Legal Services and Laws of Sri Lanka

SLR-1995 Vol.2-P167

SLR - 1995 Vol.2, Page No - 167


G. P. S. DE SILVA, C. J.



S.C. 190194

MARCH 19, AND JUNE 05, 1995.

Constitution - Article 11 of the Constitution - Student - Assaulted during school hours by school Authorities -PrivateAct
not involving use of the coercive power of the State - Whether Executive or Administrative action - Actingundercolourof
office - Disciplinary Action not violative of Fundamental Rights -ExcessofDisciplinaryPower-ViolationofRights
Article 11.

The petitioner who was a Minor and a student of Sri Subhuthi Vidyalaya alleged that he was assaulted during schoolhoursby
the Principal, Deputy Principal, Vice Principal and a teacher. It was further allegedthathisfatherhaddetectedsome
persons having brought arrack and ganja to the school during a Sports Meet, whichhaddispleasedtheschoolAuthorities
resulting in the assault on the Petitioner.
The Respondent's position was that, the Petitioner's father was displeased as he had not been given employment asawatcher
by the school authorities and this application was at the instigation of the father, out ofmaliceandvengeance.Itwas
further alleged that, the Petitioner was sent home for misconduct.

(i) The contention that the alleged assault was purely individual private Acts not involving the use ofthecoercivepower
of the State and the impugned acts were in no way connectedwiththeperformanceofofficialfunctionsandhencethe
impugned acts do not constitute Executive or Administrative action cannot be accepted.
(ii) Discipline of students is a matter within the purview of school teachers. It would follow that whenever they purportto
maintain discipline, they act under the colour of office. If in doing so they exceed their power they may becomeliablefor
infringement of fundamental rights by Executive or Administrative action.
(iii) In view of the seriousness of the derelictions and the issues involved, the claim of the Respondent thattheimpugned
acts involved disciplinary action not violative of fundamental rights cannot be accepted.
Objectively viewed the assault on the petitioner by the respondents was in excess ofdisciplinarypowerandviolativeof
rights under Article II.
Per Kulatunga, J.
" This court must by granting appropriate relief reassure the Petitioner that thehumiliationinflictedonhimhasbeen
removed and his dignity is restored. That would in some way guaranteehisfuturementalhealthwhichisvitaltohis
advancement in life."
Cases referred to:
1. Theachanamoorthi v. Attorney-General - FRD (1) 129

2. Velmurugu v. Attorney-General FRD (1) 180

3. Samanthilaka v Perera - 1990 1 SLR 318

4. Vivienne Goonewardena v. Perera FRD (11) 426 at 438.
APPLICATION complaining of infringement of a Fundamental Right.
D. W. Abeykoon with L. L. Wanigasekera for Petitioner.

P. G. Dep, S.S.C., for Attorney-General

R. K. W. Goonesekera with J. C. Weliamuna for 1-3 Respondents

July 21, 1995.

At the time of the incident which gave rise to this application, the Petitioner was 17 years of age.Hewasastudentof
Battaramulla Sri Subhuthi Madhya Maha Vidyalaya. He complains that on 03.05.94, he was assaulted during school hoursbythe
1st, 2nd and 3rd respondents, who were the Deputy Principal, Vice Principal and a teacher respectively, ofthatschool.On
that day, the Principal of the school was absent. He alleges that by such conduct the respondents have infringedhisrights
under Article 11 of the Constitution.
On 28.04.94 the Principal had issued a certificate (P6) in respect of the petitioner, attherequestofthepetitioner's
father, to enable the petitioner to be admitted to another school, in view of an impending change of residence.

According to P6, the petitioner had been the President of the School Buddhist SocietyandtheLiteraryUnion.Hewasa
School Prefect and a member of the School Debating Team and the Leader oftheAntiNarcoticCampaign.Hewasalsothe
Secretary of the school Cricket Association. He was a person of good conduct and character.
The petitioner alleges that in 1993, his father had detected some persons having broughtarrackandganjatotheschool
during a sports meet. This detection displeased the 1st and 3rd respondents. The respondentsallegethatthepetitioner's
father was displeased with the school staff as he had not been given employment as a watcherandthatthepetitionerhas
filed this application on the instigation of his father, out of malice andvengeance.However,theformerPrincipalhad
written to the petitioner's father on 29.10.93 a letter (P7) addressing him as "Dear Mr. Tilak"andappealingagainsthis
resignation from posts in the School Development Society. The Principal states therein that the school valuedtheviewsof
the petitioner's father and that his membership of the Society was indispensable.
According to the complaint made to the police by the petitioner's mother on 04.05.94 and the affidavits of the1stand2nd
respondents, the petitioner had been going about the school premises on 03.05.94 saying that he waslookingforhisclass
teacher. In his statement to the police which was recorded at Mulleriyawa Mental Hospital on 30.05.94(P5),thepetitioner
says that as he was not well on 03.05.95 he wanted to leavetheschoolearly,afterinformingtheclassteacher.The
respondents state that Mrs. Fernando the class teacher had said that the petitioner waslyingwhenhesaidthathewas
searching for herwhereupon the 2nd respondent instructed him to return to his classroomat that stage thepetitionerdid
not behave like a student. The 1st respondent says that the 2nd respondent reported to him that the petitionerhadliedto
him, saying that he was searching for Mrs. Fernandoand that when he was asked toreturntotheclassroom,hedidnot
behave like a student.

