Sub-section (6) of s. 42 of the Higher Education Act provides asfollows:—
“ (6) The Vice-Chancellor of a University shall, unless ho earliervacates office, hold office for a term of five years, or until he hascompleted his sixty-fifth year, whichever event occurs earlier, andshall thereafter be deemed to have voluntarily retired :
Provided, however, that if, under the preceding provisionsof this sub-section, his term of office expires in the course of anacademic year he shall continue in that office until the last dayof such academic year, and shall thereafter be deemed to havevoluntarily retired.
A Vice-Chancellor shall be eligible for reappointment. ”
The argument of the Counsel for the petitioner has been thatsub-section (6) fixes a term of five years as the period during which aperson appointed to be Vice-Chancellor will hold office and that noauthority has the power to limit that period of office. Sub-section (6)itself, it is argued, provides for two means by which the period may bereduced, one being the event of resignation by the person appointed,and the other being the eventuality that the person appointed, maycomplete his 65th year before the end of his five year term.The sub-section it is argued does not comtemplate any other means bywhich the term of office can be reduced.
Counsel relied in this connection on sub-section (7) which empowersthe Minister to make arrangements and for carrying on the office in acase where the Vice-Chancellor is temporarily unable to perform hisduties. This sub-section, it was argued, establishes by implication theintention of Parliament that the Minister will not have any power toremove the Vice-Chancellor from office.
There would be much force in these arguments if sub-sections (6) and(7) are the only provisions of law which are apparently applicable. Butthat is not the case, since consideration must necessarily be given to theInterpretation Ordinance which applies for the construction of all Actsof Parliament. Section 14 of that Ordinance provides in paragraph(/) that—
(/) for the purpose of conferring power to dismiss, suspend, orre-instate any officer, it shall be deemed to have been and to besufficient to confer power to appoint him.
Prima facie this paragraph appears to confer on the Minister in thiscase the power to dismiss the Vice-Chancellor from office because thesubstantial effect of paragraph (/) appears to be that the Minister, being
H. N. O. FERNANDO. C.J.—Yakkaduwe Sri Pragnarama509
Them v. Minister of Education
the person who has under s. 42 of the Act of 1966 the power toappoint a Vice-Chancellor, has thereby also the power to dismiss theVice-Chancellor.
Counsel for the petitioner has argued that the application of paragraph(/) of s. 14 of the Interpretation Ordinance is excluded in the presentcontext. He has urged that Parliament provided for the nominationby the National Council of a panel of 3 names, and for the appointment asVice-Chancellor by the Minister of a person of eminence chosen from thatpanel. Parliament must be held to have contemplated that no action wouldever arise for the removal from office of a Vice-Chancellor so appointed.I may say that it may not have been unreasonable for Parliamentto entertain such an intention ; but even so Parliament has not expressedthat intention in the Act of 1966. Parliament must be presumed to beaware of the general rules contained in the Interpretation Ordinance,and if it were Parliament’s intention that the Buie set out in s. 14 (/)is not to apply in the present context, simple provision to that effectcould have been made in the Act of 1966. In considering this argument,I have unfortunately to take into account an unpleasing possibility,however theoretical it may be, that a person appointed as Vice-Chancellorcan conceivably become permanently of unsound mind or be convicted ofa crime. If Counsel’s argument be correct, then there would be no lawfulmeans of removing from office a person whose continuance therein hasbecome completely objectionable in the public interest. I cannot agreethat a Court should attribute to Parliament any intention to exclude theoperation of s. 14 If) of the Interpretation Ordinance in such an event.
– I must hold for these reasons that there is nothing in s. 42 ofthe Act of 1966 which implies that the Minister has no power todismiss a Vice-Chancellor from office.
Counsel for the petitioner made a further submission that the Minister'spower to dismiss the Vice-Chancellor may be exercised only after obser-vance by the Minister of the rule of andi alteram, partem. The operationof this rule in relation to the power of dismissal was discussed in theHouse of Lords in the case of Ridge v. Baldwin1. Lord Beid there statedthat cases of dismissal appear to fall into three categories :—
Dismissal of a servant by his master;
Dismissal $rom an office held during pleasure ;
Dismissal from an office where there must be something againstthe man to warrant his dismissal.
In discussing the second of these cases Lord Beid referred to a series ofdecisions commencing from 1670 holding that where an office is simplyheld at pleasure; the person who has the power of dismissal cannot be
.1 (1963) 2 A. E. R. 66.
