Legal Services and Laws of Sri Lanka
SLR - 1978-79 Vol.2, Page No - 322
GOONEWARDENA, G. P. A. SILVA
COURT OF APPEAL
VYTHIALINGAM, J., ABDUL CADER, J., AND ATUKORALE, J
C. A. APPLICATIONS. 669/78, 695/78, 766/78, 789/78, 873/78, 805/78, 880/78,
924/78, 1024/78,421/78,693/78, 750/78, 757/78, 912/78 AND 914/78
JULY 30 AND 31,1979 AND
AUGUST 6, 8, 9, 10, 13, 14, 15, 16, 17, AND 20, 1979.
Writ of Certiorari - is Commissioner holding inquiry under S. 2 of Commissions of Inquiry Act and making his reportamenable
to certiorari ? - Will certiorari lie where it would be futile ? - Natural justice - Dutytoactfairly-Impositionof
civic disabilities - Relevant person - Will quashing of findings of commission involve questioning of validity of lawswhich
is prohibited by Article 80(3) of the Constitution ?
The President by warrant appointed two one man Commissions under the Commissions of Inquiry Act to inquireintoandreport
(with their recommendations) on whether in the course of the administration by the Council or by any personappointedunder
any written law, of the affairs of each of the twelve municipalities specified in the scheduletothewarrant,therehad
been incompetence, mismanagement, abuse of power, corruption, irregularities in the making ofappointmentsofpersons,or
contraventions of any provisions of any written law and the extent of their responsibility. Upon receiving thereportsLaws
No. 38 and No. 39 of 1978 were passed imposing civic disabilities on certain persons specified in the Schedulestothetwo
laws against whom findings had been made by the respective Commissioners. Fifteen applications were thenfiledbysomeof
the persons affected by the said laws seeking certiorari to quash the findings of the two Commissioners relating to them.
Two preliminary questions of law came up for decision namely :
1. Whether the reports and inquiries conducted by the two Commissioners under the provisions of S. 2 oftheCommissionsof
Inquiry Act can be reviewed or be made the subject matter of review by the Court of Appeal and whether they areamenablein
whole or in part to a writ of certiorari ? and
2. Whether in view of the passage of Laws Nos. 38 and 39 of 1978 (whose validity cannot be canvassedinCourtinviewof
Article 80(3) of the Constitution) a writ of certiorari will in any event be futile and whether this Court will exerciseits
discretion to issue a writ which will be futile ?
(1) The questions could be considered under the three parts of the proposition, as enunciated by Slesser L. J. that -
Whenever any body of persons
(a)having legal authority
(b)to determine questions affecting the rights of subjects, and
(c)having the duty to act judicially
acts in excess of its legal authority it will be subject to the controlling writ jurisdiction of the Court.
(2)(a) Generally legal authority means statutory authority or authority under the common law. Thishasbeenextendedto
include acts of public authorities including University disciplinary authorities who are not vested with any power underany
statute or common law. But in the instant case the Commissioners being appointed bythePresidentundoubtedlyhad"legal
(b) (i) In making their report in this case the Commissioners had to come tofindingsandmakedeterminationsandany
adverse decision would undoubtedly affect the character of the persons concerned and their reputation and integrity andruin
their careers in addition to making them suffer civic disabilitiesunderthetwolaws.Thedeterminationsofthetwo
Commissioners would grievously affect these persons of their own force, proprio vigore. The conclusions would thereforehave
to be arrived at by a process consistent with the rules of natural justice after informing the party of the case againsthim
and affording him an opportunity to defend himself. The rights affected need not be legally enforceablerightsorconfined
to the jurisprudential concept of rights. They comprise an extensive range of legally recognised interests the categoriesof
which have never been closed.
(ii) In the case of the imposition of civic disabilities the findings and determinations of the Commissions were anecessary
and integral part of the proceedings which culminated in the rights of subjects being affected, whileinthecaseofthe
character and reputation of the persons concerned they have been directly affected by theveryforce,propriovigore,of
their decisions and determinations.
(c) The requirement of acting judicially in essenceisnothingbutarequirementtoactjustlyandfairlyandnot
arbitrarily or capriciously. The Commissioners had a duty to act fairly by observing the rules of natural justice.
Accordingly the Commissioners were amenable to the writ jurisdiction of the Court.
(3) It is true that certiorari is a discretionary remedy and the court will not issue the writ if it would befutiletodo
so. But here the quashing of the decision ordeterminationwillcleartheperson'scharacterandreputation.Further
although the quashing of the findings will not restore the civic rights to the person affectedyetwheneverthenecessity
arises he can take up the position that he is not a "relevant person" within the meaning of the two laws because therewould
then be no finding of the Commissioners (which is one of the requisites of the definition of relevantperson)againsthim.
Hence the issue of the writ will not be futile.
Nor will the issue of the writ involve the questioning of the validity of the twolawswhichissomethingprohibitedby
Article 80(3) of the Constitution. The laws impose civic disabilities only on every relevant person - meaning(1)aperson
who has been found by the report of the Commissioners to have committed or aided or abetted in the commission of anyofthe
acts specified therein and (2) named in the schedule to thelaws.Bothconditionshavetobesatisfiedifthecivic
disabilities are to be imposed on any relevant person. If there are no findings by the Commissioners against suchpersonhe
would not be a relevant person to whom the laws would apply. This involves only construction and applying the lawsanddoes
not touch the question of the validity of the laws in any manner whatsoever.
Cases referred to:
1. De Mel v. M. W. H. de Silva (1949) 51 NLR 105
2. De Mel v. M. W. H. de Silva (1949) 51 NLR 282
3. Saif Ali v. Mitchel & Co. et al  3 All ER 1033
4. R. v. Electricity Commissioners (1924) 1 KB 171, 205
5.Fernando v. Jayaratne (1974) 78 NLR 123
6.Regina v. Criminal Injuries Compensation Board - ex parte Lain [19671 3 WLR 348, 351,358:2AllER770
 2 QB 864, 882, 888.
7. Ridge v. Baldwin  2 All ER 66, 77, 80 AC 40 2 WL R 935 (H. L.)
8. R. v. London County Council (1931) 100 L.J. K.B 760.
9. R. v. Aston University Senate ex parte Roffey  2 QB 538
10. Dalmia v. Justice Tendolkar AIR 1958 SC 538.
11. R v. Statutory Visitors, St. Lawrence Hospital Caterham ex p. Pritchard  2 AllER 766, 773.
12. Packer v. Packer  L. R. P. 15, 22.
13. N. Q. Dias v. C. P. G. Abeywardena (1966) 68 NLR 409, 411.
14. Jayawardena v. Silva (1970) 73 N L R 289 (P.C.).
15. Pearlberg v. Varty  2 All ER 6.
16. Wiseman v. Borneman  AC 297, 308.
17. In re Ratnagopal (1968) 70 NLR 409.
18. Ratnagopal v. The Attorney-General (1969) 72 NLR 145.
19.Fernando v. Jayaratne (1974) 78 NLR 123, 126, 130.
20. University Council of Vidyodaya University v. Linus Silva (1964) 66 NLR 505 (P. C.)
21. Vine v. National Dock Labour Board  AC 488 1 QB 674
22. R v. Criminal Injuries Compensation Board, ex parte Tong (1975) 3 All ER 678, 679 (Q. B. D.).
23. Ex parte Tong (1977) 1 All ER 171, 175 (AC).
24. Nakkuda Ali v. Jayaratne (1950) 51 NLR 457, 460, 463 (PC).
25. R v. Metropolitan Police Commissioner ex parte Parker (1953) 1 WLR 1150.
26. R v. Gaming Board for Great Britain, ex p. Benaim and Khaida [19701 2 All ER 528, 533, 2 QB 417, 430.
27. Reg. v Liverpool Corporation, ex parte Tari Fleet Operators Association [ 1972] 2 Q. B.299,308,[197212WLR
28. In re Pergamon Press  3 All ER 535, 539.
29. Fisher v. Keane (1880) 49 LJR 11, 16(1878) 11 Ch. D. 353.
30. Subramaniam v. Inspector of Police, Kankesanturai (1968) 71 NLR 204, 209, 210.
31. Schmidt v. Secretary of State for Home Affairs 2 Ch. 149.
32. R v. McArthur ex P. Cornish (1966) Tas. S R. 157.
33. A. K. Ktipak v. Union of India AIR 1970 S C. 150, 154.
34. R v. London Country Council ex p. Commercial Gas Co. (1895) 11 T. L. R. 337.
35. Jaganath Rao v. State of Orissa AIR 1969 SC 215.
36. Sammbu Nath Jha v. Kedar Prasad Singha AIR 1972 SC 1215.
37. Lockwood v. The Commonwealth and others (1953-1954) 90 CLR 177.
38. W. F. Conor v. G. Waldron  AC 76
39. Rola Co. (Australia) Pty Ltd. v. The Commonwealth (1944-45) CLR 185, 203, 204.
40. Allen Berry & Co. v. Vivian Bose AIR 1960 Punjab 86.
41. R v. Legislative Committee of the Church Assembly ex p. Haynes Smith  lK. B 411, 415.
42. Dayaratne v. Bandara S C. Application No. 924/77 - S C. Minutes of 28.11.1978.
43. R v. Willington (London Borough) ex party Royce Homes Ltd.  2 All ER 643, 648.
44. R v. Hull Prison Board of Visitors 2 All ER 198, 202.
45. Maradana Mosque Trustees v. Mahmud  68 NLR 217.
46. R v. Paddington Valuation Officer 1. QB 380.
47R v. Chief Immigration Officer  lQB 333.
