GOVERNMENT OF MALAYSIA & ORS V.

JUMAT BIN MAHMUD &

ANOR
FEDERAL COURT [KUALA LUMPUR]
SUFFIAN LP, J, RAJA AZLAN SHAH, FJ, WAN SULEIMAN, FJ
[APPEAL ALLOWED.]
[Appeal allowed.]
JUDGMENT
Raja Azlan Shah FJ (delivering the judgment of the Court):
On 1 March 1977 we allowed this appeal and said that we would give our reasons at a
later date. We now proceed to do so.
This appeal raises an important point, and it is the second occasion on which such a
question relating to schools has come before our courts.
On the first occasion a party of students and teachers of Chung San School, Riam Road,
Miri, Sarawak, went on a picnic to Tanjong Lobang, and the deceased (a school girl aged
11 years) while playing a ball game with her friends in waist deep water, suddenly moved
into a depression and was drowned. Lee Hun Hoe J (as he then was) in dismissing the
case held as a second limb of his judgment that a schoolmaster's duty towards his pupil is
the same as that of a careful father, i.e., to take such care of his pupils as a careful father
would take of his children (see Chen Soon Lee V. Chong Voon Pin & Ors. [1966] 1 LNS
31.
The second occasion concerns this appeal. The facts are short and simple. The plaintiff
aged 11 years old was a Standard v. student of Sekolah Dato Kiana Maamor Jalan Range,
Seremban. He was injured in his right eye when another pupil, Azmi bin Manan
("Azmi"), celebrated his teacher's momentary inattention in class by pricking the
plaintiff's thigh with a pin which produced a shock causing the latter to turn round and his
right eye came in contact with the sharp end of the pencil which Azmi was holding. The
eye had to be removed subsequently. Azmi said it was an accident. The trial judge agreed
that he did not deliberately stab the plaintiff's eye with a pencil. I think the evidence
favours such an inference, otherwise the serious injury sustained by the plaintiff would
have been immediately noticed. It is in evidence that Azmi was a playful boy and had on
previous occasions poked the plaintiff and other boys with a pin or pencil but never in
their eyes, and that was done without the knowledge of the form teacher or Mrs. Kenny in
whose class the accident occurred. It also never occurred to any pupil to complain of
Azmi's abnormal propensity.
It is common ground that at the time of the accident Mrs. Kenny had given written work
to the class consisting of 40 pupils and it was during the period when she was doing her
work at the table that Azmi wandered about pricking a boy sitting next to the plaintiff and
also the plaintiff. It was argued before the trial judge that there was lack of supervision in
Mrs. Kenny's class thus resulting in the accident which caused the injury to the plaintiff.

That, it was contended, constituted breach of duty which the appellants owed the
plaintiff. If Mrs. Kenny had paid particular attention to Azmi's behaviour, or
misbehaviour, the accident would not have happened and therefore the plaintiff would not
have sustained the serious injury.
The learned trial judge gave judgement for the plaintiff. After addressing his mind to
paras. 297, 299 and 301 in Charlesworth on Negligence, 5th ed, he held as follows:
I am satisfied that there has not been sufficient or reasonable supervision of the
class by Mrs. Kenny at the material time and that the injury inflicted by Azmi bin
Manan on the infant plaintiff was caused by her negligence. It is established that
Azmi bin Manan was a playful and mischievous boy who used to go round and
disturb other boys especially those sitting at the back and had either Mrs. Kenny
or the form teacher bothered to find out she would at least have discovered that
Azmi bin Manan had been carrying a pencil with him when he wandered about in
the class-room and therefore ought to have warned him and the class as a whole
not to play with sharp pencils. As it was, such a warning was given only after the
incident. Mrs. Kenny was not attending to any particular pupil and if she had paid
proper attention to what was going on at the back of the class she certainly would
have noticed that Azmi bin Manan was missing from his desk and found out what
he was up to. Mrs. Kenny knew that Azmi bin Manan was playful and as she
ought to have known also of his propensity
to play with sharp pencils it was her duty to take precautions to prevent him from
causing any possible injury to other pupils in the class which she had not taken.
Before us it was agreed that this was not a case of breach of the obligation of the
school teacher to maintain that degree of discipline which would enable her
effectively to perform her function as a teacher, but one of lack of supervision on
her part in that she had failed to check or prevent a recalcitrant pupil from
wandering about in the classroom. Therefore the issue here is whether there was
evidence on which the court could conclude that the injury to the plaintiff was
causally related to any negligence on the part of the appellants. Counsel on behalf
of the appellants submitted that there was none. The trial judge held there was.
The question arises how much supervision is required of a school teacher in a
classroom in order to protect the pupils from molestation and other risks of injury
whatever their source.
It is accepted that by reason of the special relationship of teacher and pupil, a
school teacher owes a duty to the pupil to take reasonable care, for the safety of
the pupil. The duty of care on the part of the teacher to the plaintiff must
commensurate with his/her opportunity and ability to protect the pupil from
dangers that are known or that should be apprehended and the duty of care
required is that which a careful father with a very large family would take of his
own children (see Ricketts v. Erith Borough Council [1943] 2 ALL ER 629, 631.
It is not a duty of insurance against harm but only a duty to take reasonable care
for the safety of the pupil. The duty is aptly described by the learned Chief Justice

of Victoria in the judgment of the Full Court in Richards v. State of Victoria

[1969] VR 139, 141 when he said:
The duty of care owed by (the teacher) required only that he should take such
measures as in all the circumstances were reasonable to prevent physical injury to
(the pupil). This duty not being one to insure against injury, but to take reasonable
care to prevent it, required no more than the taking of reasonable steps to protect
the plaintiff against risks of injury which ex hypothesi (the teacher) should
resonably have foreseen."
In that case the plaintiff suffered brain damage as a result of a fist fight which
occurred at a High School in a classroom and in the presence of a teacher.
Evidence suggested that the particular teacher had some difficulties in
maintaining discipline in the past and that, on the day in question, the blow which
caused serious injuries to the plaintiff had been preceded by an argument, a
scuffle, and then a fight.
The law does not attach strict liability on a school teacher for the torts of his/ her
pupil, but only on proof that he/she had failed to exercise reasonable care in
controlling the pupil such as would have avoided the injury to the plaintiff. Since
that is a matter of evidence and inference, great care needs to be taken to see that
the breach of the duty of care must be causally related to the injury received. Thus
Lord Porter in Bourhill v. Young , [1943] AC 92 Denning LJ (as he then was) in
King v. Phillips, [1953] 1 QB 429 and the Privy Council in The Wagon Mound
[1961] AC 388 have expressed the view that the test of liability for shock is
foreseeability of injury by shock. In The Wagon Mound, supra, it was held that if
the damage which materialised was damage by fire, then for the defendant to be
liable he must have been able to anticipate damage by fire; that he could
anticipate damage by fouling the wharf's slipways was held not to be enough.
Since that case the principle that the damage sustained must not only be caused by
the wrongful act, but must be damage of a class or character reasonably
foreseeable as a possible result of that act is now firmly established. There must
be testimony from which it is a logical and reasonable inference, and not mere
speculation or conjecture, that the school teacher's act contributed to the injury.
And, of course, in deciding this matter, it is relevant to take into account common
experience in a big school classroom consisting of 40 pupils. Therefore for a
plaintiff to succeed in a case such as the present he must adduce direct or
circumstantial evidence which tends to show not only how the accident happened
but also that the injury was the result of some conduct on the part of the
defendant. Whether the evidence permits a logical and reasonable inference that
the defendant's conduct had some effect in producing the injury is a question of la
w which this court can decide. Bradford v. Robinson Rentals, Ltd [1967] 1 All ER
267 illustrates the working of these principles. In that case the defendant
employers carelessly exposed the plaintiff van driver to extreme cold in the course
of his duties. In consequence he suffered frost-bite. The court held that the
defendants exposed him to severe cold and fatigue likely to cause a common cold,

pneumonia or chilblains, and that frost-bite was of the same type and kind as the
harms foreseeable, so that the defendants were held liable.
In the present case, in considering whether or not the appellants were in breach of
their duty of care to the plaintiff it was necessary for the trial judge to consider
first whether the risks of injury to the plaintiff were reasonably foreseeable and
secondly, assuming it was, whether the appellants took reasonable steps to protect
the plaintiff against those risks. It is unfortunate that the trial judge did not clearly
indicate in his judgment that these two questions were separate and should be
dealt with by him separately.
In my judgment, only the first question needs to be considered. There is evidence
that the class never lacked supervision. The form teacher and Mrs. Kenny knew of
Azmi's propensity to leave the desk and wander about and when they noticed it
they immediately asked him to return to his desk which he did. But there was no
evidence that they knew that Azmi was a bully because no pupil had ever
complained to either of them. The trial judge held that Mrs. Kenny was negligent
in failing to give proper attention to the class all the time, and that if she had paid
proper attention to what was going on at the back of the class she certainly would
have noticed that Azmi was missing from his desk and found out what he was
doing and thus would have prevented the injury to the plaintiff. The question here
is whether there was evidence from which a logical and reasonable inference
could be drawn that as a result of the teacher's momentary inattention the injury to
the plaintiff was reasonably foreseeable. In other words, according to the trial
judge, there was evidence on which he could conclude that the injury to the
plaintiff was causally connected with her wrongful act of momentary inattention.
With due respect to the trial judge the evidence fails short of the requirement that
the injury sustained by the plaintiff was of a kind or type of class reasonably
foreseeable as a result of Mrs. Kenny's wrongful act, assuming she was wrongful.
The sole question in the present case is a question of causation. In my judgment it
cannot be said that the particular teacher carelessly exposed the plaintiff to injury
of the class or type that could reasonably have been foreseen. If the injury which
resulted was injury by the sharp end of a pencil, then for the appellants to be
liable they must have foreseen injury by the sharp end of a pencil. A pencil is not
a dangerous article. All pupils use pencil in classrooms. Indeed the trial judge
accepted appellants' contention that to say that there was a duty by them to
instruct each and every pupil on the proper use of a pencil was to stretch things to
a ridiculous extent. Again, assuming the injury to the plaintiff's eye was in fact
caused by a wrongful act of the teacher - for not being attentive in class all the
time - it cannot be said that it was reasonably foreseeable that the injury of this
class or character was a reasonably foreseeable result of such a wrongful act. In
my opinion, I cannot conclude as a matter of evidence and inference that more
probably than not constant vigilance in the classroom would have prevented the
injury which the plaintiff in fact received. There is no factual basis of the causal
connetion between the step the trial judge was entitled to think the teacher ought,

in the performance of her duty of care, to have taken, and the injury of which the
plaintiff sustained. Because notwithstanding the proper exercise of supervision a
recalcitrant pupil may act to the injury of a fellow pupil, it is prudent to see that
the necessary causal relationship is made out. The effect of constant vigilance in
class as a method of preventing a recalcitrant pupil from wandering about is often
such a debatable matter that the causal relation between the lack of supervision
and the injury caused to a fellow pupil may not be a matter of evidential
probability but be no more than a matter of mere speculation.
Appeal allowed.