610H. N. G. FERNANDO, C.J.— Yakkaduwe Sri Pragnarama
Thero v. Minister of Education
bound to disclose his reasons, and that accordingly the Court cannotdetermine that it would he fair to hear the officer’s case before he isdismissed. Lord Reid then points out that the case before him is notone of an office held at pleasure, and states that “ in this case the Act of1882 permits the Watch Committee to take action (i.e., to dismiss theofficer) only on the grounds of negligence or unfitness
In Ridge v. Baldwin the relevant Statute provided that “ the WatchCommittee may at any time dismiss any borough constable whom theythink negligent in the discharge of his duty, or otherwise unfit for s irvice *Having regard to this statutory provision, Lord Reid placed the case inthe third class which I have mentioned above, and proceeded to refer to.“an unbroken line of authority to the effect that an officer cannotlawfully be dismissed without first telling him what is alleged againsthim and hearing his defence or explanation **.
Let me here repeat that the third class of case which Lord Reidconsidered was the class “ where there must be something against a manto warrant his dismissal It is important to remember that the. requirement that there must be some such fault on the part of the holderof an office is not derived by the Court from its own opinion, but isinstead derived (as it was in the case of Ridge v. Baldivin) from expressprovision in the Statute which constitutes an office. Thus thepronouncement, that the rule of audi alteram partem must be observed inthe third class of case, means only that where a statute provides fordismissal on some specific ground or after observance of some specificprocedure, an officer must be heard in his defence unless the need for sucha hearing is expressly excluded by the prescribed procedure.
Learned Counsel for the petitioner contended that the office of Vice-Chancellor under s. 42 of the Act of 1966 is not one of a servant, and isnot one held at pleasure ; and that it therefore falls within neither of thefirst two classes specified above. He contended on that basis that thisoffice falls within the third class, and that accordingly the rule of audialteram partem should have been observed. This argument in my opinion,ignores the consideration to which I have just referred, namely that acase is not within the third class unless the power of dismissal is regulatedby the Statute which constitutes the office. Moreover it seems to methat in every case where the unfettered power of dismissal from an officewhich s. 14 (/) of the Interpretation Ordinance confers is exercisable,that is to say where the Legislature has said nothing concerning theground or mode of dismissal, the office is held at pleasure or is at the leastheld on terms equivalent to the terms of an office held at pleasure. Acase where s. 14 (/) applies is not one of master and servant, nor is it onewhere a Statute provides for dismissal oh a stated ground or accordingto stated procedure, and is not therefore a case falling into either the.
H. N. O. FERNANDO, C.J.—Yakkaduwe Sri Pragnarama
Thero v. Minister of Education
511
firet or the third class in Lord Reid's classification. Such a case, if notidentical with the second class, cannot be distinguished on any. groundfrom the cases placed by Lord Reid in that class.
I hold therefore that the petitioner was validly removed from officeby the Minister.
«
I have discussed the rule of audi alteram partem on the assumptionthat it was not observed in this case by the Minister. But for purposesof record I must note that the affidavit of. the Minister avers that he didsummon the petitioner to a Meeting on 18th November 1968, and did onthat occasion afford to the petitioner an opportunity to state any reasonsagainst the course of action which the Minister ultimately took. Thisaverment has been subsequently denied by the petitioner, but it is notnecessary to determine which of the two conflicting versions are correct,because for reasons already stated, my conclusion is that this is not acase in which the rule of audi.alteram partem need have been observed bythe Minister.
I hold also that one at least of the objections taken by learned GrownCounsel must be upheld, namely that irreparable damage will not becaused to the petitioner if the injunction for Which he prays is not granted.Assuming for the moment that the dismissal of the petitioner from officewas unlawful, it would follow that any new appointment to the officeof Vice-Chancellor would be equally unlawful. If then such a newappointment is made, the petitioner will nevertheless continue to holdhis office, and ample remedies will be available for him to resistencroachment upon his lawful rights and functions by the person newlyappointed.
I rely also on the rule of the “ Balance of Convenience ” stated inHalsbury (Vol. 21, 3rd Ed., p. 366):—
“ Where any doubt exists as to the plaintiff’s right, or if his rightis not disputed, but its violation is denied, the Court, in determiningwhether an interlocutory injunction should be granted, takes intoconsideration the balance of convenience to the parties and the natureof the injury which the defendant, on the one hand, would suffer ifthe injunction was granted and he should ultimately turn out to beright, and that which the plaintiff, on the other hand, might sustainif the injunction was refused and he should ultimately turn out to beright. The burden of proof that the inconvenience which theplaintiff will suffer by the refusal of the injunction is greater than thatwhich the defendant will suffer, if it is granted, lies on the plaintiff.”
M2
The Solicitor-General v. Ava Umma
Even if some doubt might be thought to exist as to the validity of theMinister’s act in removing the petitioner from office, it is in the interestsof the University that a new appointment be made.
For the reasons which have now been stated we dismissed thepetitioner’s application after hearing the arguments of Counsel.
Application dismissed.