48. R v. Greater London Council, ex p. Blackburn  1 WLR 550.
49. Russel v. Duke of Norfolk (1949) 1All ER 109, 118.
50. Re H. K. (an Infant) [ 1967] 2 QB 617 2 W. L. R. 962(1967) 1 All ER 226.
51. Field General Court Martial (1915) 18 NL R 334, 336.
52. Dankoluwa Estates Co. Ltd. v. The Tea Controller (1941) 42 NLR 197, 206.
53. Thassim v. Edmund Rodrigo (1947) 48 NLR 121, 127.
54. Grenier's Reports[18731 P. 125.
55. Bennet v. Chappel and another  3 All ER 180.
56. British Railways Board v. Pickin  All ER 609, 618 (1975) AC 765.
57. Minister of Health v. Regem ex parte Yaffe (1931) All ER (Reprint) 343, 346.
58. Durayappah v. Fernando (1966) 69 NLR 265,270 (PC).
59. Jayawardena v. Silva (1969) 72 NL R 25 - see Case No. 14.
60. Attorney-General v. Chanmugam (1967) 71 NLR 78.
APPLICATIONS for Certiorari to quash findings of Commissions appointed under Commissions of Inquiry Act.
Nimal Senanayake with K. P. Gunaratne, Sanath Jayatileke, Henry Jayamaha, (Miss) S. M. Seneratne, Saliya Mathew, and (Mrs.)
Kusum Dissanayake for petitioner in C. A. Appln. 669/78 C. Ranganathan, Q.C. for respondent.
E. D. Wickramanayake for petitioner in C. A. Appln. 695/78
C. Ranganathan, Q.C. for respondent.
H. Mendis for petitioner in C. A. Appln. 766/78
J. W. Subasinghe with G. F. Sethukavalar and
K. Sivanandan for respondent.
H. L. de Silva with E. D. Wickremanayake for petitioner in C. A. Appln. 693/78.
K. N. Choksy with K. Kanag-Iswaran, Laksman de Alwis,
A. L. Britto Muthunayagam and Ronald Perera for respondent.
V. S A. Pullenayagam with Neelan Tiruchelvam, (Mrs) S. Gnanakaran and N. Y.CasieChettyforpetitionerinC.A.Appln.
J. W. Subasinghe with K. Sivanandan for respondent.
Nimal Senanayake with Nalin Abeynaike for petitioner in C.A. Appln. 924/78.
C. Ranganathan, Q.C. with K. Sivanandan for respondent.
Walter Perera for petitioner in C.A. Appln. 1064/78.
C. Ranganathan, Q. C. with K. Sivanandan for respondent.
Nimal Senanayake for petitioner in C. A. Appln. 421/78
J. W. Subasinghe with G. F. Sethukavalar and K. Sivanandan for respondent.
E. D. Wickramanayake for petitioner in C.A. Appln. 750/78.
K. N. Chosky with K. Kanag-Iswaran, Laksman de Alwis,
A. L. Britto Muthunayagam and Ronald Perera for respondent.
E. R. S. R. Coomaraswamy with J. C. T. Kotalawela and
R. K. Suresh Chandra for petitioner in C. A. appln. 757/78.
K. N. Choksy with K. Kanag-Iswaran, Laksman de Alwis, A. L. Britto Muthunayagam and Ronald Perera for respondent.
E. D. Wickramanayake for petitioner in C. A. appln. 914/78.
K. N. Choksy with K. Kanag-Iswaran, Laksman de Alwis
A. L. Britto Muthunayagam and Ronald Perera for respondent.
Nimal Senanayake for petitioner in C. A. appln. 805/78.
K. Shanmugalingam for petitioner in C. A. appln. 912/78.
K. N. Choksy with K. Kanag-Iswaran, Laksman de Alwis,
A. L. Britto Muthunayagam and Ronald Perera for respondent.
October 24, 1979
Shortly after the present Government came to power, after the General Elections of May 1977, His Excellency the Presidentof
Sri Lanka by Warrants under the Public Seal of the Republic, appointed two onemanCommissionsundertheCommissionsof
Inquiry Act (Cap. 393). One Commission which consisted of the former Chief Justice of Sri Lanka
Mr. G. P. A. Silva was required to inquire into and report on whether, in the course of the administration,bytheCouncil
or by any person appointed under any written law, of the affairs of eachofthetwelveMunicipalitiesspecifiedinthe
Schedule to the warrant, there had been -
(iii) abuse of power
(v) irregularities in the making of appointments of persons, or
(vi) contravention of any provisions of any written law
on the part of that Council or the person or persons aforesaid or of the MayororDeputyMayororanyotherpersonor
persons and if so, the person of persons responsible for the same and the extent to which they were responsible andtomake
recommendations with reference to any of the other matters that had been inquired into under the terms of the warrant.
The other Commissioner Mr. S. W. Goonewardena was appointed by a similar warrant inidenticaltermstoinquireintoand
report on the conduct of the administration of certain Urban Councils and towns otherthanMunicipalities.Mr.G.P.A.
Silva submitted his first interim report dated 7th December 1977, the second interim report dated 30thMarch1978andthe
Final report dated 5th June 1978. Mr. S. W. Goonewardena submitted his report dated 31st May 1978.
The Government thereafter passed Law No. 38 of 1978 and Law No. 39 of 1978 imposing civicdisabilitiesoncertainpersons
specified in the Schedules to the two Laws and against whom findings had beenmadebytherespectiveCommissioners.The
petitioners in these fifteen applications who are some of the persons named in the schedules and affected bythelawshave
applied for writs of Certiorari to quash the findings of the two Commissions relating to them, onthevariousgroundsset
out in their respective petitions.
These fifteen applications and four others originally came up before a Bench consisting of the PresidentandAtukorale,J.
As two questions of law were common to all the applications the Court directed that those two questions of law bearguedas
preliminary matters and accordingly this Bench of three judges was constituted. When these applications came up forargument
it was found that in the case of four applications notices had not been served on the respondents or that somewerenoticed
to appear on public holidays. We therefore directed that the notices be reissued andtookthefourapplicationsoffthe
The two questions of law which were set down for determination by us are whether :-
(1)The reports and inquiries conducted by the two Commissioners under the provisions of section 2 of theCommissions
of Inquiry Act can be reviewed or can be made the subject matter of review by this Court and whethertheyareamenablein
whole or in part to a Writ of certiorari, and whether
(2)In view of Laws Nos. 38 and 39 of 1978 the issue of aWritofCertiorariwillinanyeventbefutileand
accordingly whether this Court will in law issue the Writ in the exercise of its discretion.
Although the argument at the hearing ranged over a very wide field these are the twomatterswhichwearecalledonto
decide and which we decide by this order and nothing more.
The main grounds of challenge are that the Commissioners failed to observe the principles of natural justiceand/oracted
in excess of authority and/or on the ground or errors of law on the face of the records. For the purposes of determiningthe
two issues of law I shall presume that the allegations in the several petitions are true andthatonthebasisofthose
allegations the respective petitioners are entitled to the issue of the writ of certiorari. It may be that, when each ofthe
individual petitions are inquired into, the allegations may turn out to be baseless or that even if true the Courtwill,on
the facts and circumstances of the particular case, not issue the writ. But at this stage and forthispreliminarypurpose
they cannot be challenged.
This is precisely what happened in the case of De Mel Vs. M. W. H. deSilva.(1)Theissueastotheamenabilityofa
Commission appointed under the very Act as in the instant case was referred as a preliminaryissuetoaDivisionalBench
which held that it was competent for the Supreme Court to issue the writ of Prohibition. Butwhenthemattercametobe
inquired into before a single Judge it was held that the facts set out in the petitioner's affidavitdidnotaffordprima
facie grounds for holding that the respondent had divested himself of jurisdiction by reason of bias and the applicationwas
accordingly refused (De Mel v. M. W. H. de Silva(2).
In the case of Saif Ali Vs. Sydney Mitchel & Co. et al(3) the plaintiff sued asolicitorwhohadrepresentedhiminan
action which he had to abandon, for damages caused to him by the Solicitor's professional negligence. The Solicitor issueda
third party notice against the barrister who had advised him in regard to the filing of the action, claiming tobeentitled
to be indemnified in respect of any damages payable to the plaintiff on the ground that the Barrister had beennegligentin
advising who should be joined as defendant to the plaintiff's claim and in settling the pleadingsinaccordancewiththat
The Barrister applied for the third party notice and statement of claim to be struck out on the groundthattheydisclosed
no reasonable cause of action. This was tried as a preliminary issueandthequestionwaswhetheraBarristerenjoyed
blanket immunity from a claim for damages in respect of all of his work or whether the immunity extended only to hisconduct
of the case in court and to those matters of pre-trial work which were so intimately connected with the conduct ofthecase
in courtthat they could fairly be said to be preliminary decisions affecting the way that case was conducted whenitcame
to a hearing.
The case ultimately reached the House of Lords where Lord Wilberforce after stating the facts saidatpage1036"Forthe
purposes of, this appeal it has to be assumed that the factual basis for those allegations (as setoutabove)iscorrect,
that there was some degree of negligence on the Barrister's part as regards one at least ofthethreematters,thatsuch
negligence resulted in damage and that the Solicitors are entitled to indemnityorcontributionfromtheBarrister.All
these assumptions may turn out to be incorrect if the matter goes to trial, but cannot be challenged at this stage".
The respondent's contention is that under the CommissionsofInquiryActthetwoCommissionswereonlytactfinding
Commissions whose functions were merely to inquire into and make a report on the matters referred to in the warrant andthat
they did not have any legal authority to determine questions affecting rights of parties, inwhichcaseonly,soitwas
argued, they would be amenable to the writ jurisdiction of this Court. Quite naturally much reliance was placedontheoft
quoted formulation of Lord Atkin in the case of R. v. Electricity Commissioners(4)wherehesaid"wheneveranybodyof
persons having legal authority to determinequestionsaffectingtherightsofsubjectsandhavingthedutytoact
judicially, act in excess of their legal authority they are subject to thecontrollingjurisdictionoftheKing'sBench
Division exercised in these writs".