SILVADURAI KUNNARY & ANOR V HEADMASTER, SRJK CINA,

CHUNG HWA & ORS
HIGH COURT MALAYA, MELAKA
DATUK SURIYADI HALIM OMAR J
[CIVIL APPEAL NO: 11-11 OF 1995]
22 JULY 1996
JUDGMENT
Suriyadi Halim Omar J:
The plaintiffs in this case were parents of Silvaprakash a/l Silvadurai, deceased, who was
a standard 2 student at Sekolah Rendah Jenis Kebangsaan Cina Chung Hwa. On 18
September 1989 at about 9.45a.m. during the school recess it was evidenced that the
deceased was playing with a see-saw at the rear of his classroom with another friend
(PW4). By some freak accident the child after alighting from the see-saw accidently
tumbled, after tripping, and fell head down on some rocks. Those rocks were deliberately
placed there for landscaping and aesthetic value so as to decorate and beautify the school
compound. As a consequence of that misfortune the deceased succumbed three days later
i.e. on 21 December 1989. The plaintiffs subsequently filed a suit against the defendants
viz the headmaster of the relevant school, the Ministry of Education and lastly the
Government of Malaysia alleging negligence on their part which resulted in the loss of
their child.
On 11 September 1995 after a protracted hearing the learned magistrate dismissed the suit
of the plaintiffs with costs. Being dissatisfied with the decision, the disillusioned
plaintiffs promptly filed the notice of appeal and on 15 July 1996 the said appeal was
heard by me. Zeroing in on the law without much ado as regards cases of this nature
Salleh Abas FJ in Mohamed Raihan bin Ibrahim & Anor. v. Government Of Malaysia &
Anor. [1981] 2 MLJ 27 had this to say:
It is settled law that a school teacher is under a duty to exercise supervision over
his pupils when they are in the school premises, either in the classroom or the
playground. The degree of supervision depends on the circumstances of each case,
such as the age of the pupils and what they are doing at the material time. If the
teacher knows that the pupils are engaged in doing acts which are likely to cause
injuries to one another, the teacher is under a duty to take steps to ensure the
safety of the acts.
It was common ground that on the material date the unfortunate child, taking
advantage of the school recess, together with his friend Saravanan a/l Sanasy
(PW4) were happily playing with the see-saw behind the classroom oblivious of
the impending tragedy. There was no serious attempt on the part of the defendants
to deny the subsequent episode whereby the deceased did fall on the rocks. PW4
at page 39 paragraph F said:

Kawasan itu dipenuhi dengan simen sekitar jongkang-jongkit dan terdapat rumput
di sekitar longkang. Saya nampak Siva jatuh. Terdapat batu-batu yang
dikumpulkan untuk tujuan pembinaan berhampiran pokok bunga dan Siva semasa
berjalan terlanggar batu-batu yang dikumpulkan. Batu-batu tersebut batu putih.
Saya ada nampak Siva jatuh.
Kepalanya terkena pada batu besar dan badannya terkena pada batu kecil.
Letchumy a/p Selliah (PW5) another classmate of the deceased at page 52 of the
Records of Appeal admitted that Saravanan did inform her of the unfortunate
incident which befell the deceased. She was informed as to where and how the
deceased fell. The relevancy of this piece of evidence was not to prove the truth of
that statement but merely to confirm that she was informed of the unfortunate
incident within minutes of its occurrence.
The challenge to the facts adduced by the plaintiffs came thenceforth namely as to
what actually happened in the classroom. PW4 graphically said the deceased
vomitted in the classroom but was denied by the defendants. For easy reference I
reproduce what was said by PW4 at page 39 paragraph C:
Selepas itu Siva muntah darah. Masa itu ada cikgu dalam bilik darjah. Saya tidak
tahu nama cikgu tapi cikgu perempuan. Ada seorang guru wanita suruh saya
basuh dan bersihkan muntah. Saya ada bersihkan muntah itu.
Saya nampak Siva terbaring atas meja.
Evidence to this effect was also confirmed by PW5 as reflected at page 51
paragraph C. On this contentious point the class teacher one Chan Chai Teng
(DW2) at page 82 merely said that when the deceased came to see her only the
knee and elbow were bruised whilst the rest of his body showed no sign of injury.
Having located the bruises she applied some iodine on them. At page 86 she
denied the dramatic events of the deceased vomitting. She also did not detect any
injuries on the deceased's face. This lady witness further evinced that in class
Sivaprakash was his normal self carrying out diligently her instructions. DW1
who was the headmaster of that relevant school did confirm at page 69 that DW2
did bring the deceased's predicament to his attention. He was informed that the
child had suffered some minor injuries and iodine had been dabbed on the bruises.
As regards the vomitting episode he was oblivious of it as no one kept him
informed. The headmaster also confirmed that he found it unnecessary to consult
a doctor as the relevant teacher had informed him that the injury was merely on
the leg (page 73 of the Records of Appeal).
At 1.00 p.m. the adopted mother (PW2) of the unfortunate child came to fetch
him and with that cut off point, the responsibility over the child shifted to the
mother. Having taken the child she immediately brought him to a clinic in the
estate but unfortunately was closed. She then turned for home but later left for a
clinic in Jasin. A doctor managed to see the deceased and prescribed him glucose
and thereafter prompting them to return home. On the way home, as the child was

observed to be weak, he was again taken to the clinic located in the estate by
PW2. There "a dresser" similarly prescribed the consumption of some glucose.
She then returned home but later by taxi transported the child to the hospital in
Tangkak for further observation. The next day the child was brought to the
General Hospital of Malacca but on 21 December 1989 succumbed to his
ailments. From the evidence adduced as at page 36 Dr. Mohd Nazir bin Abdul
Rahman (PW3) admitted that the deceased had collapsed at about 6.00 p.m. the
very same day the unfortunate incident happened. The learned Counsel for the
plaintiffs admitted this fact.
The plaintiffs made much out of the remarks of PW3 at page 36 which read:
Collapse pukul 6 petang. Semasa 8.30 malam di Hospital Tangkak dalam keadaan
tenat. Sekiranya dari masa dia collapse dia terus ke Hospital Besar Melaka
mungkin boleh diselamatkan. Sekiranya pada waktu dia muntah, discan diberi
rawatan mungkin dapat diselamatkan.
Ini terpulang juga kalau cukup facilities mungkin boleh diselamatkan.
On this unsubstantiated medical opinion of PW3 (there was nothing in the
evidence to confirm that he was a surgeon with the necessary expertise) that the
child could have been saved had he been brought to the hospital immediately after
he had collapsed these questions whizzed around my head:
1. as the child had collapsed in Tangkak's hospital and not in school should the
responsibility of taking the child to the General Hospital not lie with the adopted
mother or the responsible hospital?;
2. even before any surgery could be carried out surely a lot of preliminary studies
to diagnose the injury would have had to be undertaken, like scanning, x-ray,
etc.?;
3. would any doctor in his right mind operate on that child unless all the
alternatives had been discounted?;
4. even if a head surgery was necessary was there proof to confirm the fact that
the hospital had the necessary equipment?;
5. with all these delaying factors could the child be eventually saved?; and lastly
6. even if the child had been promptly operated on could he have been saved? (I
found no evidence adduced that could confirm with certainty).
Some of these points could not be disputed by the learned Counsel and conceded
that it was improbable that a doctor would immediately operate on that child
without being in possession of the relevant data and equipment. No one could
deny that this was a major medical exercise which entailed tremendous

preparation and suitable expertise. On a reflection even if I had agreed with the
earlier submission of the learned Counsel for the plaintiffs that had the child been
sent to the General Hospital in Melaka at the earliest moment I was not convinced
that the treatment by the hospital would be any different to that given by the
doctor and dresser in the respective clinics in Janin and Asahan. Similarly there
was no medical evidence to confirm that the unfortunate child could have been
saved had he been sent direct to hospital from school.
Apart from the medical doubts which were besetting me I found these additional
factors which negatived the plaintiffs' case:
l. the undisputed time lapse of five hours after leaving the school promises and
before he collapsed. He was collected from the premises of the school by his
adopted mother at 1.00p.m. whilst he collapsed at about 6.00p.m. During these
intervening hours what really happened was shrouded with mystery;
2. why did the mother not send the child to the General Hospital Melaka
immediately when by her own admission she admitted witnessing the vomitting
session before her. During this crucial period she was in charge of the welfare of
the child;
3. in stark distinction to the mother's evidence the class teacher denied seeing the
deceased vomitting at any period of time. The plaintiffs attempted their utmost to
establish that incident but was rejected by the learned magistrate after assessing
the evidence in toto. On this point may I be permitted to refer to the case of
Crofter Hand Woven Harris Tweed Co., Ltd., And Others v. Veitch And Another
[1942] 1 AER page 142 esp. 167 where Lord Porter said:
It is unnecessary to emphasise the principle, so often recognised by your
Lordships, that, in all cases where facts have to be reviewed, it is undesirable that
the findings of the Courts below should be disturbed by a Court of appeal unless it
appears that those findings are clearly wrong, and more especially that it is
undesirable to do so where the conclusions reached must to a large extent depend
upon the demeanour of the witnesses and the impression formed by a tribunal
which has seen them and can judge of their honesty and accuracy.
This relevant principle of law was followed by the Federal Court in China
Airlines Limited v. Maltran Air Corporation Sdn. Bhd. (formerly known as
Maltran Air Services Corporation Sdn. Bhd.) and Anor Appeal [1996] 2 AMR
2233. In this case the Federal Court interfered with the findings of fact of the
Court below based on the proposition that an appellate Court would more readily
interfere with the Judge's finding of fact which depended largely upon inferences
drawn from other facts. Having perused the findings of the learned magistrate
who had made specific findings over the evidence of all the witnesses and being
mindful of the remarks of Mohamed Dzaiddin FCJ I was hard pressed to dispute
her findings. The learned magistrate after many days of hearing had the full

benefit of listening and assessing the demeanour of the witnesses and finally
eventuate on them. She was in the right seat, place and time to assess any twitch,
hesitancy, unusual behaviour or even the changes in the level of their voices when
testifying. These factors reached a higher level of prominence and significance
especially with regard to the two children who despite being minors were
expected to recall an incident that ocurred five years earlier. On 16 September
1994 when PW4 and PW5 who were peers gave evidence they were 12 year olds
whilst at the date of the incident they were mere six year old children. How they
managed to remember the incident that happened many years ago that would have
caused expected agonising moments even for an adult due to memory lapses was
beyond the Court's understanding or comprehension. With all these factors
confronting me I was not convinced that the deceased vomitted in class.
Regardless of this stance even if I were to accept PW4 and PW5's evidence as
against that of DW2 the matter did not end there. I still had to proceed further and
consider the other eight questions or doubts which I mentioned earlier. In other
words there were other obstacles to consider.
Retracting slightly the Court had to consider the reaction of the teacher the
moment she was confronted with the bruises when exposed to her. Since I had
decided that there was no conclusive evidence to confirm that the teacher
witnessed the vomitting I then proceeded on that premise. Here was a teacher
DW2 faced with a child covered with some bruises but was behaving normally in
the accepted sense. She reacted promptly by applying some iodine on the affected
areas and subsequently brought the matter to the headmaster's attention. I then
asked myself the relevant question, had I been a mere teacher who had no medical
background, would I not have reacted the same way and in similar fashion as that
of DW2 in the circumstances of the case? My conclusion was resoundingly
positive. Not only had DW2 given immediate medical attention to the child but
had also adhered to the required guidelines when she reported the matter to the
headmaster. In other words DW2 had acted reasonably. I was further fortified by
the belief that if the doctor in Jasin and the dresser in Asahan could not manage to
detect the internal haemorrhage or the seriousness of the injury how was the Court
to judiciously expect the teacher to do any better?
There was a mild attempt by the learned Counsel to castigate the school for
placing the rocks close to the see-saw which had culminated in death. Much had I
sympathised with this argument I was not oblivious to the fact that this was not a
question of a child who fell from a defective see-saw or while playing the see-saw
was flung off the seat and landing on the jutting rocks. This was a case of one of
the two children having alighted from the see-saw while walking towards the
classroom, tripped, and unfortunately fell headlong on some rocks. If the school
were to be reprimanded for laying those rocks near the playground which had
caused the fatal injury then on the same argument if the child had fallen on some
other rocks much further away from the playground the school would still not
escape the rebuke. Some level of risk in life had to be taken as otherwise there
would be no end to matters of this nature. Let us not forget that the other child did

