Jayawardane v Senaratne & others
SENARATNE & OTHERS
COURT OF APPEALSRISKANDARAJAH, J.
CA 2366/2004DC COLOMBO 7, 2006
Writ of Certiorari / Mandamus – Criminal Procedure Act 15 of 1978 – Section108 – Coroner – Services terminated without any inquiry – Charge sheet notserved – Audi Alteram partem principle – Applicability – Petitioner onextension.
At the inquest into the death of a school boy – the petitioner – city coroner -returned a verdict of suicide on the evidence before him. A show cause letterwas received by him alleging that the petitioner failed to consider relevantmaterials sufficiently before coming to the said verdict. The petitioner repliedthe said letter, but his services were terminated without any inquiry.
It was contended that his services were summarily terminated without anyinquiry and it is irrational, unfair, unreasonable, arbitrary and tainted with malatides, for the reason that the show cause letter was solely based on theunfounded allegations of the deceased's mother – and that he was not servedwith a charge sheet and he was not given an opportunity to be heard.
There is no Rule governing the petitioner's appointment and theappointment, extensions and termination of service as an inquirer isin the discretion of the relevant Minister. The petitioner is inextension of his service and his extension was coming to an end inDecember 2004 and the petitioner's services were terminated inOctober 2004, two months before the date on which the petitioner'sextension was coming to an end.
In view of the facts and circumstances of this case the petitionercannot claim that a charge sheet should have been served on himand an inquiry should have been held. The explanation given wasnot accepted therefore the respondents terminated the services.
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Per Sriskandarajah, J.
"The extent and the nature of hearing in relation to a termination ofservice depends on the circumstances of the case, the nature of theservice, the rules under which the respondent is acting, the subjectmatter that is being dealt with"
In these circumstances, the petitioner cannot state that the rule ofnatural justice have been denied to him.
APPLICATION for a Writ of Certiorari.
Cases referred to:
Russel v Norfolk – 1 All ER 109 at 118
Premachandra v Jayawickrema – 1994 – 2 Sri LR 90, 105
Bandara v Premachandra – 1994 – 1 Sri LR 301-312
Tennekoon v De Silva – 1997 1 Sri LR 16 (SC)
Jayawardane v Wijeyetilleke – SC 186/95 – SCM 27.7.95
J.C. Weliamuna with U. Wijesinghe for petitioner.
L.M.K. Arulanandan DSG for respondents.
March 12, 2007SRISKANDARAJAH, J.
The petitioner was serving as a City Coroner in the Gampaha oiDistrict during the relevant period. He was appointed as the CityCoroner of Gampaha District by the letter of appointment dated
issued by the Secretary to the Ministry of Justice. Thisappointment was with effect from 1.12.1990 for a period of 3 years.
This appointment was extended time to time up to 18.12.2004. Thepetitioner submitted that on or about 24.6.2004, he conducted aninquest into the death of a school boy who met with a train accident.
At the inquiry the petitioner recorded the mother's evidence and herbrother's evidence. The petitioner further submitted that both the iomother and her brother have stated that they do not suspect anyfoul play and that they too suspect that the boy had committedsuicide by jumping into the wheels of a train. In the Inquest reportthe petitioner returned a verdict of suicide on the evidence beforehim. The petitioner submitted that he received a show cause letterdated 25.08.2004, alleging that the petitioner failed to consider
Jayawardane v Sanaratne & others
relevant materials sufficiently before coming to the said verdict(P6). The petitioner replied the said letter by his letter of 3.9.2004(P7). The petitioner contended that his services were summarilyterminated by the 1st respondent by his letter dated 8.10.2004without any inquiry (P8), and it is irrational, unfair, unreasonable,arbitrary and tainted with mala fides for the reason that the showcause letter was solely based on the unfounded allegations of thedeceased's mother, he was not served with a charge sheet and hewas not given an opportunity to be heard.