In the case ofFernando v. Jayaratne(5) Sharvananda, J. referred to this passage as a "classic definition of the scopeof
the writ" and pointed out that "this definition has been approved in its entirety by the House of Lords, thePrivyCouncil.
and by our Supreme Court". However Lord Atkin's dictum is not a general definition tobeappliedindiscriminatelytoall
cases whatever the facts and circumstances of the particular case may be. When one comes across a judicial formulationofa
general legal principle it must be remembered always that the judge has in mind only the limited rangeofcontextsofthe
particular case in which the problem arises.
Lord Atkin was dealing in that case with a scheme formulated by a statutory body and which affectedtheproprietaryrights
of parties and Lord Parker, C.J. pointed out in the case of Regina v. Criminal Injuries Compensation Board -ExparteLain
(6) that "The definition was no wider than was necessary for the purposes of that case and was not in myjudgmentintended
to be an exhaustive definition. H. W. R. Wade says "Canonical though these words are theyrequiremuchinterpretation.At
almost every point they understate the true position, the scopeofremediesbeinginrealitysubstantiallywider.For
instance the language is not apt to include review for error on the face of the record now acommongroundforcertiorari
but one which courts had forgotten when Atkin, L. J. spoke". (Administrative Law 4th Ed. pp 332, 333).
S. A, de Smith states that "The proposition was cited with approvalinmanysubsequent'cases.However,itisneither
uniquely authoritative nor self explanatory. In some situations it has offered a court uncertain guidance, inothersitis
unduly restrictive". (Judicial Review of Administrative Action 3rd editionS.340).Overtheyearsuntilcomparatively
recent times the courts had, owing to what Lord Reid says in Ridge v. Baldwin(7) was "a misunderstandingofamuchquoted
passage in the judgment of Atkin, L. J." given a very restricted interpretation to those words. Thus"legalauthority"was
said to mean statutory authority, ."rights" to mean legally enforceable rights and the "duty to act judicially" to meanthat
there must be a superadded duty to do so.
Moreover Lord Atkin's words were spoken in 1924 when the dangers of what Lord Hewart called"ThenewDespotism"werenot
quite so obvious or felt. Today there is proliferation of governmental or other bodies having wide powers to makedecisions,
findings or determinations which may affect subjects grievously and can inflictwidespreaddamageandpainofmindand
suffering beyond measure. The powers exercised by such authorities are as much capable ofabuseormisuseasthepowers
vested in statutory bodies.
This much was appreciated by Sharvananda, J. in Jayaratne's case (supra) when hesaidatpage130"Arrivingatajust
decision is the aim of all inquiries of whatever nature. An unjust decision in an administrative inquiry in the context ofa
welfare state may have greater far-reaching effect than a decision in a quasi-judicial inquiry". To prevent thismisuseand
abuse of power by such bodies and to control and to keep them within their jurisdictions the courtshavenow,particularly
during the last 25 to 30years,given to each of these terms a wider meaning. Sharvananda, J. himself pointed this out whenhe
said at page 132 "These recent decisions have thus advanced the frontiers of natural justice. To prevent abuseofpowerby
administrative bodies courts are gradually evolving guidelines based on principles of natural justice, fortheexerciseof
their powers". They did so for the purpose of exercising their writ jurisdiction or to issue declarations and injunctions.
An examination of the process by which this has been done and to see how Lord Atkin's formula has been modified is bestdone
by considering each of the four parts into which Slesser, L. J. divided it in the case of R Vs. LondonCountyCouncil,(8)
that whenever any body of persons
(1)having legal authority
(2) to determine questions affecting the rights of subjects, and
(3) having the duty to act judicially
(4) act in excess of their legal authority
they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.
Having Legal Authority
In this context generally "legal authority" means statutory authority or authority under the common law.Butthishasnow
been extended to include acts of public authorities who are not vested with any power under any statute or underthecommon
law. In the case Ex parte Lain (supra) it was argued that the Criminal Injuries Compensation Board was not a body ofpersons
having "legal authority" in the sense of having statutory authority, as the Board had been established bytheexecutivein
terms of a White Paper which had been adopted by Parliament. The Court of Appeal rejected this argument and held that ithad
legal authority to act. Mr. Choksy pointed out that the Court of Appeal's decision in that case was based onthefactthat
the Board had been set up by the executive in the exercise of the prerogative and that therefore it had a legal basis.
Dealing with this aspect of the Court of Appeal's decision H. W.R.Wade(ibid)says"Prerogativepowerisproperly
speaking legal power which appertains to the Crown but not to its subjects. . .Althoughthecourtsoftenusetheterm
prerogative in this sense, they do not always do so. For example, theCourtofAppealhasdescribedtheadministrative
scheme for compensating victims of violent crime as established 'under the prerogative'. The scheme was set upbyexecutive
action without statutory authority and the compensation distributed by theCriminalInjuriesCompensationBoard(outof
moneys voted by Parliament) consists technically of ex gratia payments. But anyone may set up a trust orotherorganisation
to distribute money and for the government to do so involves no prerogative powerit only involves the liberty possessedby
anyone who has the disposal of necessary funds. A true prerogative power such as the power to declarewarortocreatea
peer involves something which no subject may do" (pp. 204, 205).
The writ also has been held to be available against the proceedings of University disciplinaryauthoritiesnotrestingon
any statutory basis - R v Aston University Senate ex p. Roffey(9) . In that case the Universityitselfwasestablishedby
Charter under the Royal Prerogative. Itishoweverunnecessarytoconsiderthismatteratlength,becausethetwo
Commissioners in the instant applications undoubtedly had "legal authority". They were appointed by the President underthe
powers vested in him by statute and the two Commissioners themselves exercised powers and functions vestedinthembythe
Act though their duty to investigate and report emanated from their appointment by the President.
To determine questions affecting the rights of subjects
In view of the arguments addressed to us it is convenient to consider this requirement under two heads-(a)Todetermine
questions and (b) affecting rights of subjects. It was submitted that theCommissionerswerevestedwithpoweronlyto
inquire into and report on the matters set out in the warrant. It was argued that nowhere in the Act weretheygivenpower
to make findings or determinations. It was further submitted that the fact that the warrants required thetwoCommissioners
to transmit before the specified dates (later extended) their reports "setting out the findings of yourinquiriesandyour
recommendations" or that in their reports the Commissioners themselves refer to their "findings" wouldnotshowthatthey
were vested with any legal authority to make findings or determinations.
It would therefore be necessary to examine the provisions of the Act and the warrant to seewhattheCommissionerswere
empowered to do and the nature of the inquiries and report they were required tomake.Butbeforedoingsoonemaybe
permitted a general observation. Under the Commissions of Inquiry Act even in the caseofinquiriesinthemostgeneral
terms, the terms "inquiry" and "report" necessarily implies the making of findings and decisions ofsomesortonrelevant
matters. For example, where a commission is required to inquire into the working ofaparticulardepartmentandtomake
recommendations for its more efficient functioning the Commissioners would necessarily have to examinethepresentworking
of the department and decide whether the methodsemployedwereconducivetoitsefficientfunctioningandthenmake
recommendations for its improvement.
Indeed in the case of Dalmia v. Justice Tendolkar (10) 'S. R. Das, C. J. dealing with inquiries under the IndianCommissions
of Inquiry Act pointed out at page 546 "An inquiry necessarilyinvolvesinvestigationsintofactsandnecessitatesthe
collection of material facts from the evidence adduced before or brought to the notice of the person or bodyconductingthe
inquiry and the recording of its findings in its report cannot but be regardedancillarytotheinquiryitselfforthe
inquiry becomes useless unless the findings of the inquiring body are made available totheGovernmentwhichsetupthe
Section 2(i) of our Act sets out that "Whenever it appears to the Governor-General to be necessary that an inquiry shouldbe
held and information obtained as to -
(a), the administration of any department of Government or of any public or local' authority or institutionor
(b) the conduct of any member of the public serviceor
(c) any matter in respect of which an inquiry will, in his opinion, be in the interests of the public safety or welfare,the
Governor-General (now the President) may, b- warrant under, the Public Seal of the Island, appoint aCommissionofinquiry
consisting of one or more members to inquire into and report upon such administration, conduct or matter.......
In the exercise of this power commissions have been appointed to inquire into and reportonmattersranging,interalia,
from the incidence of ragging of freshmen in the University, (Sessional Paper No. , XIof1975andthecircumstancesin
which an undergraduate in. Peradeniya :Campus of, the.. University came to be shot, by the Police (SessionaI Paper No,1of
1977) to whether any. member, of the. Municipal Council of Colombo accepted or solicited or gaveorpromisedtogive,-a
bribe. De Mel v.. M. W. H. de Silva.(1) All these commissioners did make findings or determinations on questionswhichwere
relevant to their inquiry and report.
As Parker, J. said in the case of R. Vs. Statutory Visitors Caterham (11) "There must be decision or determination"forthe
writ to be available and an examination of the Warrants by which the two Commissioners were appointed, the terms ofwhichI
have reproduced in the earlier part of this judgment, itisquiteclearthatthetwoCommissionerswereenjoinedto
determine whether in the course of the administration of any of the Councils specified, there had been :
(1) incompetence, mismanagement, abuse of power, corruption, irregularities in the makingofappointmentsofpersons,or
contravention of any provisions of any written law and if so
(2) the person or persons responsible for the same and
(3) the extent of their responsibility.
These are all questions for the determination of which the President is empowered under the Act to appointCommissions.The
Commissioners would have to collect and correlate the facts, assess andevaluatetheevidenceandcometofindingsor
determinations in respect of persons responsible for the commission of the acts set out in (1) above andinregardtothe
extent of their responsibility. It is inconceivable how else they could make a report onthesematterswithoutcomingto
findings or determinations against persons responsible for the same.