not trip even though they were together. To submit to the submission of the
plaintiffs might lead to unexpected suits where Courts would be held liable
whenever Counsels suffer injuries after accidently knocking their heads on some
beautifully carved bar table despite the good intentions of the Court to ensure the
comfort of the legal fraternity. The remarks of Lord Porter in Bolton And Others
v. Stone [1951] Vol. 1 page 1078 at 1081 para A are highly relevant where he said:
It is not enough that the event shouldbe such as can reasonably be foreseen. The
further result that injury is likely to follow must also be such as a reasonable man
would contemplate before he can be convicted of actionable negligence. Nor is
the remote possibility of injury occuring enough.
There must be sufficient probability to lead a reasonable man to anticipate it. The
existence of some risk is an ordinary incident of life, even when all due care has
been, as it must be, taken.
As regards whether sufficient warning had been posted to the users of the
playground, the headmaster (DWI) at page 77 clearly indicated that during school
assemblies children were informed of the dangers of the see-saw on the school
premises. Supervisors and teachers were also around to advise children of the
lurking dangers. On this point of supervision and warning permit me to reproduce
the dicta of Lee Hun Ho J (as he then was) in Chen Soon Lee v. Chong Voon Pin
& Ors. [1966] 2 MLJ 264 at page 267 which reads:
The teachers had done all they possibly could to ensure the safety of the students.
There is no evidence to show that any of the teachers had been at fault or
neglected their duty thus causing deceased to get drowned. The amount of
supervision required depends on the age of the students and what they were doing
at the time. The teachers had done more than was necessary. They kept the
students under continuous supervision.
There was nothing the teachers, or for that matter any other person, could do to
fight against an unfortunate occurrence of circumstances.
I was satisfied that sufficient action had been undertaken by the school to warn
the children of the dangers of playing with the see-saw. To exact unusually
stringent measures would be stretching the duty imposed on the school as this is
not a war zone.
Further on this point might I hasten to clarify that the see-saw was not the cause
of the fatal injury but a fall on some hard object which was totally unconnected
with the latter. It would thus be unreasonable, to say the least, if teachers were to
be responsible to ensure that students were not injured after being in contact with
some hard objects within the compound of the school in every circumstance. No
doubt it was foreseeable that children would fall and possibly be injured while
running around in exhuberence but the law requires more than that. As Lord
Denning in Brown v. National Coal Board [1962] 1 AER 81 esp. page 89
paragraph H said "... for the common law does not require a man to provide

security against a possible cause of injury, even though it is forseeable" (see also
supraBolton And Others v. Stone).
I further seek solace from the case of Zazlin Zahira Hj Kamarulzaman (an infant)
suing by his father and next friend, Hj Kamarulzaman b. Mohd Ali lwn. Louis
Marie Neube RT Ambrose a/l Ambrose & 2 Yg Ln[1994] 3 AMR 47 2518 at page
2519 under held 1 which reads:
1.(a) Seorang guru bertanggung jawab menjaga keselamatan murid-murid di
bawah jagaannya. Kewajipan berhati-hati ini mesti mengambil kira peluang dan
kebolehan guru itu untuk melindungi murid-murid dari bahaya yang diketahui,
dan tahap kewajipan ini adalah sama dengan kewajipan seorang bapa yang
mempunyai anak ramai. Ia bukan kewajipan menjamin tidak akan berlaku
kemalangan, tetapi sekadar kewajipan berhati-hati dengan munasabah untuk
menjaga keselamatan murid-murid.
Undang-undang tidak
meletakkan tanggung jawab yang keras (strict liability) ke atas guru.
Raja Azlan Shah FJ (as he then was) in Government Of Malaysia & Ors, v. Jumat
Bin Mahmud & Anor. [1977] 2 MLJ 103 at page 104 para D had this to say:
It is accepted that by reason of the special relationship of teacher and pupil, a
school teacher owes a duty to the pupil to take reasonable care, for the safety of
the pupil. The duty of care on the part of the teacher to the plaintiff must
commensurate with his/her opportunity and ability to protect the pupil from
dangers that are known or that should be apprehended and, the duty of care
required is that which a careful father with a very large family would take of his
own children (see Ricketts v. Erith Borough Council). It is not a duty of insurance
against harm but only a duty to take reasonable care for the safety of the pupil.
The duty is aptly described by the learned Chief Justice of Victoria in the
judgment of the Full Court in Richards v. State of Victoria when he said:
The duty of care owed by (the teacher) required only that he should take such
measures as in all the circumstances were reasonable to prevent physical injury to
(the pupil). This duty not being one to insure against injury, but to take reasonable
care to prevent it, required no more than the taking of reasonable steps to protect
the plaintiff against risks of injury which ex hypothesi (the teacher) should
reasonably have foreseen.
Having perused the notes of evidence I was not convinced that the plaintiffs had
proven every fact traversed in their cause of action in order to obtain judgment in
their favour (see Nasri v. Mesah [1970] 1 LNS 85; Yong Book Fong v.
Nallakaruppan Chettiar & Ors. [1972] 1 MLJ 13/17). On the other hand I was
satisfied that there was sufficient supervision over the school children with regard
to the playground. I was also satisfied that the teacher had acted reasonably after
being confronted with the condition of the child until the handing over to the

adopted mother. If the evidence of the doctor, subpoenaed by the plaintiffs, were
anything to go by that the child could have been saved after he had collapsed had
he been taken to hospital immediately surely that was the death knell of the
plaintiffs' case. The fact that the child's condition deteriorated whilst under the
supervision of the adopted mother/hospital surely exonerated the school. The
uncertainty of the availability of the equipment and the probable delay before any
surgery due to preliminary observations would be of no help either to the
plaintiffs' case. On the above grounds I dismissed the appeal with cost.

CHEN SOON LEE V. CHONG VOON PIN & ORS

HIGH COURT [MIRI]
OCJ LEE HUN HOE, J
[CIVIL SUIT NO. K/35/65]
13 JUNE 1966
JUDGMENT
Lee Hun Hoe J:
(deliver by Silke J): This is an action by an administrator for damages for negligence. The
first defendant was the principal of Chung San School, Riam Road, Miri. The second and
third defendants were teachers in the same school. Plaintiff alleged that because
defendants were negligent his daughter, Piek Leng met her death.
On 6 December 1964, a Sunday, a party of 53 students with seven teachers of the said
school went on a picnic to Tanjong Lobang. In the afternoon deceased and her friends
were playing a ball game in waist deep water when some of them apparently moved into
what appeared to be a depression. They found themselves in difficulty. The teachers and
some boys came to their assistance. Later it was found that deceased was missing. A
search was carried out and deceased was found in very shallow water. Artificial
respiration failed to revive her and she died that day.
Tanjong Lobang seems to be a well known spot in Miri and a popular picnic spot. On the
day in question some Malay students from another school were also picnicking there. In
fact for many years not only students from Chung
San School but other schools had their picnics there.
Chen Soon Lee (PW1), the deceased's father said that deceased did not tell him about
going to the picnic but had informed other members of the family. As a result of her death
he had lost her services and had spent considerable sum of money for the funeral.
Chai Tung Poh (PW2), the chairman of the Chung San School board of management said
that the teachers did not inform the board about taking the children to the picnic. He said
the board did not give the principal the right to take children to picnic. He said that if the
principal wanted to take the children out of school he had to get permission from the
board even on Sunday. At the outset I must say I am not impressed by this witness. He
appeared rather evasive in various matters when questioned and kept on referring to
certain written rules of the board. When he was asked to produce the rules he was unable
to do so as there were in fact no such rules.
Bong Ching Miaw (PW3), a supervisor of the said school, said that if the teachers wanted
to take children to a picnic or outing they had to inform the board in writing. But he
admitted during cross-examination that there was no such rule that teachers had to obtain
permission to take children to picnic on Sundays or holidays. This witness is more

impressive than PW2. However he made no mention to any written rules governing the
conduct of teachers.
Chong Yuen Fah (PW6) is now studying in Miri Secondary School. She was previously a
student in Chung San School. She is one of the students who went to that unfortunate
picnic. She was playing a ball game with deceased and other girls. They were standing in
a circle and they threw the ball from one to another. The second defendant taught them
how to play. The water was only waist deep. After teaching them he went on to teach
another group of students. Suddenly a big wash came and she fell down. They shouted for
help. She was pulled up by a boy and helped to the beach. There she saw the teacher and
other boys helping the other girls. Someone then made inquiry if all had come up. She
mentioned that deceased had not. A search was made and deceased was found.
During cross-examination she mentioned that in 1963 she was also in the sixth year in
Chung San School. She repeated the sixth year in 1964. She said in 1963 there was a
similar picnic for the sixth year students at the same spot. She also played in the water.
She went on to say that the picnic was arranged by the teachers in response to the request
of the students. Each student was given a copy of a circular giving various instructions
and information. She gave evidence well and her manner pleasing. I think her evidence
assists the defence rather than the plaintiff.
According to first defendant the students of the sixth year made a request through their
form teachers to have a picnic at Tanjong Lobang and he approved. He issued a circular
to every student. Of twelve teachers in the school six decided to join the students. The
students were divided into three groups. Two teachers were assigned to each group. When
the students assembled at the beach at Tanjong Lobang all the teachers were jointly
responsible for all the students with the first defendant in overall control. Before lunch
there was a roll call. After lunch they had a rest. Shortly after 1 p.m. they went to play in
the water. The teachers went in first followed by the students. Later over ten students
decided to go swimming in a fresh water swimming pool a short distance away. First
defendant instructed three teachers to accompany the students there as the water in the
pool was considerably deeper. There were thus four teachers (including first defendant)
left to look after those at Tanjong Lobang. The three teachers were most of the time
standing some distance apart in a line in the deeper part with the first defendants slightly
farther away in front of the teachers. They were thus in pyramid formation.
I accept as a fact that the students were playing a ball game in waist deep water. At the
beginning the teachers showed them how to play the game. Then they kept watch from
the positions I mentioned previously. The object would seem to be to prevent students
moving to the deeper part. According to first defendant the students moved gradually as
they were playing the ball to the left. The teachers following the move. Suddenly more
than ten students appeared to be struggling as if there was an area of depression in that
part. The teachers and first defendant went to the spot and got the students out of
difficulty. One of the students was first defendant's daughter. As a result of information
from Chong Yuen Fah (PW6) it was realised that deceased was missing. A search was

made in the area. Eventually Chen Chiok Ming, a teacher (DW4) found deceased in water
of over one foot deep. Artificial respiration failed to revive her and she died.
Second and third defendants corroborated the evidence of first defendant substantially.
Both had been to almost every picnic organised for the students in the past while at the
said school third defendant had the distinction of attending a picnic while a student in
said school where he latter became a teacher. After leaving Miri Krokop School where he
taught for some ten years Chen Chick Ming (DW4) joined Chung San School in 1963.
While at Miri Krokop School he had also on many occasions taken students to Tanjong
Lobang for picnic. In 1963 he also joined the Chung San School picnic at Tanjong
Lobang.
The defence witnesses mentioned that there were small waves but none remember any
particularly big wave. PW6 referred to a big wave when she fell down. It was possible
that the sudden drop of the seabed causing a depression gave her the impression of a big
wave coming over her. I accept the evidence of the defence witnesses where they conflict
with the evidence of the students.
Mr Yong referred to the famous words of Lord Atkin in Donoghue v. Stevenson [1932]
AC 580 as quoted by Lord Porter in Bolton v. Stone [1951] 1 All ER 1078 (at p. 1081):
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour."
Lord Porter then went on to say:
It is not enough that the event should be such as can reasonably be foreseen. The
further result that the injury is likely to follow must also be such as a reasonable
man would contemplate before he can be convicted of actionable negligence. Nor
is the remote possibility to lead a reasonable man to anticipate it. The existence of
some risk is an ordinary incident of life, even when all due care has been, as it
must be, taken."
Lord Denning in his judgment in Brown v. National Coal Board [1962] 1 All ER
81, 89 after considering that the Coal Mines Act, 1911 and Factories Act, 1937
imposed a higher duty than was imposed by the common law then stated:
for the common law does not require a man to provide security against a possible
cause of injury, even though it is foreseeable."
The defence adduced evidence to show that for years students from various
schools had been having their picnics at the same place and playing in the water
in the same area. There was no known depression in the vicinity. The defendants
adopted the same kind of supervision as had been done in the past.