The petitioner says that the 1st respondent (who was in charge of the school in the absence of the Principal)sentforhim
and when he went up to the Principal's office, he was assaulted by the 1st, 2ndand3rdrespondents.The2ndrespondent
struck him close to his eye while the 3rd respondent kicked him. It is common ground that beforetheallegedassault,the
2nd respondent had addressed the petitioner using the word "Thamuse" (you) to which the petitioner had takenexception.The
respondents deny the alleged assault but admit the 2nd respondent having slappedthepetitioneronce.Theysaythatin
return, the petitioner slapped the 2nd respondent. The 1strespondentmerelyrestrainedthepetitionerandhandedthe
petitioner over to another teacher. The petitioner was detained until 1.30 p.m. after which hewasallowedtoleavewith
instructions to call over at the school with his parents for an inquiry.

The petitioner's application which is in English and presumably drawn up by his lawyer does not set out allthedetailsof
the incident. But his statement made to the police (in Sinhala) contains the details of the incident which aresupportedby
the respondent's version, except in regard to the alleged assault. His version given tothepoliceisalsosupportedin
every detail by the statement of his mother made to the police, subject however, to the weakness that she has failed tofile
a supporting affidavit. However, the fact that she made a statement to the police has not been specially denied.
On 03.05.94 the 1st respondent made a log entry at the school, stating that thepetitionerwassenthomeonaccountof
misconduct with instructions to call over with his parents. On 04.05.94 the respondents caused the Principaltosummonthe
Disciplinary Committee of the school which approved the suspension of the petitioner for theallegedassaultbyhim.The
matter was also reported to the Deputy Director of Education, Homagama. The petitioner's father was requested inwritingto
attend a disciplinary inquiry on 09.05.94 against the petitioner on a charge of breach of disciplinebut he repliedstating
that he would not attend the inquiry as he considered the conduct of the authorities to be unsatisfactory.
It is not known as to whether the Education Department took any decision in the matter. There is also no evidenceofaction
taken by the police to institute a prosecution on the complaint of assault on the petitioner by therespondents.Thus,the
task of considering the petitioner's grievance has fallen entirely on this Court.

The medical evidence in respect of the petitioner has been of assistance in the consideration of the petitioner'scomplaint.
As per medical records, the petitioner had been admitted to Mulleriyawa Mental Hospital on 04.05.94. The Psychiatric, Dr.D.
R. de Silva has recorded that it was the petitioner's first admissiontothathospital.Thepetitionerwasthoughtful,
refusing meals, and was crying on and off. He had difficulty in getting into sleep. He refused to go back to school.Hewas
talking nonsense and was fearful. He was apparently well until 03.05.94 when he was assaulted bythe"AssistantPrincipal"
and two others, after which he developed the above symptoms. He had no previous history of psychiatricillness.Thedoctor
has also recorded the fact that the petitioner is the youngest child in his family and was a school prefect. Hewasnotan
alcoholic or a smoker. After admission, the petitioner was first treated with tranquilizers.
The petitioner had contusions and abrasions over the left upper arm and pain and tenderness over the left temporalareaand
lumber region.