The petitioner in this application is seeking a writ of certiorarito quash the decision contained in P8 and a writ of mandamusdirecting the 1st to 3rd respondents to extend his service upto theage of 70 years as per Ministry of Justice Circular No. 15/94 dated21.6.2004.
The respondent contended that the mother of the deceasedboy by her affidavit and the letter dated 14.07.2004 requested theSecretary Ministry of Justice to have another Inquiry as she issuspecting foul play. She also complained by her letter dated7.8.2004 that the petitioner has recorded matters not stated by herin her statement at the inquest and the contents was not explainedto her. She gave a detail statement to Sri Lanka PoliceHeadquarters Colombo 1 on 27.04.2004 suspecting foul play andcomplained that the petitioner has not conducted the inquest interms of the requirements of law (X2). The complaint of thedeceased boy's mother with her affidavit was forwarded to theGampaha Magistrate. The 1st respondent submitted that theperusal of the inquest proceedings in M.C. Gampaha Case No.38136 does not reveal an iota of evidence to indicate that the boycame about his death by committing suicide. The learnedMagistrate in his Order dated 01.11.2004 (P9) has come to thefinding that the petitioner has not duly performed his duties as aninquirer. He has observed the following lapses in the inquiry: thatthe petitioner has not visited the seen, he has not ascertained theidentity of the person who brought the body of the deceased to themortuary. The evidence of the doctor is to the effect that the injurieswould have been caused as a result of train accident or the boybeing pushed on to ongoing train. The 1st respondent furthercontended that the petitioner as an inquirer was not entitled in law
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to investigate the crime, and the petitioner as inquirer had only torecord the cause of death. The petitioner’s verdict of suicide is notsupported by evidence and has impeded the progress ofinvestigation on the part of the Police and has resulted in amiscarriage of justice. In this regard an explanation was called byhis letter dated 25.08.2004 (P6) on the directions of the 2ndrespondent as to why he came to the finding that the boy cameabout his death by committing suicide. The petitioner by lettermarked P7 has explained that he came to the conclusion byexamining the injuries found on the deceased that the death wasdue to suicide.
It is obvious that only by examining the injuries on thedeceased who was run over by a train one cannot come to theconclusion that the death was due to suicide, accident or murder.The 1st respondent also submitted that by his letter dated
observations were called from the learned Magistrateand he has observed that the petitioner has not duly performed hisofficial duties and his services should be suspended till theconclusion of the inquiry.
The 1st respondent submitted that the learned Magistrate'sobservation and other facts in the said inquiry clearly establishedthat the petitioner is an incompetent inquirer and to allow thepetitioner to continue to function as an inquirer would obstruct thecause of justice and would lead to travesty of justice.
The Appointment of an Inquirer (Coroner) is provided undersection 108 of the Criminal Procedure Act No. 15 of 1979. Underthis section the Minister has discretion to appoint any person byname or by office to be an inquirer for any area. In this instant thepetitioner by letter dated 23.11.1990 (P1) was appointed as anInquirer (Coroner) with effect from 1.12.1990 for a period of threeyears. His services were extended time to time up to 18.12.2004 byletter dated 23.10.2003. The Ministry of Justice by its Circular No.15/94, dated 21/6/2004 marked P2 has extended the retirementage of the inquirer from 65 to 70. But this extension has to be madeyearly by the Minister after consideration of the application of theinquirer.The petitioner was given the extension time to time underthe said circular yearly after consideration. On the said complaintmade by the mother of a deceased boy, the respondents after
Jayawardane v Senaratne & others
investigation and after calling for explanation from the petitionerfound that the petitioner has not performed his duties as expectedto be done by an inquirer and he has acted in an unbecomingmanner. In these circumstances the extension given to thepetitioner upto 18.12.2004 was terminated on 8.10.2004 (P8) forthe reason stated in the said letter.