In Wright v. Chesire County Council [1952] 1 All ER 789 where some ten boys
were engaged in the exercise of vaulting the "buck" and plaintiff was injured the
Court of Appeal allowing the appeal held that defendants were not liable in
damages to plaintiff and considered that the test of what was reasonable care in
ordinary everyday affairs might well be answered by experience arising from
practices adopted generally and followed successfully for many years; and the
evidence was that the defendants adopted a generally approved practice; taking
into account the nature of the activity in question they had not been shown to have
been negligent. In Rich & Anor. v. London County Council [1953] 2 All ER 376
where an infant plaintiff was injured by a piece of coke thrown at him by another
boy the Court of Appeal held that the duty owed by the defendants to the boys
was to take such care of them as a careful parent would exercise in like
circumstances and that their supervision of the boys was adequate and therefore
they were not liable to the plaintiff. And in Wray v. Essex County Council [1936]
3 All ER 97 the Court of Appeal held that an oilcan which caused injury to
plaintiff was not an inherently dangerous thing and the master was under no duty
to take special precautions. In all these cases it would appear that the incidents
occurred in premises under the control of defendants. In the present case the
incident occurred during school holiday and outside school premises at a picnic
arranged at the request of the students themselves. Therefore the question whether
defendants owed plaintiff any duty or not become of some importance.
Mr Yong submitted that there was adequate supervision and that the students were
only allowed to play in shallow water. The incident was unfortunate and he
further submitted that the depression was in the midst of shallow water and was
unforeseeable. Defendants had no knowledge of the depression.
Mr Nayar submitted that what happened in Bolton v. Stone [1951] 1 All ER 1078
was not the same as what happened in the present case. Similarly he submitted
that those cases cited by Mr. Yong had no bearing to the present case as they were
distinguishable. He then referred to Morris v. West Hartlepool Steam Navigation
Co. Ltd. [1956] 1 All ER 385 where appellant, a deck hand while working in a
ship at sea fell through an open hatch and was seriously injured. The evidence did
not show how the appellant happened to fall. The House of Lords by a majority
held the respondents liable and allowed the appeal. The unprotected hatch was
held to be an obvious risk and could readily have been avoided despite the fact
that evidence of general practice leave off the 'between deck hatch covers of holds
in grain ship after the holds had been prepared and not erect guard-rails round the
hatches while grain ships in ballast were at sea and that accidents by falling in
such holds were rare. I do not think anyone disputes Mr. Nayar's contention that
general practice over a long period necessarily answers a charge of negligence.
There the danger was foreseeable and a reasonable man weighing the matters
would have clearly considered taking precaution. That is a case of master and
servant and different consideration applies. It is important to bear in mind that
each case must be decided according to its particular facts.

First, I will consider whether the teachers owed any duty to the deceased or her
father to provide supervision for the students. Secondly, assuming that they owed
such a duty whether in the circumstances they were negligent.
The picnic was organised at the request of the students themselves. It was on a
Sunday and therefore a holiday. The teachers could refuse to accede to the
students' request to go to Tanjong Lobang for a picnic. But then the students could
have organised the picnic and gone there themselves. But I think the students
seemed to be intelligent enough to wish to have the teachers with them. These
students though young, should not be treated as Lord Goddard said in Camkin v.
Bishop [1941] 2 All ER 713 "as if they were infants at creches and no master is
obliged to arrange for constant and perpetual watching out of school hours." The
facts in that case were briefly that during their halfholiday, a number of boys from
a school were allowed by the headmaster to help a farmer in a field. As a result of
a horseplay among some of the boys, the infant plaintiff was struck on the
forehead by a clod of earth, and one of his eyes was so badly injured that it had to
be removed. In an action for damages for negligence against the headmaster it
was contended that be was under a duty to arrange for the supervision of the boys
while they were doing the work. It was held that in the circumstances of the case,
the headmaster owed no duty to the infant plaintiff or his father to provide for
supervision of the boys. Applying that principle to this case I would say that the
principal and teachers owed no duty to the deceased or her father to provide
supervision. The fact that there was a disastrous and unfortunate result is no
reason for throwing the responsibility on the three defendants. There is no
evidence to indicate that anyone was aware that the place the students were
playing was dangerous.
Now assuming that I am wrong and that the teachers owed such a duty the
question would be whether they were negligent on the facts of this case. It has
been submitted and I accept it as a correct proposition of law that a schoolmaster's
duty towards his pupils is the same as that of a "careful father". In Williams v.
Eady [1893] ten TLR41 Lord Esher MR indicated quite clearly that a master was
bound to take such care of his pupils as a careful father would take of his children.
I will therefore apply this standard to the present case. It Is a well known principle
that a parent is not liable for the negligence of his child unless the child is his
servant or agent. He is however liable for his own negligence and is under a duty
to exercise such control over his children as a prudent parent would exercise.
However when you look at it the defendants had done all they could to ensure that
the students obeyed their instructions. There is no evidence that the students did
not follow such instructions. The picnic was organised at the request of the
students themselves to their form teachers who obtained permission from the
principal. It was therefore for the students' benefit that the picnic was arranged.
The principal prepared a circular and each student was given a copy to take home.
The students were all in the sixth year. They were divided into three groups. Two
teachers were assigned to look after each group. The principal himself was in

overall control of the groups. When they reached the beach the teachers had
charge of all students with the principal again in overall control. Three teachers
were spread out in the deeper part of the water with the principal farther away in
front. The object was to prevent students from venturing to the deeper part.
Students played game under supervision. The girls were playing a game one
would expect normal and healthy girl students to indulge in. There is no evidence
that they had gone to play in the deeper part of the water. In fact PW6 had said
that the teachers had advised them not to go to the deeper part. These students
were old enough to understand such warning. There were at the time only four
teachers (including the principal). They had taken steps to supervise the students
and to keep watch over them while they were playing in the water. There is no
evidence that there was known danger or trap on that stretch of the beach where
the children were playing. The depression was unsuspected.
The teachers had done all they possibly could to ensure the safety of the students.
There is no evidence to show that any of the teachers had been at fault or
neglected their duty thus causing decease to get drowned. The amount of
supervision required depends on the age of the students and what they were doing
at the time. The teachers had done more than was necessary. They kept the
students under continuous supervision. There was nothing the teachers, or for that
matter any other person, could do to fight against an unfortunate occurrence of
circumstances. In my view looking at the facts I am inclined to agree with Mr.
Yong that there was adequate supervision. It is difficult to see how such a case
could be brought against the three defendant. Viscount Cave LC in his judgment
in Mersey Docks and Harbour Board v. Procter [1923] AC 253 at p. 262 referred
to Wakelin London South Western Ry Co 12 App Cas 41 44 which mentioned that
this House affirming the Court of Appeal, held that, assuming (but without
deciding) that there was negligence on the part of the company, there was no
evidence to connect the negligence with the accident, and accordingly that there
was no evidence to go to the Jury."
Halsbury LC stated the principle as follows:It is incumbent upon the plaintiff in this case to establish by proof that her
husband's death has been caused by some negligence of the defendants, some
negligence of the defendants, some negligent act, or some negligent omission, to
which the injury complained of in this case, the death of the husband is
attributable. That is the fact to be proved. If that fact is not proved the plaintiff
fails, and if in the absence of direct proof the circumstances which are established
are equally consistent with the allegation of the plaintiff as with the denial of the
defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound
to establish the affirmative of the proposition: 'Ei qui affirmat non ei qui negat
incumbit probatio.'"

I think these expressions apply with equal force in the present case. I sympathise
with plaintiff but he has undertaken to prove that defendants are responsible for
what happened. I regret that having regard to the evidence I am bound to hold that
the plaintiff has not established on the balance of probabilities that defendants
were in anyway negligent. This being so, I dismiss his claim with costs to be
taxed.
Claim dismissed.

CasesLegislationArticle

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[1981] 1 LNS 186

PENGARAH PELAJARAN, WILAYAH PERSEKUTUAN & ORS V.

LOOT TING YEE
FEDERAL COURT [KUALA LUMPUR]
CIVIL APPEAL NO 177 OF 1980
LEE HUN HOE, CJ (BORNEO), WAN SULEIMAN, J & SALLEH ABAS, FJJ
7 JULY 1981, 5 SEPTEMBER 1981
Salleh Abas FJ
(delivering the judgment of the Court): This is an appeal from the decision of Mr. Justice
Vohrah, refusing the appellant's application to strike out the respondent's claim.
The respondent was a school teacher attached to Sekolah Rendah Jenis Kebangsaan (C)
Naam Kheung, Batu 3 Jalan Cheras, Kuala Lumpur (referred to in the judgment as "NK
School"). He joined the teaching service on January 1, 1953 first as a member of Unified
Teaching Service. When this service was abolished upon the implementation of Abdul
Aziz Salary Report (1971), on his option the respondent was accepted into the
Government Teaching Service with effect from April 1, 1972 and was placed in the
service as a Category B1 teacher. He thus, in the words of Encik Abdul Halim Shah bin
Abdul Murad, an officer in the Ministry of Education which words are contained in his
affidavit sworn on May 3, 1980, and agreed to by the respondent in his affidavit sworn on
June 28, 1980, becomes "directable, deployable and transferable to perform teaching,
administrative and other duties that may be reasonably required of him and also becomes
subject to all Service Circulars, General Orders, Treasury Instructions and other rules and
regulations applicable to members of the Public Service". The respondent has been
teaching in NK School since January 11, 1965 and has been a category B1 teacher ever
since he joined the Government Teaching service on April 1, 1972.
By letters dated December 31, 1979, July 9 and 12, 1980 Pengarah Pelajaran Wilayah
Persekutuan (Appellant No. 1) informed the respondent that he was transferred to Sekolah
Rendah Jenis Kebangsaan (C) Chung Hwa, Jerteh, Trengganu to whose Headmaster he
was required to report for duty on February 1, 1980. The respondent protested against this
transfer alleging that it was unjust and improper and also requested Appellant No. (1) to
cancel it. As the request was not acceded to the respondent appealed to the Minister of
Education, (Appellant No. 2) whose decision was finally conveyed to the respondent in a
letter dated February 5, 1980 to the effect that the transfer had to remain and that the

respondent had to abide by it.