In regard to one at least of these matters namely, corruption in the sense of accepting or giving abribeitwasconceded
that the Commissioners would have to come to specific findings or determinations againstpersons.Ifailtoseehowin
respect of the other matters also the Commissioners can make a report without coming to findings anddeterminationsagainst
the persons responsible for the acts mentioned. There is no magicintheword'report'.Thequestioniswhethersome
question is being determined to some person's prejudice. It is of coursepossibleforaCommissiontobeappointedto
inquire into and report on matters in respect of which it would not be necessary for findings or determinationstobemade
against any persons. But this is riot such a case.
Affecting rights of subjects
The main argument in the case has centred round the question as to whether thesedecisionsordeterminations"affectthe
rights of subjects". It was submitted that the decisions should either of their own force proprio vigore, or asanecessary
and integral part of a proceeding when complete, affect rights of subjects. It was argued that the decision mustbeastep
in a statutory scheme existing at the time the decisions were made to affect rights. For this purpose whileMr.Choksywas
not concerned with whether one gave a restricted or wide meaning to the term "rights" Mr. Renganathan submittedthatrights
here meant legally enforceable rights. It was argued that none of the findings or determinationsofthetwoCommissioners
either of their own force or as a step in a statutory process affected the rights of subjects.
One of the matters which the two Commissioners wererequiredtoinquireintoandreportwaswhethertherehadbeen
corruption in the administration of the affairs of the Councils and if so, the person or persons responsibleforthesame.
Corruption is wide enough to include bribery and in fact the M. W. H. de Silva Commission was appointed to inquireintothe
incidence of bribery under this head. In thatcasethesuperveninglegislationTheColomboMunicipalCouncilBribery
Commission (Special Provisions) Act No. 32 of 1949 applied only to that Commission. But now the Public Bodies (Preventionof
Corruption) Act (Cap. 258) makes these provisions applicable to any Commission of inquiry appointed under theAct.Sothat
if the two Commissioners. or either of them did make findings of corruption in the sense of accepting or givingofabribe
against any person who is .a member of a public body then in terms of the decisions of the Divisional Bench in De Melv.M.
W. H. de Sifira(1) (supra) the Commissioners would be amenable to the writ jurisdiction of this Court.
It was stated that neither of the Commissioners had made findings of bribery against any such person. That may or may notbe
so. It may be that even though there is no specific finding of bribery nevertheless the finding that a person wasguiltyof
corruption may necessarily imply that he was guilty of bribery. These are matters which will have to be goneintowhenthe
facts and circumstancesofeachparticularcasearetakenintoconsiderationatthehearingintotherespective
applications. Here we are only concerned with the law generally and notwiththefactsandcircumstancesofparticular
cases. So that on this ground alone the Commissioners would be amenable to the writ jurisdiction of this Court.
But it is necessary to deal with the position apart from this consideration as well. It was submitted that apart from theM.
W. H. de Silva Commission in which case legal effect affecting rights of subjects was given to itsfindingsbystatuteit
had never been held that the findings of a Commission under the Act affected rights of subjects. For one thing the factthat
it had never been done does not necessarily mean that it cannoteverbedone.Iwouldinthisconnectionquotewith
respectful approval the observations of Lord Denning M. R. in regard to a similar argument in the case ofPackerv.Packer
(12) "What is the argument on the other side? Only this - that no case has been found in which it had been done before.That
argument does- not appeal to me in the least. If we never do anything which has not beendonebeforeweshallneverget
anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both".
For another, much depends on the `facts and circumstances of each case and it will be necessary to examine thedecisionsin
each of those cases relied on. In the M. W. H. de Silva case Gratiaen, J. in making the reference to a Divisional Benchsaid
that if matters had stood in this way, that is without the supervening legislation the functionswhichtherespondentwas
charged could not properly have been described as judicial or quasi-judicial functions over which this Courtcouldexercise
any controlling jurisdiction. And 'in the Divisional Bench Wijeyawardena, C. J. said "it is true that the respondentisnot
expected to make any order in his report affecting the legal rights of the petitioner."
But this was conceded by Counsel for the petitioner and there was therefore no argument or consideration of thequestionat
all. It was argued that Counsel of the eminence of the late Mr. H. Perera, Q.C. would not have made such a concessionifit
were otherwise. But it was not necessary for his purpose to make any submissions on this question ashismainargumentin
the case on which he succeeded, was that in viewofthesubsequentlegislationtherespondent'sfunctionshadbecome
judicial or quasi-judicial functions. Indeed Wijeyawardena, C. J. himselfpointedoutthatitwasunnecessaryforthe
Commissioner to make any report affecting the rights in view of the subsequent legislation.Idonotthereforefindthe
observations in that case to be a satisfactory guide for the determination of the issues in these applications.
The next case relied on was the case of N. O. Dias v. C. P. G. Abeywardena.l13) In that caseawritofProhibitionwas
sought- against a Commissioner appointed under the -Act to inquire into alleged unlawful interception oftelephonemessages
and to make a report inter alia, as to the persons responsible for such unlawful interception or by or to whomthecontents
of messages so intercepted were divulgedon the ground ofbias.Theapplicationwasrefusedonthegroundthatthe
Commissioner's findings would have no legal effect on the rights of persons against whom findings were made.
The basis for the decision was stated by H. N. G. Fernando, S. P. J. as follows: "Let me supposethattheCommissionerin
the instant ease makes a report in which is contained a determination that X intercepted certain telephonemessagesatthe
instigation of Y and divulged the contents of the messages to Z. There is literally nothing intheCommissionsofInquiry
Act by reason of which a determination can create, affect or prejudice the rights of X, YorZ.Eventhoughthefinding
which the Commissioner is required to reach according to his terms of reference is that apersonunlawfullyintercepteda
telephone message, that finding would not be made in terms of the Telecommunication Ordinance, under whichthefunctionof
determining whether there has been such unlawful interception is committed solely to the ordinary Courts."
In other words, if a person against whom a finding is made by the Commissioner that heunlawfullyinterceptedatelephone
message, then if the person is charged in a Court of law in respect of that offence that finding would not be proofthathe
was guilty. It is for the Court to arrive at a verdict on the evidence led before, It isthesameaswhenthePrincipal
Collector of Customs electswhich of two penalties he will impose on a personwhoviolatesthe.CustomsOrdinance.The
election by itself does not affect the rights of the individual concerned. It is only when he is suedfortheamountthat
his rights would be affected and then he would have a full opportunity to place his-ease before Court -
Jayawardena v. Silva (4)
Similarly the position is the same when the Commissioner ofInlandRevenuegrantsleavetoaninspectortoraisean
assessment on being satisfied that there are reasonable grounds for suspecting loss of tax resulting from neglect,. fraudor
willful default. At that stage the assesses has no right to be heard, for when the assessment is made he canappealagainst
it and raise all matters which he could have raised at the earlier stage, for Parliamentdidnotrequireapluralityof
hearings - Pearlberg v. Varty (15).
For as lord Reid observed in Wiseman v. Borneman(16) "It is, I think, not entirely irrelevant to haveinmindthatitis
very unusual for there to be a judicial determination of, the question whether there is aprimafaciecase.Everypublic
officer who has to decide whether to prosecute or raise proceedings ought first to decide whetherthereisaprimafacie
case but no one supposes that just ice requires that he should first seek the comments of the accused orthedefendant-on
the material before him". However it was repeatedly pointed out in that case that the fact that a decisionisonlythata
prima facie case has been made out is not itself a reason why both parties should not be heard. It isasignificantfactor
and would depend on the facts and circumstances of the particular case.
Reliance was also placed on an observation made by H. N. G. Fernando, C. J. in the case of-nReRatnagopal(17).inthat
case the respondent was fined for contempt of a Commissioner appointed under the Act in that he refused to beswornandto
answer questions. The main issue in that case was as to whether the appointment oftheCommissionerwasultraviresthe
power conferred by the Act. The Supreme Court held that it was not ultra vires InthecourseofhisjudgmentH.N.G:
Fernando, C. J. said at page 422 "Since the objection of ultra vires-has to be rejected for the reasons above stated,itis
not necessary to state my reasons for agreeing with certainotheranswerstotheobjectionswhichCrownCounselalso
submitted. One such answer was that the purpose of the Commission which is merely toinquireintoandreportoncertain
matters, does not involve the exercise of judicial or quasi judicial functions or even of executivepower thatbeingso,
any failure of the Commission to duly carry out its purpose is a subject for complaint to theGovernor-Generalandnotto
the Courts". In the circumstances I cannot regard this observationasanauthoritativedecisionthatineverycasea
Commission appointed under the Act does not make findings or decisions which affect the rights of subjects. In anappealto
the Privy Council. it was held that the' appointment was ultra vires.ButthePrivyCouncilsaidnothing-about.this
observation of H.. N. G. .Fernando, C. J. - (Ratnagopal v. The A. G.(18).
The last of the local cases under the Act relied on by the respondents and one which was thesubjectofmuchcommentand
discussion at the argument was that of Fernando v. Jayaratne(19). In that case a Commission was appointed undertheActto
inquire into and report of the activities of the Fisheries Corporation, .andinteralia,onwhetheranyemployeehad
directly or indirectly ,by any act,. omission orneglectofduty,improprietyormisconductcausedanylosstothe
Corporation and if so, the extent of the loss so caused. In his reportthe.Commissioner.madecertainadversefindings
against the petitioner in respect of his work as anemployeeandheldthat"theresponsibilityforthelosstothe
Corporation on the basis of further construction of the cold room or rooms to make up for the shortfallwhichmightexceed
-Rs. 500,000/- would have to be shared between Mr. Eric Fernando (the petitioner) and Mr. Dias Abeysinghe".
Thereafter the petitioner's employment with the Corporation was terminated"inasmuchastheBoardofDirectorsofthe
Corporation have, in view of the adverse findings contained in the respondent's report lost confidenceinthepetitioner".