On 05.05.94 the petitioner vomited once. He still had pain in the left temporal area. He also hadaheadache.Hesuffered
from anxiety state. He was given hot water fermentation and treated with paracitimol and tranquilizers. Even on19.05.94he
had giddiness. After continued treatment, he was discharged on 02.06.94. The diagnosis was "phobic anxiety".
Learned counsel for the 1st, 2nd and 3rd respondents submits that the alleged assault was apurelyindividualprivateact
not involving the use of the coercive power of the State,thattheimpugnedactswereinnowayconnectedwiththe
performance of official functions of the respondentsthat school teachers are not vested withthecoercivepowerofthe
Stateand that "they are expressly prohibited from laying a fingeronthestudents "hencetheimpugnedactsdonot
constitute executive or administrative action. He submits that the application must fail forthelackofthis"essential
element." He relies on Thadchanamoorthi v. A.G. (1)Velumurugu v. A.G. (2), and Samanthilaka v. Perera (3).
In the early decisions of this Court the defence was often advancedbytheStatethattheimpugnedactsofoffending
officers were purely private acts for which the State was not liable. The dicta relied uponbyCounselformpartofthe
consideration of that issue. When the Court in some of the cases cited defined "executive or administrativeaction"inthe
sense of acts involving the use of the "coercive power" of the State, the reference there was to acts of policeofficersin
the course of law enforcement.
However, in Vivienne Goonewardene v. Perera (4) Soza J., defined "executive or administrative action"moreaccuratelywhen
he said:
"The State no doubt cannot be made liable for such infringements as may be committed in the course of personal pursuits ofa
public officer or to pay off his personal grudges. But infringements of fundamental rights committed under colourofoffice
by police officers must result in liability being cast on the State".
In the instant case, the facts clearly show that the respondents were acting under the"colourofoffice".Infact,the
written submissions filed on 08.12.94 on behalf of the respondentsstateinteralia,"ItisadmittedthattheDeputy
Principal in charge of discipline slapped the petitioner once,onadisciplinarymatter".Iagreethatdisciplineof
students is a matter within the purview ofschoolteachers.Itwouldfollowthatwhenevertheypurporttomaintain
discipline, they act under the colour of office. If in doing so,theyexceedtheirpower,theymaybecomeliablefor
infringement of fundamental rights by executive or administrative action.
For the foregoing reasons, I reject the preliminary objection raised by Counsel for the 1st to 3rd respondents.
The medical evidence supports the petitioner's version. The injuries found on him cannot be attributed to a single slap.The
petitioner who was admittedly a very good student and a school prefect suffered by the assault to theextentthathealso
became mentally ill requiring hospitalization at the mental hospital for a month. He had no history ofpsychiatricillness.
I am satisfied that his condition was attributable to the humiliation he suffered by the assaultonhim,particularlyfor
the reason that up to the date of the incident, he must have enjoyed a high reputation at the school. Thepositionheheld
at the school is established by the certificate P6 issued by the Principal of the school.

The petitioner was 17 years of age at the time of the assault. Being a teenager, he was a personwhoislikelytosuffer
humiliation and nervous shock by violence of the kind complained of by him. I am of the view that theimpugnedassaultwas
both cruel and degrading. Thus the allegation by the 2nd respondent that the petitioner was lying when he explainedthathe
was searching for his class teacher does not appear to be justified on thefacts.Assuch,thesaidallegationwasan
insult. The petitioner probably resented it. It was in that context that the petitioner was addressed as "thamuse".Insuch
a context that word did not connote respect, as claimed by the respondents, particularly in the light of thefactthatthe
2nd respondent slapped the petitioner. According to the respondents, the provocation for thatactwasthefactthatthe
petitioner pointed his finger and said that he would himself address the 2nd respondent as "thamuse". It wasatthatstage
that the 2nd respondent slapped the petitioner whichshowsthatthe2ndrespondentlosthistemper andifasthe
respondents allege, the petitioner instantly retaliated with a slap that did notjustifytheuninhibitedassaultonthe
petitioner by the respondents. Objectively viewed, such conduct would be in excess of disciplinary power,andviolativeof
rights under Article 11.
I reject the allegation against the petitioner's father that he instigated thisapplicationoutofmaliceorvengeance,
particularly having regard to the former Principal's letter (P7) addressed to him. Iacceptthepetitioner'sversionand
hold that the 1st, 2nd and 3rd respondents have infringed the petitioner's rights under Article 11 by assaulting him.
This Court has hitherto been deciding cases of torture by police officers. However, the victimsofsuchtorturegenerally
belong to a different class. Here it is a student with an unblemished record. This Court must by granting appropriate relief
reassure the petitioner that the humiliation inflicted on him has been removed, and his dignity is restored.Thatwouldin
some way guarantee his future mental health, which is vital to his advancement in life.
In view of the seriousness of the dereliction and the issues involved, I am unable to accept theclaimoftherespondents
that the impugned acts involved disciplinary action not violative of fundamental rights. They are personally responsiblefor
the violation. But in granting relief against them, I shall have regardtothefactthattheassaultappearstohave
occurred on the spur of the moment, which fact cannot be considered to be a completemitigation,inthecircumstancesof
this case.

In all the circumstances, I consider it just and equitable to direct that the petitioner be paid compensationinasumof
Rs. 50,000% by the State. The 1st respondent is directed to pay Rs. 4000/- and 2nd respondent is directed to payRs.4000/-
and the 3rd respondent is directed to pay Rs. 2000/-, to the petitioner as costs.Intheresultthepetitionerwillbe
entitled to a total of Rs. 60,000/- "(Rupees Sixty Thousand) as compensation and costs.
The Registrar is directed to forward a copy of this judgment to the Secretary, Ministry of EducationandHigherEducation.
The Secretary is directed to ensure that the compensation and costs ordered herein areexpeditiouslypaid,tomaintaina
record of this judgment for departmental purposes and to take such other appropriate actionandtoreporttothisCourt
compliance with this judgment, on or before 31.08.1995.

G. P S. DE SILVA, C.J. - I agree.

RAMANATHAN, J. - I agree.
Application allowed.

Wold Wide Shipping available for all merchandise