Aggrieved by this decision, on February 14, 1980 the respondent sued Appellant No. (1)
and Appellant No. (2) claiming a declaration that the impugned transfer was inoperative
and void and that he is still "legally entitled" to continue teaching at NK School. He also
asked for some other ancillary remedies. After further and better particulars were supplied
to the appellants at the request of Mr. Lim Beng Choon Senior Federal Counsel acting on
their behalf regarding the allegations made in the statement of claim, the appellants
applied by summon-in-chambers to the court to have the statement of claim struck out on
the ground that the issues raised in the statement of claim are non-justiciable and that they
are otherwise scandalous, frivolous, vexatious and abuse of court's process. After hearing
arguments in the open court, Mr. Justice L.C. Vohrah dismissed the appellants' application
with costs. The reasons given by the learned judge as far as we can gather from his
judgment is that the power of transferring an officer must be exercised by the transferring
authority honestly, bona fide and reasonably and that as the statement of claim contains
allegations of bad faith the respondent's suit must proceed to trial. He thus dismissed the
appellants' application to strike out the statement of claim.
The respondent was transferred on the instruction of the Minister of Education under
paragraph 16 of the Perintah-Perintah Am which is as follows:
"Seseorang pegawai boleh diarahkan berkhidmat dimana-mana sahaja oleh Kerajaan
melainkan ada syarat-syarat khas yang menetapkan sebaliknya."
(An officer may be directed to service anywhere by the Government unless there are terms
and conditions providing otherwise.)
It is the respondent's case that the transfer of a government employee is reviewable by the
court if it could be shown that the transfer was actuated by bad faith. In support of this
proposition learned counsel for the respondent cited two Indian cases. Partap Singh v
State of Punjab AIR 1964 SC 72 and Malinamani v Commissioner Habli Dharwar
Municipal Corporation [1973] Kar LJ 121. With respect we find ourselves unable to
accept the submission.
The law relating to civil service in Malaysia is based upon a twin principle that every
employee holds office during pleasure of the Yang di-Pertuan Agong and that the
qualifications for appointment and conditions of service are regulated by him, in addition
and subject to any law on the same subject matters having been made by Parliament. So
far Parliament has not yet made any law on the subject of civil service except the Pensions
Ordinance and Parliamentary Service Act (No. 12 of 1963). These two Acts are irrelevant
in the present appeal. The Constitution prescribes no limit on the scope and extent of the
pleasure of the Yang di-Pertuan Agong but when power to dismiss an employee or to
reduce him in rank is to be exercised, the Constitution prescribes procedural restrictions as
to the manner and by whom this power is exercisable. Thus the pleasure of the Yang diPertuan Agong not only applies to tenure of office of an employee but also extends to a

multitude of subject matters such as appointments, promotions, transfers, salaries, leaves

and other benefits. These are all being regulated by civil service rules known as PerintahPerintah Am made by the Yang di-Pertuan Agong under Clause 2 and Article 132 and also
various circulars, instructions issued from time to time by appropriate authorities in the
Government.
The approach taken by the courts in India seems to be that the principle of holding office
during pleasure is limited to cases of dismissal and termination of services only and that it
has no relation or connection with other cases. In State of Bihar v Abdul Majid AIR 1954
SC 245, 249 the Supreme Court of India held that the principle had no application to a
case where a civil servant was suing for arrears of salary. Mahajan C.J. declared that the
principle simply concerned itself with the tenure of office of the civil servant and that it
had nothing to do with his claim for arrears of salary. In Pratap Singh v State of Punjab
AIR 1964 SC 72 the court held that the principle of "durante bene placito" did not apply
to a case where a civil servant was challenging a Government order revoking an earlier
order permitting him to retire and granting him leave prior to retirement. Ayyangar J.
delivering the majority opinion of the court described the contrary submission of the
Attorney-General who appeared for the State Government as "patently unwarranted
besides being contrary to" the court's decision of State of Bihar v Abdul Majid AIR 1954
SC 245, 249. The result of these two cases is therefore that the concept of "durante bene
placito" is given a very restricted meaning; it being limited to cases of dismissal and
termination of service only. With respect we are unable to accept these decisions as being
the law in Malaysia. In our view as a civil servant holds office during pleasure, not only
the length of his service is subject to pleasure but the place and time of his service is also
similarly subject to pleasure. The only difference is that as regards dismissal and reduction
in rank procedural safeguards contained in Article 135 must be observed, whereas in cases
of transfer and other matters no such safeguards need be followed. Thus whether a civil
servant should be transferred, and if so where and when the transfer is to be made are
matters for the government to decide. No useful purpose could thus be served in this case
by holding a full trial of the respondent's allegations of mala fide and unreasonableness.
Counsel for the respondent relied heavily on Malinamani v Commissioner Hubli Dharwar
Municipal Corporation [1973] Kar LJ 121. It is his submission that since the transfer in
Malinamani's case could be challenged on the basis of bad faith the respondent therefore
has an actionable right to challenge the transfer order. With respect we cannot accept this
submission. In Malinamani's case the employee concerned was appointed under Bombay
Provincial Corporation Act (55 of 1949) and therefore not subject to tenure during
pleasure of the President at all. This is different from our case. Further the transfer dealt
with in that case was not a transfer as we understand it in the context of civil service in
Malaysia. It was a transfer, if not a transformation, of an employee from being a library
attendant to being a fireman. Whereas in our case the respondent continues to be a teacher
in the same category as he was before the transfer; the transfer being only as to the place
of work and not as to the nature of service. We therefore rule that Malinamani's case is
completely useless for our purpose.

We now turn to the respondent's statement of claim. The allegations which the respondent
hopes to find a cause of action are contained in paragraphs 13, 14, 15, 16, 17 and 18.
These six paragraphs are in fact repetitive of one another and their combined effect is that
the transfer was void because:
(1) it was not in the public interest (paragraph 13);
(2) it was not ordered honestly and reasonably (paragraph 14);
(3) it was a victimisation of him for holding views on Chinese culture and education
which views subjected him to the open attacks by MCA (paragraph 15);
(4) it was punishment (paragraph 16);
(5) it was a reduction in rank (paragraph 17); and
(6) the transferring authority had no absolute right to transfer him (paragraph 18).
As to the allegation that the transfer was not in the public interest it suffices us to say that
as employment in the civil service is during pleasure of the Yang di-Pertuan Agong, as
long as he is in the service, it is for the Government to decide whether his transfer is in the
public interest or not, having regard to the fact that the Government has a larger public
duty to perform. It is not for us to interfere with the discretion of the Government in this
matter. To do so would only amount to an unjustifiable usurption of Government's
discretion by us. There is absolutely no legal basis for us to interfere with the
Government's discretion.
Similarly the reasonableness of the respondent's transfer is not for us to decide. As regards
punishment there is nothing in the Constitution which entitles an officer to bring his
grievances before the court whenever he is punished unless and until the punishment
complained of amounts to a dismissal or reduction in rank. No matter how aggrieved an
officer is by the "punishment" in our view he has no cause of action. As regards the
allegation that the transferring authority had no absolute right to transfer him, the answer
is that the respondent holds office during pleasure of the Yang di-Pertuan Agong. If an
officer can be dismissed at pleasure (subject only to observance of Article 135) similarly
he can be asked to serve anywhere at pleasure. No officer can therefore claim to have
legal right of non-transferability because by joining the Government service he has
become liable to transfer.
Regarding the allegation of reduction in rank the respondent swore an affidavit saying that
since 1973 he became a supervisor of the school and that in that capacity in the absence of
the Headmaster and the Deputy Headmaster his duties included administration and overall
charge of teachers of the school. His transfer to Chung Hwa School in Jerteh, he claims,
albeit retaining Category B1 teacher deprives him of the appointment of supervisor of the
school. In our view the work of a supervisor does not involve any extra remuneration

payable to him although he is required to do some administrative work in the absence of

the administrative head and deputy head. Although he and many others may feel that
taking him away from the supervisory capacity is a demotion, in our view this act does not
seem to be reduction in rank within the meaning of Article 135 of the Constitution. His
transfer to Chung Hwa School does not reduce his rank below that of a category B1
teacher which he continues to retain, nor would he receive less remuneration. According
to affidavit of Encik Abdul Halim Shah which was agreed to by the respondent, he was,
on joining the Government service "accordingly directable, deployable and transferable to
perform teaching, administrative and other duties". We therefore find nothing in this
allegation which merits holding a trial.
The only paragraph which alleges malice is paragraph 15, in support of which the
respondent swore two affidavits one on April 3, 1980 and another on June 30, 1980. He
also supplied further particulars on April 17, 1980 at the request of the appellant. These
allegations are as follows. The respondent is not a member of any political party, but he
was interested in, and has championed the cause for, the preservation of Chinese culture
and education in the country. He has been the Vice-President of the United Chinese
School Teachers' Association since 1966 and Vice-Secretary of Merdeka University Sdn.
Berhad since 1974 a company dedicated to the cause of establishing a University by
that name to cater for students of Chinese Schools who are unable to gain entry into the
existing Universities and colleges. He is active in other organisations also. His activities
and views on Chinese education and in particular on Merdeka University brought him into
open confrontation with the Malayan Chinese Association (MCA), a member of the ruling
parties. He related an incident wherein on November 25, 1978 one Tan Chow Bock, an
MCA Perak Youth leader requested Y.B. Datuk Chan Siang San, Deputy Minister of
Education to teach the respondent a lesson by transferring him to Ulu Kelantan in order to
prevent the respondent from quarrelling with the MCA on Chinese education. He thus
alleged that his transfer was prompted by malice and that because of his views on Chinese
culture and education he was therefore victimised.
The substance of these allegations is simply that he was transferred because of personal
animosity between him and MCA. But there is no allegation that the transfer of the
respondent was at the instance of the Deputy Minister of Education. By relating the
incident that the Deputy Minister was publicly asked to transfer him to Ulu Kelantan, the
respondent was in fact suspecting that the Deputy Minister had a hand in the making of
the transfer order. There is absolutely no basis for this suspicion or surmise because the
transfer was not made on the order of the Deputy Minister but that of the Minister of
Education himself. The real question in this case is whether or not the Minister had
genuinely considered the merits of the transfer. With respect we fail to see anything in this
story which goes to show that he did not do so and that he was so low and so irresponsible
as to take into account the related incident which had taken place two years previously.
In Franklin v The Minister of Town and Country Planning [1948] AC 87, 104 the House
of Lords refused to take into consideration a speech made by the Minister at a political
rally for the purpose of determining the validity of an order made by him even though the

speech appeared to have forejudged the making of the order. It was held that the real
question was whether the Minister had genuinely considered the report and objections
before making the order. Thus in our view not only the story of this particular MCA
Meeting was irrelevant but also the Minister who instructed the transfer was not the one
who attended the meeting. This story is completely irrelevant.
Perhaps it is natural for the respondent who is so steeped in activities relating to Chinese
culture and education to feel that he is victimised because the transfer will result in the
curtailment of these activities, if not, a complete cessation. Again even on the assumption
that the allegations were true we are not prepared to hold that there was any bad faith in
such transfer and therefore there is no need for the case to go on trial. The Government
has formulated a certain policy on education and has been returned to power with a
mandate, inter alia, to carry through that policy into effect. The respondent as its servant
is not only opposing that policy but also carrying out activities hostile to the Government's
interest. In the circumstances we cannot see how, in implementing the policy whereby the
respondent had to be transferred from where he was to some other school, the transfer is
said to be ordered in bad faith. Was it not the respondent who placed himself in the
position which led the Government to transfer him? Here even assuming that the
respondent's office is not during pleasure we cannot see how the Government as an
employer is so powerless that it cannot take any action on its employee, when the latter
has carried out activities detrimental to its interest. Surely an employer expects, and is
entitled to, obedience by his servant?
We are fortified in this approach by a similar line taken by their Lordships of the Privy
Council in Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238. In this
case the Government took steps to deal with constitutional crisis in Sarawak involving the
passing of an Act of Parliament to amend the Constitution of Sarawak and the removal of
the incumbent Chief Minister. Their Lordships refused to hold that the passing of the Act
and the removal of the Chief Minister might cause him naturally to feel that the Act was
directed against him personally. Lord MacDermott, delivering the judgment of the Privy
Council said:
"It is not for their Lordship's to criticise or comment upon the wisdom or expediency of
the steps taken by the Government of Malaysia in dealing with the constitutional situation
which had occurred in Sarawak, or to enquire whether this situation could itself have been
avoided by a different approach. But, taking the position as it was after Harley, J. had
delivered judgment in September 1966, they can find, in the material presented, no ground
for holding that the respondent government was acting erroneously or in any way mala
fide on taking the view that there was a constitutional crisis in Sarawak. "
Likewise in this appeal we are not prepared to hold the transfer of the respondent to be
prompted by inproper motive or bad faith even if it is true that the transfer was due to his
views on Chinese education, which are in conflict with the known policy and views of the
Government. A person who is playing with fire cannot complain if he gets burnt in the
process. Similarly a man riding on tiger's back will have himself only to blame if in the