The petitioner moved the Supreme Court for a Mandate in the nature of a writ of Certiorari to quash the findings of
the Commissioner as the findings against him constitutedthecauseofunjustifiableandprematureterminationofhis
services and on the ground that the rule of natural justice of audi atlerarn partern had beenviolated.TheSupremeCourt
refused the application holding that the Commissioner was under no duty to act judicially, and that itsdecisionthoughit
affected the petitioner "grievously" did hot affect any rights of his.
In so far as the decision of the Supreme Court that no rights of thepetitionerinrespectofhisemploymentwiththe
Corporation, were affected. is concerned, it was if I may saysowithgreatrespect,correctandunexceptionable.The
petitioner's employment with the corporation was on a contractual basis and the relationship was one of masterandservant.
His rights in respect of his employment were under the contract and none other. Underthecontract."wasterminableon
three month's notice or on payment of three months' salary in lieu of such notice. Admittedly he had been paid threemonths'
salary in lieu of notice and his services had been terminated in terms of his contract. The termination could havebeenfor
any reason or none at all. So that the question as to whether the reason stated by the Corporation wasrightorwrongwas
immaterial. If there was a breach of contract the petitioner could have suedfordamages.Therethemattershouldhave
The law in regard to this was clarified by Lord Reid in Ridge v. Baldwin(7) (supra) wherehesaidatpage71,"Thelaw
relating to master and servant is not in doubt. There cannot be specific performance of a contract of service and themaster
can terminate the contract with his servant at any time or for any reason or for none. But if he doessoinamannernot
warranted by the contract he must sue for damages for breach of Contract. So that the question in a pure case ofmasterand
servant does not at all depend on whether the master has heard the servant in his own defence".
This question arose directly in the case of the University Council of The Vidyodaya University et al v. Linus Silva (20).It
was there held that a teacher who had an appointment with the University -is in the ordinary legal senseaservantofthe
University. It was not therefore open to him to contend that in terminating hisappointmenttheUniversity.Councilwere
bound to act judicially and should therefore have given him an opportunity to be heard after being made aware of thegrounds
upon which the termination of his appointment wastobeconsidered.ItwasheldbythePrivyCouncilthatinthe
circumstances the remedy of certiorari was not - -available to such a teacher.
In that case Lord Morris of Both-y-Gest pointed out that the House of Lords had approved the dissenting judgment ofJenkins,
L. J. in the Court of Appeal in Vine v. National Dolt Labour Board(21) in the course of which he said ."But intheordinary
case of master and servant the repudiation or the wrongful dismissal puts an end to thecontractandthecontracthaving
been wrongfully put an end to., a claim for damages arises. It is necessarily a claimfordamagesandnothingmore.The
nature of the bargain is such that it can be nothing more". So that the petitioner had no right to hisemploymentwiththe
Fisheries Corporation and the adverse findings against him by the Commissioner cannot therefore be said to have affectedany
right of his.
However this was not the basis on which the judgment of the Supreme Court proceeded in that case. Perhaps because of theway
in which the case was presented and argued Sharvananda. J. with whom Tennekoon, C. J. and Malcolm, Perera,J.agreed,went
on to consider the meaning of the term "right" in Lord Atkin's formulation and the question as towhethertheCommissioner
in that case had a duty to act judicially. He held that the "right" here meant a legally "enforceable right" for hesaidat
page 129, "The report of the respondent has no binding force, it is not a step in consequence ofwhichlegallyenforceable
rights may be created or extinguished".
In all the earlier cases referred to above this had been assumed and nearly ali of them were decided before thedecisionin
Ex pane Lain(6) (supra). Jayaratne s case (19) was the first case in which thisdecisionwasconsidered.Sharvananda,J.
rejected what he called the "gloss" on the well known definition of Atkin, L. J. suggested by Ashworth, J. in thatcase"by
omitting the words 'the rights of so that the phrase in which these words occur would read 'questions affecting subjects'".
He stated also that "it is to be noted that the other two judges, i.e. Lord ParkerandDiplockL.J.didnotassociate
themselves with Ashworth, J. in the suggested revision but went into the question whether the rights of subjects,predicated
in Atkin, L. J' s definition were legally enforceable or justifiable rights or not".
If I may say so with the utmost respect I think Sharvananda, J. was mistaken in this. In a passageinhisjudgmentinex
parte Lain(6) which has since been often quoted Lord Parker, C. J. used precisely the same language as AshworthJ.whenhe
said, "We have as it seems to me reached the position when the ambit of certiorari can be said to cover every caseinwhich
a body of persons of a public as opposed to a purely privateordomesticcharacterhastodeterminemattersaffecting
subjects provided always that it has a duty to act judicially. Looked at in this way the Board in myjudgmentcomesfairly
and squarely within the jurisdiction of this Court". The words I have emphasised clearlyindicateLordParker'sagreement
with the view expressed by Ashworth, J.
It is true that Diplock, L. J. did not go quite so far. But he was quite liberal in finding a legal effect on rights. Forhe
said at page 888 "True it is that a determination of the Board thataparticularsumbywayofexgratiapaymentof
compensation should be offered to an applicant does not give the applicant any right to sue either theBoardortheCrown
for that sum. But it does not follow that a determination of the Board in favour of an applicant is without any legaleffect
upon the rights of the applicant to whom it relates. It makes lawful a payment toanapplicantwhichwouldotherwisebe
In the case of R. v. Criminal Injuries Compensation Board - Ex Parte Tong (22) Wien, J. succinctly stated theratiodecided
in that case as follows.......... where it was held that the Board was amenable to the supervisory jurisdiction oftheHigh
Court exercised by certiorari in that it was a body of persons of a public as opposed to a purely privatecharacter,having
power to determine matters affecting subjects and a duty to act judicially". Certiorari was refused onanotherground.The
Court of Appeal however set aside the judgment and issued the writ.
In regard to the nature of the functions of the Board Lord Denning, M. R. said in ex parte Tong(23)"Thereremainshowever
the question whether this Court can interfere. Can. it issue an order of certiorari so as to quash the decision of theBoard
refusing compensation and thus in effect say that, compensation should be paid? At one-timetherewouldhavebeenmuch
debate about this. The person who is injured by a crime of violence has no legal right to compensation. Anypaymenttohim
is ex gratia. The Board's awards have no legal backing. They cannot be enforced by law. They are in truth part and parcelof
an administrative system, But now by a series of important decisions it has been hell that the High Court hasasupervisory
jurisdiction over the Board which it can exercise by way of certiorari". He then went onto refer to these cases,butitis
unnecessary for me to consider them.
The decision in this case is of great importance in determiningwhether"rights"herehavetobelegallyenforceable,
rights. Here the Board refused to make an award an the applicant had no right to receive any compensation. Sothatinthis
case it cannot be said that any right of the applicant wasaffectedbytherefusal.Thedecisioncannotthereforebe
explained on the basis of-what Diplock, L. J. said in ex parte Lain (6) that the right is affected becausethedecisionof
the Board renders lawful a payment which would otherwise be unlawful. Itcanonlybeexplainedonthebasisthatthe
decision affects subjects adversely as Ashworth, J. and Lord Parker, C. J. put it.
Then there are the licensing cases. At one time it was said that a licence was a privilege and that a decisiontograntor
revoke such a licence was not a decision affecting rights - See Nakkuda ali v. Jayaratne (24) and RV.MetropolitanPolice
Commissioner Ex Parte Parker (25) But today as Lord. Denning, M. R. pointed out inR.v:GamingBoard(26)"theyareno
longer of authority for any such proposition," and Halsbury's Laws of England 4th Ed. Vol. 1 para 83. Note 5 points outthat
the two decisions are open to serious doubt."
The length to which the Courts are prepared to go inthisregardisindicatedbythedecisioninReg.v.Liverpool
Corporation ex parte Taxi Fleet(27). In that case the Corporation sought to increase the number of taxi cab licenceswithout
hearing the Fleet Operators' Association despiteanundertakingthatitwouldnotdosowithoutaffordingtheman
opportunity to be heard. The Association had no legal right which was affected by the decisiontoincreasethenumberof
taxi cabs. Lord Denning said at page 308 "It is perhaps putting it a little high to say thattheyareexercisingjudicial
functions. They may be said to be exercising an administrative function. But even so, in our modern approachtheymustact
fairly, and the court will see that they do so"
Then there is the case of In Re Pergamon Press(28). In that case the Board of Trade ordered aninvestigationunderSection
165(b) of the Companies Act into the affairs of a public company. The matter came up to the Court ofAppealbywayofan
appeal. But that makes no difference as the Judges considered the functions and powers of the inspectors andconcludedthat
they had a duty. to act fairly and so to give the parties affected a hearing. In regard to the functionsoftheInspectors
Lord Denning said at page 539 "It is true, of course, that the inspectors are not a court of law. Their proceedingsarenot
judicial proceedings . . . . . They are not even quasi-judicial, for they decide-nothing, they determine nothing.Theyonly
investigate and report . . . . ., They do not even decide whether there is a prima facie case . . . . . . . . .
Mr. Choksy submitted that the report in that case either of its own force or asastepinastatutoryprocessaffected
rights. For he pointed out that under the Companies Act it may expose persons to criminal prosecutions or civilactions,or
bring about the winding up of the company or be used itself as material for the winding up. But in dealingwiththeeffect
and repercussions of the report Lord Denning pointed out in the same page "But thisshouldnotleadustominimizethe
significance of their task. They have to make a report which may have wide repercussions. They may if theythinkfit,make
findings of fact which are very damaging to those whom they name. They may accuse some, they maycondemnothers,theymay
ruin reputations or careers." Then, after dealing with the consequences which might flow under the Act he continued,"Seeing
that their work and their report may lead to such consequences, Iamclearlyofopinionthattheinspectorsmustact
fairly". He did not base this conclusion solely on the consequences which could flow from the Act but on that as well asthe
effect the report would have on the character and reputation of the persons concerned."