The petitioner contended that he was not served with aCharge Sheet regarding the alleged lapses on his part and the 100show cause letter marked P7 was based on' the unfoundedallegation of the deceased mother and he was not given anopportunity to be heard in defence before the arbitrary terminationof his service and therefore the protection of the rules of naturaljustice has been denied to him. In these circumstances thepetitioner seeks to quash the decision to terminate his service asan inquirer and a Mandamus directing the respondents to grantextension up to petitioner’s 70 years.
The audi alteram partam rule requires that there should beprior notice and hearing for the person whose interests would be noadversely affected by the act or decision in question. How thisprinciple applies in any given case is depend upon the particular setof circumstances. More specifically, the wide range of cases inwhich the audi alteram partam principle is held applicable ensuresthat as a principle it can have no fixed and immutable content .Tuker LJ emphasised this point in f?usse//v Norfolk<1) at 118 D-E:
"There are no words which are of universal application toevery kind of inquiry …. The requirement of natural justicemust depend on the circumstances of the case, thenature of the inquiry, the rules under which the tribunal is 120acting, the subject matter that is being dealt with and soforth.”
"It is conceivable therefore that there may be situations inwhich natural justice does not require that a person must be servedwith a charge sheet and an inquiry should be held. But a hearingshould be given by calling for explanation or by requesting toexplain a particular conduct. In this case the petitioner was onlyappointed as an inquirer under the Criminal Procedure Act. Theappointment letter does not give the terms and conditions of the
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appointment. The said appointment was not covered by theEstablishment Code or any other Rule or Regulation for theauthorities to follow the procedure set out in the Code, Rule orRegulation to terminate his service. The petitioner at the time oftermination of his service was in extension and the extension isgiven after consideration of his ability. When the appointingauthority is of the view that the ability of the petitioner is lacking hecould refuse to give any further extension. But in this case therespondents before the expiration of the period of the extensionhas terminated the services of the petitioner therefore the petitionerhas a legitimate expectation to serve until the end of his extendedperiod of service. In these circumstances the petitioner is entitledfor a hearing. In Premachandra v Jay a wickremat?), at 105 the courtheld;
"There are no absolute or unfettered discretions in publiclaw; discretions are conferred on public functionaries intrust for the public, to be used for the public good, and thepropriety of the exercise of such discretions is to bejudged by reference to the purposes for which they wereso entrusted."
That applies to powers of appointment and dismissal, Bandarav Premachandra<3) and Tennakoon v de Silva.W In Jayewardene vWijeyetilleke<5) SC held:
"Respect for the Rule of Law requires the observance ofminimum standards of openness, fairness, andaccountability, in administration; and this means – inrelation to appointments to, and removal from, officesinvolving powers, functions and duties which are public innature – that the process of making a decision should notbe shrouded in secrecy, and that there should be noobscurity as to what the decisions is and who isresponsible for making it."
The extent and the nature of hearing in relation to atermination of service depends on the circumstances of the case,the nature of the service, the rules under which the respondent isacting, the subject matter that is being dealt with. As I havediscussed above there is no rule governing the petitioner's
Karunaratne v Attorney-General
appointment and the appointment, extension and termination ofservice as an inquirer is in the discretion of the relevant minister.
The petitioner is in extension of his service and his extension wascoming to an end in December 2004 and the petitioner's service 170was terminated in October 2004 two months before the date onwhich the petitioner's extension was coming to an end. This wasdone after having given the petitioner a hearing by way of a showcause letter. In view of the facts and circumstances of this case thepetitioner cannot claim that a charge sheet should have beenserved on him and an inquiry would have been held. Theexplanation given by the petitioner was not accepted by therespondents therefore the respondents terminated the services ofthe petitioner. In these circumstances the petitioner cannot statethat the rules of natural justice have been denied to him. As the isopetitioner has not shown any other ground to challenge the saidorder this court dismisses this application without costs.
JAYAWARDANE v. SENARATNE & OTHERS