act of riding he is eaten by the tiger if he survives at all. He should know the limits of his
capability. Thus a servant should know his legal limits when he openly engages himself in
activities which his employer considers to be inimical to his interest.
Having examined the allegations in the statement of claim we are of the view that even on
the assumption that the allegations were true, the respondent has no cause of action. By
loading into this statement of claim such allegations as victimisation, reduction in rank,
punishment, public interest and abuse of power he was hoping that anyone of these will
succeed to show a reasonable cause of action. But little did he realise that the suit was
based on a misconception of the law. In the circumstances we hold that the statement of
claim not only does not show any reasonable cause of action but is also scandalous,
frivolous, vexatious and an abuse of process of court.
The appeal is allowed with costs and the appellant's summons-in-chambers filed on May
31, 1980 is allowed which means the statement of claim is struck out. Deposit is refunded
to the appellants.

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[1983] CLJ 248 (Rep) [1983] 2 CLJ 74

LOOT TING YEE V. TAN SRI SHEIKH HUSSEIN SHEIKH MOHAMED

& ORS.
FEDERAL COURT, KUALA LUMPUR
SUFFIAN LP, SALLEH ABAS FJ, ABDUL HAMID OMAR FJ
[CIVIL APPEAL NO. 12 OF 1981]
19 FEBRUARY 1982
JUDGMENT
Suffian LP:
This is an application by the appellant for conditional leave to appeal to His Majesty from
a judgment of this Court.
The appellant is a teacher at Sekolah Rendah Jenis Kebangsaan (China) Naam Kheung,
Batu 3, Jalan Cheras, Kuala Lumpur. He was ordered to go on transfer to Sekolah
Rendah Jenis Kebangsaan (China) Chung Hwa, Jerteh, Trengganu. He refused to comply
with the transfer order. He appealed to the education authority to cancel the order, but was
not successful. On 11 April 1980, the Secretary General of the Ministry of Education
directed him to present himself to the Headmaster of the school in Jerteh as early as
possible. He again refused.
On 14 April 1980, he filed a suit in the High Court, Kuala Lumpur, asking for a number of
declarations, the main one being a declaration that the purported transfer was void and of
no effect. While the suit was still pending the Education Service Commission on 9 June
1980, sent him a notice to show cause why he should not be dismissed from the teaching
service. The notice also carried several charges against him relating to acts allegedly in
violation of several provisions of the Public Officer (Behaviour and Discipline)
Regulations, also known as General Orders Cap. D. The several charges against the

appellant are concerned primarily with his not complying with the transfer order and with
his subsequent conduct.
On 29 September 1980, the appellant applied to the High Court under O. 52 r. 3 of the
Rules of the High Court 1980 to commit the eight members of the Education Service
Commission, the respondents, for alleged contempt of Court. The grounds for the
application for committal can be summarized briefly as follows:
(1) knowing that there was a pending suit in the High Court for declarations on the
purported order of transfer, the respondents had by sending the Notice to show cause
prejudged the issues the subject matter of the pending suit;
(2) the action of the respondents clearly interfered with the true course of justice and the
lawful process of Court;
(3) the actions of the respondents were clearly calculated to hinder the Court in the
administration of justice, adversely affecting the authority and dignity of the Court; and
(4) the action of the respondents clearly prejudiced the merits of the applicant's case
pending before the Court.
Wan Suleiman, FJ who sat in the High Court to hear the application held:
that on the score of the restricted scope of publication alone, there cannot be contempt for
by no stretch of the imagination can such publication pose any sort of risk of interference
with the proper administration of justice. What was called by applicant's Counsel
publication was in fact intimation to the applicant of charges of a departmental character
proposed to be brought against him.
And in another passage of his judgment he said:
Examined in the light of Lord Diplock's definition of contempt of Court cited earlier [i.e.
Attorney-General v. Times NewspaperLtd. [1973] 3 All ER 54] the conduct of the
Education Service Commission in relation to the civil suit (which) applicant has filed
neither tends to undermine the system for the administration of justice by Courts of law
and the maintenance of public confidence in it nor does it inhibit citizens from availing
themselves of that system for the settlement of their disputes.
On appeal the Federal Court agreed with the learned trial Judge.
The appellant being dissatisfied is desirous of appealing further to His Majesty - hence
this application for leave to so appeal.
Mr. Lim Beng Choon for the respondents opposed the application on the ground that the
decision appealed from was a decision as to the effect of the Constitution and therefore

barred by s. 74 (3)(a) of the Courts of Judicature Act. Alternatively he argued that the
decision was one relating to a criminal matter and therefore, since the repeal by Act A328
in 1976 of para. (c) of sub-section (2) of s. 74, no longer appealable to His Majesty.
Finally he argued that the case was not from its nature a fit one for appeal; but he did not
press this last ground.
Mr. Karpal Singh on behalf of the appellant argued that the decision appealed from did not
involve interpreting the Constitution. In answer to the alternative argument he said that
contempt was a civil matter, for the application to commit the respondents was made
under O. 52 of the Rules of the High Court and if the respondents were committed they
would be sent to a civil prison and the expenses of their detention would have to be borne
by the appellant, not the Government. Lastly he said that this case is from its nature a fit
one for appeal within para. (iii) of sub-section (1) of s. 74 and therefore appealable.
Thus the issue here is - whether or not the appellant may appeal beyond the Federal Court.
Clearly if the matter is criminal, he may not.
With respect we are of the opinion that the learned trial Judge's decision was in a criminal
matter and therefore there is no right of appeal beyond the Federal Court.
In O'Shea v. O'SheaandParnell ex parte Tuohy [1890] 1 PD 56, the Court of Appeal held
that an application by a party to a civil action for an attachment against a person not a
party to the action, for contempt of Court in the publication of comments calculated to
prejudice the fair trial of the action, is a "criminal cause or matter" within the meaning of
s. 74 of the Judicature Act, 1973; and no appeal from an order made upon such application
could be brought to the Court of Appeal. There was a divorce suit and application was
made by notice of motion for a writ of attachment for contempt of Court against Tuohy,
for printing and publishing an article calculated to prejudice the petitioner in the divorce
suit in the eyes of the public and to discredit him in the assertion of his right in the Court.
Cotton LJ said at p. 63:
It is conceded that [what Tuohy did] was a wrongful act, otherwise there could be no fine
or imprisonment. And when you concede that it is a wrongful act, you find, although [the
motion] is headed in the divorce action, it is not a proceeding in the action ... , but an
application to punish an attempt to induce the jury not to try the case properly, which is as
much a criminal act as an attack upon the Judge himself.
In Ambard v. AG. for Trinidad and Tobago [1936] AC 322 Lord Atkin delivering the
judgment of the Privy Council said at p. 329:
... interferences [i.e. with the administration of justice - whether they be interferences in
particular civil or criminal cases] when they amount to contempt of Court, are
quasicriminal acts, and orders punishing them should, generally speaking, be treated as

orders in criminal cases ...

The Singapore High Court has also held that contempt of Court is a criminal matter. In Re
Abdul Aziz's Application [1961] 1 LNS 99 Rose CJ said at p. 65:
It would seem to be clear that ... contempt of Court ... has long been regarded as a
criminal matter. The observations of Lindley LJ and Lopes LJ in O'Shea v. O'Sheaand
Parnell, at pp. 64 and 65 are in point. As also is an observation of Wills J in the King v.
Parke [1903] 2 KB 441 at p. 441 where he says that procedure in matters pending on the
civil side `would afford no assistance in the present discussion'. By this he must clearly be
taken to have meant that contempt of Court falls on the criminal side of the jurisdiction.
In PP v. Lee Ah Keh & Ors. [1968] 1 MLJ 22 Ali J, as he then was, recognized that
contempt of Court is a criminal offence, certainly if committed in the face of the Court.
He cited with approval at p. 23 the head-note to In re Pollard [1868] 5 Moore NS. 111
which reads in part as follows:
A contempt of Court being a criminal offence ...
This is not to say however that all contempt are criminal, for, as stated by Halsbury's
Laws of England, 4th Edn., para. 2:
Contempt of Court may be classified either as (1) criminal contempt, consisting of words
of acts obstructing, or tending to obstruct or interfere with, the administration of justice or
(2) contempt in procedure, otherwise known as civil contempt, consisting of disobedience
to the judgments, orders or other process of the Court, and involving a private injury.
The alleged contempt here is clearly of the first and not of the second kind.
The fact that the application here was made under O. 52 of the Rules of the High Court
1980, and that if committed the respondents would be kept in a Civil Prison at the expense
not of Government but of the applicant does not in our judgment make any difference.
As there is no appeal beyond the Court, this application is dismissed with costs.

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[1969] 1 LNS 102

MAHADEVAN V. ANANDARAJAN & ORS

HIGH COURT [SEREMBAN]
ABDUL HAMID, J
[CIVIL SUIT NO. 101 OF 1968]
5 SEPTEMBER 1969
JUDGMENT
Abdul Hamid J:
The plaintiff's claim is:
(a) for a declaration that the order of expulsion of the plaintiff as a pupil from the
King George v. School, Serembam, made by the first defendant with effect from 4
May 1968, and the decision of the Board of Governors made on 1 June 1968, is
null and void and of no effect;
(b) for an order that the plaintiff be reinstated as a pupil of the King George v.
School, Seremban, forthwith;
(c) damages and costs.
The first defendant is alleged to have unlawfully, maliciously and without any
valid reasons expelled the plaintiff from the school and that the action taken by
the first defendant was in violation of the rules of natural justice.
The facts leading to the expulsion of the plaintiff are conflicting. The following is
a brief summary. The plaintiff in his evidence stated that on 6 May 1968, the first
defendant announced in the school hall that a pupil was to be expelled. Later that
day he was informed by the first defendant in his office that he had been expelled
and was told to go home. A leaving certificate was subsequently sent to his father.
No indication, he said, was given either to him or to his father that he was to be
expelled, and neither was he asked to explain before the order of expulsion was
issued. His father appealed against the first defendant's decision to the Board of
Governors. The board considered the appeal and confirmed the first defendant's