This is not something new. For much the same thing was said more than a 'hundred years ago by Jessel, M. R. inthecaseof
Fisher v. Keane (291 That was a case in which the Committee of a privateclubexpelledamemberforallegedmisconduct
without giving him a hearing. In setting aside their decision Jessel M. R, said at pages 362, 363"TheyoughtnotasI
understand it according to the ordinary rules by which justice should be administered by committees of dubs or byanyother
body of persons who decide upon the conduct of others to blast a man's reputation for ever, perhaps ruinhisprospectsfor
life without giving him an opportunity of defending or palliating his conduct".
The two Commissioners in the present applications had to inquire into and report on the question as towhetheranyofthe
persons specified were guilty of incompetence, mismanagement, abuse of power, corruption, irregularitiesinthemakingof
appointments of persons or contravention of any provisions of any written law. The persons concernedwereallpublicmen,
one a very important Minister in the former government who, at one and the same time held the portfolios of Finance,Justice
and Local Government, Mayors, Deputy Mayors and members of municipalities,Chairmen,Vice-Chairmenandmembersofother
local bodies and public Officers. To them, more so perhaps than to others, their integrity, character and reputation areall
important. Any adverse decision on those matters would undoubtedly affect their character, reputationandintegrity blast
their reputation for ever and ruin their future careers. So that apart from the loss of their civicdisabilitiesunderthe
two laws, the determination of the two Commissioners would grievously affect thesepersons,oftheirownforce,proprio
The fact that findings and determinations made by Commissioners appointed under theActmayadverselyaffectpersonsis
recognised by the Act itself. For section 16 provides that "every person whose conduct is the subject of inquiryunderthis
Act, or who is in any way implicated or concerned in the matter under inquiry shall be entitled to be represented byoneor
more advocates or proctors at the whole of the inquiryand any other person who may consider that it isdesirablethathe
should be so represented may, by leave of the Commission, be represented in the manner aforesaid". Inthelattercasethe
right to representation is at the discretion of the Commissioner. But in the former it isarightexpresslyconferredon
It was submitted that this section only gave the persons concerned a right to be represented and that if they did notchoose
to avail themselves of the right there was -nothing that anyone could do about it. It was argued that there was no dutycast
on the Commissioners to notice them or to inform them that their conduct was being investigated. IregretIamunableto
agree with this submission. Whatever the position may be in regard to the second category of persons, certainly in regardto
the first category of persons the section indicates that there is a duty cast on the Commissionerstonoticethepersons
whose conduct is being inquired into as well as the persons who are in any way implicated or concerned inthematterunder
inquiry and of the nature of the inquiries that are being made.
How else are such persons to know that they are the subject of inquiry and that adverse findings may bemadeagainstthem?
Newspapers may or may not report such proceedings. Even if they do, the persons concerned may notreadthem.Moreoverthe
Warrant may include a direction as to whether the inquiry or any part- thereof shall or shall not be held in public.Inthe
instant cases the Warrants do contain such a direction. Where such inquiry or part of an inquiry is held in camerathereis
no way in which persons concerned can know that they are the subject of such inquiry and so availthemselvesoftheright
expressly conferred on them by the section.
In regard to this right to representation in a differentcontextWeeramantry,J.saidinthecaseofSubramaniamv.
Inspector of Police, Kankesanturai(30) "It needs little reflection to realise that the right we arehereconsideringisa
many faceted one, not truly enjoyed unless afforded in -its- many varied aspects ...... Hence the right does not meanmerely
that an accused person is entitled in theory to be defended by a pleader but also that he must enjoyallthoseconcomitant
privileges without which the right is reduced to a mere cypher" and "that the lack of effective opportunity for theexercise
of the right which it assures should be viewed as a denial of the right itself" one essential requisite for theexerciseof
this right is that the person concerned should be made aware that he is the subject of inquiry. If, of course, afterhehas
been afforded the opportunity to be represented he neglects to assert hisrighttorepresentation,hecannotthereafter
complain about it. If therefore the Commissioners or either of them had failed to notice such persons that their conductwas
being inquired into or that they are concerned or implicated in thematterunderinquiryand/orfailedtoaffordsuch
persons the opportunity to be represented then they would be amenable to the Writ jurisdiction of this Court.
This aspect of the matter or the effect of the findings or determinations on the characterandreputationofthepersons
concerned did not receive any consideration at all in the earlier cases because of the basic assumption that rightsaffected
should be legally enforceable rights and that there must in addition,beasuperaddeddutytoactjudicially.Butin
Jayaratne's case(19) (Supra)_ Sharvananda, J. after quoting the observations of Lord Denning, M. R.inthePergamonPress
case (28) which I have quoted above said at page 130 "These observationsareappositetothereportofaCommissioner
appointed under the Commissions of Inquiry Act. He must come to hisconclusionsbyaprocessconsistentwithrulesof
natural justice after informing the party of the case against him".
At page 125 he stated that thepetitionerhad.........arealgrievanceandhasbeenaffectedgrievouslybythe
respondent's admitted failure to observe the principles of natural justice by affordingthepetitioneranopportunityof
contradicting or controverting the allegations against him before he made his finding against the petitioner,,.:"On
this aspect of the matter he concluded by saying at page 130 "In the light of the aboveobservations,inmyopinion,the
respondent has not acted fairly, according to law. He has failed to give the petitioner noticeoftheallegationsagainst
him and an opportunity of answering the case against him before he reported him to the Governor-General.Therewasnodue
inquiry as far as the petitioner was concerned and hence the report made by theRespondentagainstthepetitionercannot
have any value".
And yet he refused the application for-the writ because no, legally enforceable right ofthepetitionerwasaffectedand
because the Commissioner had no :dutyto act judicially, although he had -a duty to act fairly and observetherules
of natural justice. As Lord Parker, C.J. pointed out in ex parte Lain(6) (supra) '.' . . . .I cannot think thatAtkin,L.J.
intended to confine his principles to cases in which the determination affected rights in the sense ofenforceablerights."
As Halsbury points out "The term rights is to be understood in a: very broad sense". (Laws of England 4th Ed.Vol.1para-
Rights in this case are not to be confined to the jurisprudential concept of rights to which correlativelegalduties.are
annexed, They comprise an extensive range of legally recognised interests the categories of which havenever.beenclosed.
They would include rights in property, personal liberty,status,immunityfrompenaltiesorotherfiscalimpositions,
reasonable expectation of preserving or even acquiring benefits (licences, monetaryawards),andinterestsinpreserving
one's livelihood or reputation. This is by no -means exhaustive. As Lord. Denning, M.R. pointed out in Schmidt v.Secretary,
of State for Home Affairs(31) "It all depends whether hehassomerightorinterestorIwouldaddsomelegitimate
expectation of which it would not be fair to deprive him without hearing what he has to say".
In one Tasmaniam case R v. McArthur ex p.Cornish(32)whichisreferredtoinSeA.deSmith(JudicialReviewof
Administrative. Action, 3rd Ed. 157, Note 751 a Superintendent of Policewhowasempoweredtoorderlicenceestostop
serving alcohol to habitual drunkard on the basis of information supplied issued-orders inrespectofCuponinformation
supplied by C's Wife. It- was held that the order was void because C was denied the opportunity to rebut theaccusation.In
other words protection was given to the right to drink which could not betaken awaywithoutobserving-theprinciplesof
natural justice. So that in the modern view of the matter if as Sharvananda, J. did hold thattherespondentwasundera
duty to act fairly and to observe the principles of natural justice and had failed to do so and his decision had"grievously
affected" the petitioner it was eminently a case in which the writ of certiorari should have issued to get afinding,which
had "no value" as against the petitioner, out of the way.
The respondents also placed great reliance on the decision in R v. Statutory Visitors St. LawrencesHospitalCaterham.ex,
parte Pritchard (11). In that case the court refused to grant the remedy to quash a merereportbeingthereportofthe
visitors of a hospital as to the need for continued detention of a mental defective. All they were required to-do was tosee
the patient, to ascertain the means of care and supervision which would be available if shewasdischarged,andtostate
whether in their opinion, the patient was a proper person to be detained in her- own interest in the institution.Theymake
no decision or determination in regard to this. They only express an opinion and make a recommendation. Thepowertoorder
the continued detention rested inanotherbody,theBoardofControl,andforthispurposetheywouldtakeinto
consideration the opinion of the visitors. It was. no more then a piece of evidence which they were required to obtain.They
could take into consideration the report of another medical officer ifsuchwasplacedbeforethembythepatientor
Moreover, the Act itself differentiated between a mere report and a decision which the visitors had the power tomake.This
was pointed out by Parker, C. J. at page 773. "Parliament itself has pointed out it seems to me,thecontrastbetweenthe
duties of the visitors under section 5(11): (2) which is the case here and section 11(3). Section 11(3)isclearlydealing
only with the case of re-consideration when a patient comes of ageandenablesthevisitorstoarriveatadecision.
Parliament used the word 'decision' and the visitors can order the discharge or the continued detention of thepatient,and
in the event of the latter decision there is a right of appeal to the board. When they are actingundersection5(11)(3)
the visitors are clearly coming to a decision, whereas under section 5(11) (2),all they have to do is to report to theBoard
of Control whether in their opinion the defective is still a proper persontobedetainedinhisowninterestsinan
institution". The decision therefore cannot help the respondent as the report was merely an expression ofopinionanddoes
not affect the patient.
In contrast is the decision of the Supreme Court of India in the case of A. K. Kripak v. Union of India(33). In thatcasea
selection board appointed for this purpose prepared a list in order ofpreferenceforappointmenttotheIndianForest
Service. In terms of the rules this list had to be sent to the Union Public Service Commission along with therecommendation
of the Minister andtherecordsofallothereligibleofficersofState.TheCommissionwouldthenforwardits
recommendations to the Government. The regulations provided thattheofficersrecommendedbytheCommissionshouldbe
appointed subject to the availability of vacancies in the State cadre. It will be seen that virtually it wastheCommission
which selected officers for appointment and that the selection board's functionswerepurelyrecommendatoryandwasnot
binding on the Commission which could base its findings on the observations of the Minister and onaconsiderationofthe
records of the other eligible officers.