decision.
The first defendant stated in his evidence that he decided to expel the plaintiff
after the talentime show which was held on the 1 April 1968. He received a report
of the plaintiff's misconduct at the talentime show from the teacher in charge of
the show. Reports on the behaviour of the plaintiff at that show were also made
by the head prefect and the chairman of the Interact Club. The report contained
allegations that the plaintiff flicked matches and indulged in hooliganism with his
group. He called the plaintiff with two other boys to his office on 2 April 1968,
questioned them on their behaviour and also told them that if they were to carry
on behaving like thugs, they would soon find themselves stabbed. He also
questioned the plaintiff alone on that day. He informed the plaintiff of his
misconduct on other occasions. The plaintiff denied the accusations. He however
admitted to some of the incidents that happened, for example, occupying a $3 seat
after paying for a $2 seat and leaving the hall a few times during the show. He
admitted laughing but denied shouting filthy words and flicking matches. The
first defendant added that during the course of the interview, the plaintiff asserted
that he (the first defendant) could be charged for defamation of character. The
plaintiff, he said, displayed blatant defiance of authority. He then informed the
plaintiff of his misbehaviour towards the Prefects' Board. On another occasion the
plaintiff brought a letter from his father saying that he was ill and yet he was
found later that day playing badminton. The plaintiff admitted when confronted
that he was running away from school activities but argued that the pain did not
hurt him if he played badminton. The first defendant also told the Court of certain
remarks made by the plaintiff's teachers in the plaintiff's exercise book to the
effect that the plaintiff was far from satisfactory and that he was a bad influence
in the class. The first defendant maintained that he took all these into
consideration before making his decision. He also caused further investigation
into the incidents of the plaintiff's misconduct before he formed the opinion that
the tone of the school was being affected by the plaintiff's behaviour. He
emphasized that the morale, discipline and attitude of students generally, and
at the same time the morale and confidence of the teachers were being affected.
The first defendant said that he decided to expel the plaintiff just before his
departure to Johore Bharu to attend a course some time on 14 April 1968.
In cross-examination the first defendant said that he had opportunity to Judge the
plaintiff's character for three months. Answering the question put by the plaintiff's
Counsel as to the purpose of calling the plaintiff and two other boys to his office
on 2 April 1968, he said that it was to investigate the validity of the report and to
decide the course of action to take. On being questioned further he agreed with
the plaintiff's Counsel that the purpose of calling the plaintiff and two other boys
was to investigate the incident at the talentime show. However, he said that in so
far as the plaintiff was concerned, he informed him of the history of his
misbehaviour. He disagreed with the plaintiff's Counsel's suggestion that most of

the reports were received after 2 April 1968, though he admitted that some of the
reports were made between 2 April and 10 April 1968. The first defendant also
said that he warned the plaintiff that probably he would expel him or take some
action or something to that effect.
The plaintiff in cross-examination admitted that the first defendant called him and
two other boys to his office. He alleged that the first defendant scolded them
about the incident at the talentime show and shouted at them at the top of his
voice. As a result, he broke down and started crying. He asked for permission to
leave the school as he was not feeling well but was refused. The first defendant
called him again to the office, this time alone, and asked him to swear on the life
of his (plaintiff's) mother that he did not misbehave himself at the talentime show
and he swore. He again asked for permission to go home but was refused. The
plaintiff reported this incident with the head teacher to the Chief Education
Officer but no action was taken. He later lodged a police report as a result of
which a summons was issued to the first defendant for assault. The case was
however withdrawn because, according to the plaintiff, he wanted to establish
good relationship with his teachers and head teacher. The plaintiff denied most of
the allegations of misconduct. He however admitted, for example, making funny
faces at the head prefect, but added that they were not rude faces.
I shall now examine the provisions of law under which the first defendant acted
when he decided to expel the plaintiff. Under reg. 4 of the Education (School
Discipline ) Regs. 1959 (LN 61/1959), the head teacher is responsible to the
Board of Governors for the discipline of the school and has authority over the
pupils. Regulation 8 of the said regulations provides that:Whenever it appears to the satisfaction of the head teacher of any school (a) to be
necessary or desirable for the purpose of maintaining discipline or order in any
school that any pupil should be suspended or expelled...... he may by order expel
him from such school.
Under reg. 10 a pupil or his parent may appeal against a decision of the head
teacher under reg. 8.
Regulation 8 seems to me to require that the head teacher must first be satisfied
that the plaintiff's expulsion is necessary or desirable for the purpose of
maintaining discipline or order in the school before he issued the order. It also
implies that the head teacher is required to make a decision before issuing the
order. Before taking such a decision there must be some process whereby the
head teacher can satisfy himself of the pupil's misconduct justifying expulsion. I
shall deal with this later in my judgment.
Before proceeding further, the Court proposes to consider whether such decision
may judicially be reviewed. de Smith in his book Judicial Review of

Administrative Action, 1st Edn., at pp. 61/62 said:In considering the scope of judicial review, a further broad distinction must be
drawn between ministerial, legislative, and executive or administrative powers,
on the one hand, and judicial powers, on the other. The validity of the exercise of
ministerial, administrative and legislative powers affecting the legal interests of
individuals is always open to challenge in the Courts, unless judicial review has
been excluded, directly or indirectly, by the relevant legislation. If the exercise of
the power is predicated on findings of law or fact, the correctness of those
findings may be impugned directly or in any appropriate form of collateral
proceedings - e.g., by resisting an action or prosecution for enforcement of the
order, by bringing an action for a declaration that the order is null and void, or by
suing the actor for a civil wrong."
In the instant case, the function of the head teacher cannot, in my opinion, be
regarded as purely administrative or judicial. Apparently, there are no clear
authorities to indicate when an administrative body can be said to be acting
judicially or exercising a quasi-judicial function. The reflection gathered from
authoritative pronouncements delivered by English Courts is that one must rely
mainly on inferences drawn from the manner in which the Courts have acted in
particular cases.
In Ramesh Chandra Sahu v. N Padhy, PrincipaI, Khallikote College, Berhampur,
AIR 1959 Orissa 196, RL Narasimham CJ, in his judgment on a petition by an exstudent of the college challenging the validity of an order passed by the principal
of that college expelling the petitioner, said at p. 203 (para. 25) :It is indeed very difficult to decide whether a particular order is quasi-judicial or
administrative. Several tests have been laid down and these have been reiterated
in a very recent decision of the Supreme Court reported in Radesham Khare v.
State of Madhya Pradesh, [1959] SCJ 6; AIR 1959 SC 107."
His Lordship referred to all undertaking contained in article 107 of the Education
Code which at the time of admission every student in the college, if he is a major,
or his parents, if he is a minor, is required to give. It reads:I undertake to see that my son/daughter/ward abides by the rules of the college
and the hostel attached to it. I also undertake to withdraw him/her from the
college and/or hostel should the principal decide that such withdrawal is
necessary in the interest of the institution."
His Lordship held "that the use of the word "decide" in article 107 of the
Education Code was very significant. There must be first a decision by the
principal, that the withdrawal of the boy from the college was necessary and it
was only after coming to such a decision that he should take further steps.

A decision necessarily involves hearing all parties concerned. The language of

article 107 of the Orissa Education Code supported the view that it was a quasijudicial order."
In the instant case although under reg. 8 of the Education (School Discipline )
Regs. 1959, the word "decide" is not used, the effect of the language used seems
to me to support the view that the order of the head teacher is a quasijudicial
order. The element of "decision" which I think is a necessary ingredient when
exercising a judicial function may be implied from the language used.
Furthermore, the fact that the regulations also make provision for an appeal
against the "decision" of the head teacher (reg 10) tends to strengthen my view
that it is a quasi-judicial order.
In University of Ceylon v. Fernando [1960] 1 All ER 631 the judgment of the
Privy Council was pronounced on the basis that the decision of the ViceChancellor of the University of Ceylon under cl 8 of the General Act of the
University of Ceylon, No. 1, Chapter VIII, Part I, was quasi-judicial. Clause 8
prescribes:Where the Vice-Chancellor is satisfied that any candidate for an examination, has
acquired knowledge of the nature or substance of any question or the content of
any paper before the date and time of the examination, or has attempted or
conspired to obtain such knowledge, the Vice-Chancellor may suspend the
candidate from the examination or remove his name from any pass list, and shall
report the matter to the Board of Residence and Discipline for such further
action as the board may decide to take."
The principle in Fernando's case was applied in Hoggard v. Worsbrough Urban
District Council [1962] 1 All ER 468 and at p. 471 Winn J said:In my view, University of Ceylon v. Fernando provides a very helpful glossary
and collection of references to the cases in which the Court has defined the duty
resting on persons whose decision is a quasi-judicial decision."
In para. 3 of the statement of claim the plaintiff alleges that the first defendant
unlawfully, maliciously and without any valid reason expelled the plaintiff from
the said school, and in para. 9 a somewhat similar allegation is made. There
appears to be no significant distinction between these two allegations. In the light
of this allegation, it is not perhaps inappropriate at this juncture to examine the
facts to discover whether the head teacher had valid reasons to act under reg. 8.
It is clear from the evidence of the first defendant that he decided to expel the
plaintiff after the talentime show on 2 April 1968, being satisfied that it was
necessary to expel the plaintiff for the purpose of maintaining discipline in the
school.

I am satisfied that on 2 April 1968, the first defendant had sufficient evidence
relating to instances of the plaintiff's misconduct in his possession to justify him
to commence proceedings to expel the plaintiff. I have carefully considered the
evidence given by the plaintiff and the head teacher and I form the impression
that the plaintiff was not telling the truth to this Court when he denied the
allegations. On the other hand, I accept the evidence given by the first defendant.
I have not the slightest doubt that the allegations of the plaintiff's misconduct are
well-founded. It is apparent from the evidence that the plaintiff is an intelligent
pupil but it is most unfortunate that his conduct has not matched his mental
qualities. The reports received by the first defendant irresistibly show that the
plaintiff was not only irresponsible, arrogant, spoilt and conceited, but also
inconsiderate and had no respect for authority.
The first defendant is invested with the legal powers to expel and, in my opinion,
except for the procedure adopted, he exercised that lawful power honestly and in
good faith. It is alleged by the plaintiff that the first defendant acted maliciously
when purporting to expel the plaintiff. In this connection, I accept the evidence of
the first defendant and also the statement in his affidavit (para. 6, p. 17 of Ex P1)
where he said "I deny that I was actuated by malice in expelling the plaintiff. The
decision to expel him was taken by me after consulting my senior teachers and
after due consideration of the plaintiff's conduct and character in school. To
consider this question on disciplinary action against the plaintiff, reports from
form teachers and the Prefects' Board were first obtained and duly considered". It
is suggested by the plaintiff that the reason for the expulsion may be attributed to
the fact that the plaintiff had lodged a report against him for assault. I do not find
any substance in this allegation; at any rate, I accept without reservation the
statement in the affidavit sworn by the first defendant appearing on p. 20 of Ex
P1, para. 10, which says that:I say that this report by the plaintiff had not influenced my decision to expel the
plaintiff. I had already decided to expel the plaintiff but was only waiting to
discuss this with my senior teachers which I did in early April 1968. The latest
incident took place on 2 April 1968. The report by the plaintiff was not made to
the police till the 10 April 1968 and a copy thereof was sent to me a few days
later."
It is needless for me to repeat that it is abundantly clear from the evidence that the
first defendant had good reasons for wanting to expel the plaintiff. In these
circumstances, I find that the plaintiff's allegations that the first defendant had
acted unlawfully, maliciously, capriciously and without valid reasons are without
substance and ill-founded. To my mind, there is no shadow of a doubt as to the
honesty and bona fide of the head teacher.
The question before the Court is whether the plaintiff, before the expulsion order
was issued, acquired adequate notice of his impending expulsion and, if he did,

whether an adequate opportunity to explain was accorded him. In short, whether

the first defendant before arriving at a decision to expel the plaintiff did apply
some form of procedure in compliance with the rules of natural justice.
The learned Legal Adviser contended that the head teacher was satisfied and as
such he could expel and there need not be any specific charge levelled against the
plaintiff. He added that the power to expel vested with the head teacher is
discretionary. I am unable to accept this contention. As I said earlier, the process
of satisfying himself would require him (the first defendant) to enquire into the
instances of the plaintiff's misconduct and hearing the explanation, if any, in
rebuttal. I do not disagree that a certain amount of discretion is vested in the first
defendant in the exercise of his function, nevertheless, as in Fernando's case, his
function is quasi-judicial and he is therefore required to act quasi-judicially.
Furthermore, it cannot be implied from reg. 8 that the power to expel was solely
in the discretion of the first defendant (see R v. Senate of the University of Aston,
Ex parte Roffey and Anor. [1969] 2 All ER 964). The learned Legal Adviser also
submitted that the head teacher had adequately warned the plaintiff that he might
be expelled on 2 April 1968. He argued that this was sufficient compliance with
the rules of natural justice as the head teacher was not required to apply the rules
strictly. It is a question of fact for the Court to consider whether in the
circumstances a warning of the nature given by the bead teacher was sufficient
compliance with the rules of natural justice.
Dato' SP Seenivasagam, Counsel for the plaintiff, alleges that there was a
violation of the rules of natural justice. The interview on 2 April 1968, he said,
was primarily for the purpose of enquiring into the incident at the talentime show.
The plaintiff was not informed that he was to be expelled and he was not made to
realise that he was in a position to be expelled. He submitted that it was necessary
to call upon the plaintiff to show cause why he should not be expelled and failure
to do this is a violation of the rules of natural justice.
The first defendant himself gave evidence that he did inform the plaintiff that he
would probably expel him (plaintiff) or take some action or something to that
effect. The first defendant also said in the affidavit on p. 18 of Ex P1 that he
called the plaintiff up for questioning as to his bad behaviour at the talentime
show with two other boys. The first defendant contended that the plaintiff had
reasons to believe that he (the first defendant) may expel him. I accept this.
Nevertheless, it is probable that the plaintiff failed to realise that the first
defendant was, in fact, proposing to take such drastic action. In any event, it is, I
think abundantly clear that at no time did the first defendant give any definite
intimation or warning to the plaintiff during the interview on 2 April 1968, that he
was going to be expelled unless he could give an explanation. He could not in the
circumstances have done so since at that time no definite action was contemplated
by the first defendant. The first defendant admitted in the affidavit on p. 18 of Ex
P1 that he only decided the expulsion after several discussions and receiving

verbal reports from the form teacher. lt is therefore evident that while the
intention to expel the plaintiff may be forming in the first defendant's mind, he
did not however on 2 April 1968, come to any definite decision - not until 10
April 1968. The plaintiff could not therefore have known or have had reasons to
believe that he was appearing before a disciplinary proceeding for his expulsion.
At best, it can perhaps be inferred that he knew or had good reasons to believe
that some form of punishment may be imposed.
The regulations clearly did not provide any specific procedure to be followed.
Nevertheless, in exercising a quasi-judicial function it is essential that the first
defendant should give an equitable decision. The plaintiff is at least entitled, I
think, to an opportunity of being heard. The question in the present case is
whether the first defendant, by proceeding in the manner that he did, complied
with the rules of natural justice.
The fact that no specific breach is prescribed under reg. 8 does not necessarily
mean that the head teacher is not obliged to inquire into the state of affairs
relating to the plaintiff' s. conduct before satisfying himself that it was necessary
or desirable to expel the plaintiff for purposes of maintaining discipline or
order in the school. In that respect, I find no significant distinction between the
effect of the provision of cl 8 of the General Act in Fernando's case and reg. 8 of
the Education (School Discipline ) Regs., 1959 in this case. In exercising a
quasijudicial function the first defendant is therefore required to act quasijudicially.
It is true to say that the rules of natural justice need not in certain circumstances
be applied strictly, but this does not mean that the inquiry may be conducted with
complete disregard to the rights accorded by the principles of natural justice.
What, therefore, are authoritative pronouncements on the principles of law
governing audi alterem partem rule when exercising a function in this kind of
case? In Ramesh Chandra's case, supra, Narasimham CJ after reviewing English,
American and Indian authorities, said at p. 203:Thus a review of the Indian decisions shows a divergence of view as to whether
an order of expulsion or rustication passed by the head of an educational
institution against an offending pupil would be a quasi-judicial act or purely
administrative act. The majority view which is based on the judgment of Bose J
in AIR 1952 Cal. 594 seems to be that it is a quasi-judicial act. But whether it is a
quasi-judicial act or administrative act, the majority view of the High Courts
(even that of Allahabad High Court as reflected in the decision of Aggarwalla J)
seems to be that the student concerned should get a reasonable opportunity of
showing cause against the proposed punishment.
The English and American decisions cited above also support the view that even
in respect of such administrative acts the rules of natural justice embodied in the
maxim audi alterem partem should be complied with."

As I said earlier, the element of "decision" may be implied from the language of
reg. 8, and as was said by Narasimham CJ in Ramesh Chandra's case, a decision
necessarily involves hearing all parties concerned.
I also referred earlier to Fernando's case. In this case as in Fernando's case no
special form of procedure is provided for the head teacher to follow, in the
process of satisfying himself before deciding to expel the plaintiff. In Fernando s
case, Lord Jenkins said at p. 638:The clause is silent as to the procedure to be followed by the Vice-Chancellor in
satisfying himself of the truth or falsity of a given allegation. If the clause
contained any special directions in regard to the steps to be taken by the ViceChancellor in the process of satisfying himself he would, of course, be bound to
follow those directions. But as no special form of procedure is prescribed, it is for
him to determine the procedure to be followed as he thinks best, but, to adapt to
the present case the language of the judgment of this Board in De Verteuil v.
Knaggs ([1918] AC at p. 560), subject to the obvious implication that some form
of inquiry must be made, such as will enable him fairly to determine whether he
should hold himself satisfied that the charge in question has been made out. As
was said by Lord Shaw of Dunfermline in Local Government Board v. Arlidge
([1915] AC at p. 138), of the authority there concerned it
'..... must do its best to act justly, and to reach just ends by just means. If a statute
prescribes the means it must employ them. If it is left without express guidance it
must still act honestly and by honest means.'"
And at p. 637, his Lordship speaking on the rights accorded by the principles of
natural justice referred to some of the principles laid down in previous cases, and
at p.s 637/8 said:These rights have been defined in varying language in a large number of cases
covering a wide field. Their Lordships do not propose to review these authorities
at length, but would observe that the question whether the requirements of natural
justice have been met by the procedure adopted in any given case must depend to
a great extent on the facts and circumstances of the case in point. As Tucker LJ,
said in Russell v. Duke of Norfolk ([1949] 1 All ER 109 at p. 118):
'There are, in my view, no words which are of universal application to every kind
of inquiry and every kind of domestic tribunal. The requirements of natural
justice must depend on the circumstances of the case, the nature of the inquiry,
the rules under which the tribunal is acting, the subject-matter that is being dealt
with, and so forth."
In the earlier case of General Medical Council v. Spackman ([1943] 2 All ER 337
at p. 341) Lord Atkin expressed a similar view in these words:
'Some analogy exists no doubt between the various procedures of this and other
not strictly judicial bodies; but I cannot think that the procedure which may be
very just in deciding whether to close a school or an insanitary house is

necessarily right in deciding a charge of infamous conduct against a professional

man. I would, therefore, demur to any suggestion that the words of Lord
Loreburn LC, in Board of Education v. Rice [1911] AC 179 at p. 182 afford a
complete guide to the General Medical Council in the exercise of their duties.'
With these reservations as to the utility of general definitions in this branch of the
law, it appears to their Lordships that Lord Loreburn's much quoted statement in
Board of Education v. Rice still affords as good a general definition as any of the
nature of and limits on the requirements of natural justice in this kind of case. Its
effect is conveniently stated in this passage from the speech of Viscount Haldane
LC, in Local Government Board v. Arlidge ([1915] AC 120 at p. 132), where he
cites it with approval in the following words:
'I agree with the view expressed in an analogous case by any noble and learned
friend Lord Loreburn. In Board of Education v. Rice he laid down that, in
disposing of a question which was the subject of an appeal to it, the Board of
Education was under a duty to act in good faith, and to listen fairly to both sides,
inasmuch as that was a duty which lay on every one who decided anything. But
he went on to say that he did not think ilk was bound to treat such a question as
though it were a trial. The board had no power to administer an oath, and need not
examine witnesses. It could, he thought, obtain information in any way it thought
best, always giving a fair opportunity to those who were parties in the
controversy to correct or contradict any relevant statement prejudicial to their
view.'
From the many other citations which might be made, their lordships would select
the following succinct statement from the judgment of this Board in De Verteuil
v. Knaggs ([1918] AC 557 at p. 560):
'Their Lordships are of opinion that in making such an inquiry there is, apart from
special circumstances, a duty of giving to any person against whom the complaint
is made a fair opportunity to make any relevant statement which he may desire to
bring forward and a fair opportunity to correct or controvert any relevant
statement brought forward to his prejudice.'
The last general statement as to the requirements of natural justice to which their
Lordships would refer is that of Harman, J, in Byrne v. Kinematograph Renters
Society, Ltd ([1958] 2 All ER 579 at p. 599) of which their Lordships would
express their approval. The learned Judge said this:
'What, then, are the requirements of natural justice in a case of this kind? First, I
think that the person accused should know the nature of the accusation made;
secondly, that he should be given an opportunity to state his case; and, thirdly, of
course, that the tribunal should act in good faith. I do not think that there really is
anything more.'"
The principle laid down in Fernando's case was applied two years later in
Hoggard v. Worsbrough Urban Distract Council, supra, where Winn J at p. 471
said:Where two parties are in dispute, and the obligation of some person or body is to
decide equitably between the competing claims, each claim must receive

consideration and each claimant must, as a rule, be invited - not merely left so
that if he chooses to take the initiative he can do it - to put forward the material in
the form of documents or accounts which he desires to have considered, and an
opportunity must be afforded to him of making comment on material of the same
character which has been put forward by rival claimants and which the council
are proposing to consider."
In the light of the principles laid down in the cases cited above, I am satisfied that
in the circumstances of the present case a mere warning by the first defendant that
the plaintiff may probably be expelled fell short of the requirements of natural
justice. The first defendant, in my opinion, omitted to provide adequate notice to
the plaintiff to enable him to truly appreciate the exact nature and purpose of the
proceedings when he interviewed the plaintiff at his office on 2 April 1968. In my
view, such omission had the necessary effect of depriving the plaintiff of a fair
opportunity of being heard. Furthermore, such omission, to my mind, goes to the
root of the very basis of the requirements of natural justice and is serious enough
to warrant a finding by this Court that it is sufficient to invalidate the decision of
the head teacher. For these reasons, I hold that the claim must succeed.
Having thus decided, I do not propose to consider the effect of the proceedings
before, and the decision of, the Board of Governors.
As regards the claim for damages, I am not satisfied that the plaintiff has
succeeded in proving the defendants' liability. The first defendant's omission to
provide adequate notice in the circumstances mentioned above does not legally
entitle the plaintiff to claim damages unless it is shown that the first defendant
acted dishonestly, maliciously or in bad faith. I have, however, found that in the
circumstances of this case the first defendant acted honestly and bona fide.
I therefore enter judgment for the plaintiff and declare that the order of expulsion
of the plaintiff as a pupil from the King George v. School, Seremban, made by the
first defendant with effect from 4 May 1968, is null and void and is of no effect. I
also order that the plaintiff be reinstated as a pupil of the King George v. School,
Seremban, and costs.
Order accordingly.