The petitioner challenged the selections made by the selection board on the ground of bias of oneofitsmembers.Itwas
held that bias was established and the selection list was quashed. In dealing with the submission thattheselectionboard
was not required to decide about any right Hegde J. pointed out at page 157 "Looking at the composition of the board andthe
nature of the duties entrusted to it we have no doubt that its recommendations shouldhave carried considerable weightwith
the U. P. S. C." Great weight was placed on the observations of Parker, C. J. in ex parte Lain(6)andthepassageinhis
judgment commencing with "With regard to Mr. Bridge's second point I cannot think that Atkin, L. J. intended toconfinehis
principles to cases in which the determination affected rights in the sense of enforceable rights" was quoted in extenso.
Similarly also a report may be quashed if it is substantially a decision rather than a mere recommendation,e.g.wherethe
Act provides that it shall be final - R v. London County Council ex p. Commercial GasCo(34).Inthatcaseanadverse
report made by a Gas tester against a Gas company which might lead to an order against it by the local authority wasquashed
on the ground that the Company had not been given an opportunity to comment on the report.
Mr. Choksy also cited several cases from other jurisdictions to show that the reports of similar commissions havebeenheld
to be mere reports and not findings or determinations affecting rights. From India he referred to Dalmia'scase(10)(supra)
Jaganath Rao v. State of Orissa(35) and Sammbu Nath Jha v. Kedar Prasad Singha(36), the Australian case ofLockwoodv.The
Commonwealth and others(37) and the decision of the Privy Council in the Canadian case of W. F. Conor v. G. Waldron (38),
In the three Indian cases as well as in the Australian case the question for decision was whether the bodiesconcernedwere
exercising judicial power or not. For the challenge in those cases was on the ground of the vires of theActitselforof
the appointment of the bodies.. For this purpose they had to examine the powers and functions of the bodies concerned tosee
if they were performing judicial functions as a Court would: It was held that they were not because they had no authorityto
determine questions affecting rights in the way in which a Court decides. They were not concerned withthequestionasto
whether the bodies concerned had a duty to act judicially.
The two are entirely different for the former is a special case of the latter. The term rights in the twocaseswouldhave
different connotations. This distinction was clearly brought out by Rich, J. in the case of Role Co. (Australia) Pty Ltd.v.
The Commonwealth (39lwhere he said ....... it is important to remember that judicial powerandpowerintheexerciseof
which there is a duty to act judicially are two different things. The former is a special case of the latter. If a personis
invested with power not to create legal rights or to impose new legal duties orliabilitiesbuttodetermineasbetween
disputants whether one of them possesses, as against the other, sortie already existing legal right to which he claims tobe
entitled or is subject to some already existing legal liability to the other which the other is claimingagainsthim,then
not only when exercising the poweris he required among other things to act judicially butthepoweritselfisjudicial
power . On the other hand if he has no authority to determine the already existing legal rightsorliabilitiesofpersons
but is empowered to impose on them new legal duties or liabilities from which they were-previously free or alter orabrogate
legal rights to which they were previously entitled, his power is not judicial, although in exercisingithemaybe,and
commonly is, subject to a legal duty to act judicially (that is, to observe the principles of natural justice)".
In the Canadian case a Commissioner appointed under the Combines Investigations Act was sued for slander in respectofsome
derogatory remarks he had made in his capacity as Commissioner. He took up the position. that hewasentitledtoabsolute
privilege as he was a judicial officer. It was held that he was not and that hewasnotprotectedbyabsoluteprivilege
because he neither had the attributes similar to those of a court nor did he act in a manner similar to thatinwhichsuch
courts act, although he may be exercising functions which required him to act judicially. These decisions are of no availto
the respondents as they deal with rights in an entirely different context.
Reference was also made to the case of Allen Berry & Co. v. Vivian Bose(40). That wasalsoacaseconcerningtheDalmia
Commission,. Justice Tendolkar having died and Vivian Bose having been appointed in his place. It is true that inthatcase
it was held that the findings of the Commission did not affect rights of subjects. But that was onaconsiderationofthe
nature and scope of the powers of the Commission. In the original Dalmia case (10)(supra) that part of Clause 10whichgave
the Commission power to recommend the "redress or punishment" which should be taken was deleted.Whatwasleftthereafter
was "the action which in the opinion of the Commission should be taken to act as a preventive in futurecases".Soitwas
held that the Commission was only a fact finding commission meant "to instruct the mindofthegovernment"inregardto
Another argument that was put forward was that since the civicdisabilitieswereimposedbyActsofParliamentpassed
subsequently it cannot be said that the decision and determinations of theCommissionswerepartofastatutoryscheme
existing at that time to affectrightsofsubjects.Supportforthissubmissionwassoughtintheobservationof
Sharvananda, J. in Jayaratne's case(19) where he said at page 128 "In deciding. whether in making his report in terms ofthe
Commission issued to him the respondent was acting judicially, the- test appears to be whetheraccordingtothestatutory
scheme the report has the probability or potentiality in law of affecting prejudicially the rights of individuals, byreason
of the statutory scheme itself making it possible forthereporttobethebasisofaffectingthelegalrightsor
liabilities of a person to whom it relates. . . . . . .
With great respect I am unable to assent to this proposition. Halsbury points out that the writs "havesometimesissuedto
persons or bodies making reports, recommendations, or preliminarydecisionsthatacquireforceonlyafteradoptionor
confirmation or other consequential action by another body". And in note 9 to thisparaitissaid"itseemsthatthe
:orders (and particularly prohibition) will issue more readily wheretheactinquestionwillhaveeffectsubjectto
confirmation of its own force or is an integral and necessary part of a proceeding which will when complete haveprejudicial
effects on the civic rights of individuals."
Mr, Choksy submitted that in the cases referred to in the Note there was already a pre-existingstatutoryschemewhereon
confirmation or adoption the findings and determination could affect rights of subjects but this need not necessarily beso,
I would refer to the words "other consequential action by another body". Such consequential action may be takensubsequently
y and need not be in the contemplation of the statute at the time thedecisionordeterminationwasmade.Itwouldbe
sufficient if the subsequent consequential action, in the present case the two laws imposing the civic disabilitiesandthe
decisions or determinations when taken together clearly show that the latterwasanecessaryandintegralpartofthe
proceedings which culminated in the affecting of subjects. It is of course necessary that it must be the report itselfwhich
must be given effect to and not the findings or determinations of some other body or person.
In the instant cases these tests are satisfied. It is the findings and the determinations of the two Commissioners whichare
given effect to by the imposition of civic disabilities on some of the persons against whom thefindings have been made.No
other person or body, independently and on its own consideration, whether using the report as evidence orrelevantmaterial
came to these findings. This is made quite clear by the Laws themselves. In thepreambleitisstatedthatwhereasthe
Commissions had made certain findings against certain persons it had become necessary in the public interest to imposecivic
disabilities on the said persons and the laws were enacted.
Then civic disabilities are imposed on certain persons who are referred to as relevant persons. Section 7 defines arelevant
person as a person whom the Commissions have found to have committed or to have aided or abetted the commissionofanyact
constituting abuse of power, corruption, and irregularities in the making of appointments or to have contravened or tohave
aided or abetted in the contravention of any written law and means each person specified in the schedule to the Lams.Itis
quite clear that, if there had been no findings against these persons, they would not have beenincludedintheschedule,
nor would civic disabilities have been imposed on them. In these circumstances it would be highly artificial andunrealistic
to say that the findings and the determinations were not a necessary, and integral part of theproceedingsbywhichtheir
civic rights have been affected. It is the findings and the determinations alone and nothing else whichhaveattractedthe
I am satisfied therefore that in the case of the imposition of civic disabilities thefindingsanddeterminationsofthe
Commissions were a necessary and integral part of the proceedings which culminated in the rights of subjects beingaffected,
while, in the case of the character and reputation the persons concerned have beenaffecteddirectlybytheveryforce,
proprio vigore, of their decisions and determinations. It has been submitted that none of the petitioners have takenupthe
position that their character and reputations have been affected for the issue of the writ. But I do notknowwhetherwhen
the supervisory jurisdiction of this court is invoked on the ground of excess of jurisdiction or error of law on the faceof
the record, parties are limited to the matters raised in their petition and affidavit, subject of course totheotherside
having sufficient notice. These are not pleadings in a civil cause or action. However,thisisamatterwhichdoesnot
arise, now but ought properly to be decided when the individual applications are taken up.
Having the duty to act judicially
It is true that for very many years anduntilcomparativelyrecenttimesitwasassumedthatinadministrativelaw
certiorari and prohibition would issue only in respect of judicial acts or administrative acts in theperformanceofwhich
the competent authority was under an express or implied duty toactjudiciallyoratleastquasi-judicially.Thiswas
perhaps due to the historical origin of the writs. At one time the writ only extended to aninferiorcourt.Lateritwas
extended to judicialorquasi-judicialacts,thecourtsbeinganxioustofindalegalbasisforinterferingin
And there it rested for several years. Shortly after Lord Atkin had made his formulation Lord Hewart, C. J. addedwhatLord
Reid in Ridge v. Baldwin(7) called a "gloss" on the words and introduced a stillfurtherlimitationonthetypeofthe
bodies to which the writs could go. In the case of R. v. Legislative Committee of the Church Assembly (41)LordHewart,C.
J. after referring to Lord Atkin's formulation said "it is to be observed that in the last sentence which I have quotedfrom
Atkin L. J. the word is not 'or' but 'and'. In order that a body may satisfy the required testitisnotenoughthatit
should have legal authority to determine questions affecting the rights of subjects,theremustbesuperaddedtothat
characteristic the further characteristic that the body has the duty to act judicially. The dutytoactjudiciallyisan
ingredient which, if the test is to be satisfied must be present".
The Privy Council gave its authority to this "gloss" in the case of Nakkuda Ali v. Jayaratne(24) Where LordRadcliffeafter
quoting the last sentence in the passage referred to above. said "It is that characteristic whichtheControllerlacksin
acting under Regulation 62." Indeed he went so far as to say that ...... the individual instances are now only ofimportance
as illustrating a general principle that is beyond dispute". In Fernando v, Jayaratne(19) (supra) Sharvananda,J.seemsto
have adopted this test for-he says at page 130 "the judicial element which must be present before he can be subjected tothe
supervisory jurisdiction of this Court through the writ of certiorari is lacking".Earlieratpage126hesays"Itis
absolutely essential that the person or body to whom these writs are to go must be a judicial body in the sense that' ithas
the power to determine and decide questions affecting the rights of subjects.: That this requirement is fundamental hasbeen
emphasised in the leading cases of Nakkuda Ali v. Jayaratne(24) and Ridge v. Baldwin". (7)
If I may say so with great respect, at least as far as this requirement of a superadded duty to act judicially isconcerned,
the two cases cannot stand side by side. They are poles apart. In regard to Lord Hewart'sglossLord-Reidpointedoutin
Ridge v Baldwin(7) (supra) at page 77 "If Lord Hewart, C. J. meant that it is never enough that a body simply has adutyto
determine what the rights of an individual should be, but that there must always be something more to impose on it a dutyto
act judicially before it can be found to observe the principles of natural justice then that appears to me tobeimpossible
to reconcile with earlier authorities". He then goes on to refer to ten such earlier authorities and says"thatisonlya
selection of the earlier authorities".
In regard to Nakkuda Ali's case (24) Lord Reid said at page 80.,"Of course if it were right to say that Lord Hewart,C.J's
gloss on what Lord Atkin stated is 'a general principle that is beyond dispute' the rest would follow. But Ihavegivenmy
reasons for holding that it does no such thing and in my judgement theoldercasesdonotillustrateanysuchgeneral
principle - they contradict it. . . . . . . So I am forced to the conclusion that thispartofthejudgementinNakkuda
Ali's case (24) was given under a serious' misapprehension of the effect of the older authoritiesandthereforecannotbe
regarded as authoritative",
In Nakkuda Ali's case (24) the Privy Council did hold that the Controller had given the errant trader adequate notice ofthe
proposed action and the reason for it and had given him the fullest opportunity of meeting the allegationsagainsthim.So
that in fact the principles of natural justice had been satisfied and the petitioner had no cause forcomplaint.Butquite
unnecessarily as it seems, the Privy Council went on to hold that the Controller in revoking the licence was onlyperforming
an administrative act and not acting judicially. Quite apart form the House of Lords, this partofthejudgmenthasbeen
widely criticised in other jurisdictions and by. almost all academic writers on administrative law, though there have beena
few defenders. I have referred to them all in the case of Dayaratne v. Bandara(42) and I do not wish to repeat them here.
The effect of the observations in Ridge v. Baldwin(7) was summarised by Lord Denning M.R.intheGamingBoardcase(26)
where he said "At one time it was said that the principles only apply tojudicialproceedingsandnottoadministrative
proceedings. That heresy was scotched in Ridge v. Baldwin".(7) In planning decisions there had beenverylittle.usemade
of: the writ after the new act was passed and in the case of R v. Hillington (London Borough) ex parte RoycoHomesLtd.(43)
Counsel suggested' that this was due to the fact thatpeoplewereundertheimpressionthatLordAtkins'formulation
required the additional characteristic that the authority should be undera dutytoactjudicially.Acceptingthisasa
possible explanation Widgery,. C. J. said "Accordingly it may be that previous efforts to use certiorari in thisfieldhave
been deterred by Atkin L. J. ''s reference to it being necessary for the body affected to have the dutytoactjudicially.
If that is so the reason for the reticence on the part of the applicants was, l think put an end to in the House of Lordsin
Ridge v. Baldwin".(7)
And finally in the case of R. v. Hull Prison Board of Visitors(44) Widgery, C. J. said "One knows' nowadays thatitisnot
necessary to show a judicial act in order to get certiorari but if the order is a judicial act it makes it thatmucheasier
to justify the making of the order". So that now "it is not necessarytolabelproceedings"judicial','quasi-judicial',
'administrative', 'investigator'it is the characteristics of the proceedings that matternot theprecisecompartmentor
compartments into which they fall" - per Sachs. L..J in the Pergamon Press Case. (28)
The Courts have now found no difficulty over holding thatcertiorariisasuitableremedyforunlawfuladministrative
determinations of all kinds such as a ministerial order taking over a school for wrongreasonsandinbreachofnatural
justice - Maradana Mosque Trustees v. Mahmud(45) the making ofaratinglistonwrongprinciples-R.v.Paddington
Valuation Officer(46) refusal of permission for entry by an immigration officer on wrong grounds - R.v.ChiefImmigration
Officer(47) and refusal of a certificate of consent for a gaming club without a fair hearing - R.v.GamingBoard(26)and
that prohibition will be granted to restrain a licensing authority from acting unfairly -R.v.LiverpoolCorporation(27)
and to prevent a local authority from licensing indecent films - R. V. Greater LondonCouncil.(48)Allthesewerepurely
administrative matters, mostly concerned with questions of policy and involving no judicial element in the strict sense.
As Lord Parker, C. J. pointed out in Ex Parte Lain (6) at pages 357 & 358 "The position as I see it is that the exactlimits
of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. Theyhavevariedfrom
time to time being extended to meet changing conditions ... The only constant limits throughout were that itwasperforming
a public duty". The truth is that in the modern view and onacorrectanalysisthedutytoactjudiciallyisnota
characteristic which is superseded but simply acorrollary,theautomaticconsequence,oftheauthoritytodetermine
questions seriously affecting subjects in some right, interest, status, standing in society or somelegitimateexpectation.
Where there is any such power there must be the duty to act judicially. If Sharvananda, J. meant only this whenhesaidat
page 126 in Fernando v. Jayaratne(19) that "It is absolutely essential that the person or body to whom these writs are togo
must be a judicial body in the sense that it has power to determine and decide questions affecting the rights of subjects"I
would respectfully agree as it is in accord with both principle and precedent. Our disagreement would then only be inregard
to the restricted meaning he has given to the term "rights" as meaning legally enforceable rights.
The extensions of the right to interfere, to bodies performing functions which affect theinterestsofindividuals,other
than judicial, has been done by resorting to the more flexible notion that in such cases there was a duty to actfairly,In
the modern concept-therefore the duty to act judicially means nothing more than the duty to act fairlythatistosayby
observing the rules of natural justice. As Hedge, J. pointed out in A. K. Kripak v. Union of India(33) (supra)atpage154
"The requirement of acting judicially in essence is nothing but a -requirement to act justly and fairly andnotarbitrarily
In the second part of his judgment Sharvananda, J. said. . . "that while there may be no dutytoactjudicially,
it does not follow that there is no duty to act fairly by observing theprinciplesofnaturaljustice".Perhapshewas
influenced in this by what Lord Radcliffe said in the Nakkuda Ali case(24) that "Can one not actreasonablywithoutacting
judicially?" Sharvananda, J. then went on to refer to the more important recent decisions in which thedutytoactfairly
had been referred to and concluded that the Commissioner had a duty to act fairly by observing the rules ofnaturaljustice
as his determination "grievously affected the petitioner". I would respectfully agreewiththesedecisionsandwiththe
conclusion that the Commissioner had a duty to act fairly by observing the rules of natural justice.
All that remained was to determine what exactly was the fairness required in the particular case. This would dependentirely
on the facts and circumstances of each case for as Tucker,L.J.pointedoutinRusselv.DukeofNorfolk(49)"The
requirements of natural justice must depend on the circumstances of the case, the nature of theinquiry,therulesunder
which the tribunal is acting, the subject matter to be dealt with and so forth". And Lord Parker, C. J. observed In Re H.K.
(An Infant) (50) "That is not, as I see it, a question of acting or being required to act judicially, but ofbeingrequired
to act fairly and to the limited extent the circumstances of any particular case allow and within thelegislativeframework
within which the administrator is working, only to that limited extent do the so-called rules or natural justice applywhich
in a case such as this is merely a duty to act fairly". So that whenever acomplaintismadebeforeacourtthatsome
principle of natural justice had been contravened the court has to decide whether the observance of that rulewasnecessary
for a just decision on the facts of the case.
I would hold therefore that the two Commissioners had a duty to act judicially in thesenseofhavingtoactfairlyby
observing the rules of natural justice in the sense I have indicated. To sum up therefore thetwoCommissionershadlegal
authority to determine questions affecting seriously the reputation and character of the persons specified as wellastheir
rights and therefore, had a duty to act fairly by observing the rules of natural justice and that they areamenabletothe
writ jurisdiction of this Court. I would accordingly answer the first question for our decision in the affirmative.
In this connection there are twootherargumentswhichwereputforwardthoughwithoutmuchenthusiasm.Thesetwo
submissions arise from the factthatourwritjurisdictionisstatutoryandiscontained'inArticle140ofthe
Constitution, the relevant portions of which are as follows :- "Subject to the provisions of the Constitution, theCourtof
Appeal shall have full power and authority . . . .to grant and issue according to law orders in the nature of writs... . ..
. . .Similar power was given to the Supreme Court by the Courts Ordinance.
The first submission is that the word "other person" should be read ejusdem generis with the other wordsandwhensoread
our jurisdiction to issue the writs is confined to courts in the strict sense. It is true that de Sampayo, J.expressedthe
opinion in the case of the Field General Court Martial(51) that the ejusdem generis rule applied in regard to section42of
the Courts Ordinance which is the same as Article. But the other two judges expressed no opinion on this matter andsecondly
that at that time the Supreme Court had no power to issue the writs of quo warranto as this power was onlygiventoitin