053-SLLR-SLLR-1997-V-1-ABDUL-CADER-AYOOB-v.-THE-INSPECTOR-OF-POLICE-AND-OTHERS.pdf
ABDUL CADER AYOOB
v.THE INSPECTOR GENERAL OF POLICE AND OTHERS
SUPREME COURT.
FERNANDO, J.,
ANANDACOOMARASWAMY, J. ANDDR. GUNAWARDENA, J.
S.C. APPLICATION NO. 486/96MARCH 20, 1997.
Fundamental Rights – Article 12(1) of the Constitution – Police Reserve – PoliceOrdinance sections 24, 25(i), 26(i) and 26B(i) – Can commandant of the PoliceReserve be by passed in matter of demobilization or dismissal? – Violation ofnatural justice – Arbitrary, capricious and unreasonable dismissal from service -Interpretation Ordinance section 14(f).
The petitioner joined the Sri Lanka Police as a Reserve Sub-Inspector on18.11.89. He wias suspended from service on 26.12.95 and reinstated. Thereafteron 12.5.96 he was informed that his services had been invalidated on the ordersof the Inspector-General of Police.
Held:
Under sections 24, 25(i), 26(i) and 26(B)(i) the Police Reserve to assist thePolice Force was established under a Commandant.
The order whether for demobilization, invalidation or termination was on thedirection of the Inspector-General of Police. It was in violation of Article 12(1)because it was arbitrary, capricious and unreasonable.
Section 14(f) of the Interpretation Ordinance applies and only theCommandant could terminate petitioners services.
The protection of the law which Article 12(i) guarantees is not just theprotection of the criminal law, but of the law in general: and one aspect of thatprotection is precision and unambiguity in matters of vital concern to theindividual.
Section 26B confers no absolute, unfettered or unreviewable power on theInspector General of Police. Even if he had the power to dismiss a Reserve PoliceOfficer, he failed in this instance to exercise it in the interests of the State, thePolice Service and/or the public.
Per Fernando, J.: “On the available material, the Petitioner has been separatedfrom the Police Reserve for no reason at all. There has been a flagrant violation ofhis fundamental right to equality and the equal protection of the law – a violationwhich, in the context of present security needs, seems difficult to reconcile withthe national interest".
Cases referred to:
Mallows v. Commissioner of Income Tax(1962) 66 N.L.R. 321, 323.
Premachandra v. Jayawickrema (1994) 2 Sri L.R. 90, 105.
Bandara v. Premachandra (1994) 1 Sri L.R. 301, 312.
Tennakoon v. de Silva SC (1997) 1 Sri LR 16.
Jayawardene v. Wijeyetllleke, S.C. 186/95 S.C. Minutes of 27.7.95.
APPLICATION for relief for infringement of fundamental rights under Article 12(1)of the Constitution.
Sanjeewa Jayawardena for petitioner.
W. A. Fernando for 2nd respondent.
Cur. adv. vult.
April 02,1997.
FERNANDO, J.
The petitioner joined the Sri Lanka Police as a Reserve Police Sub-Inspector on 18.11.89, and, after training, served in that capacityat Pettah and Maradana. He was granted leave to proceed on
in respect of alleged violations of Articles 11 and 12(1):the first was an allegation of racial abuse and physical assault bythe 2nd respondent, an Assistant Superintendent of Police,on 7.12.95, and the second was the arbitrary, capricious andunreasonable termination of his services, seemingly upon thedirections of the 1st respondent, the Inspector-General of Police,on 12.5.96.
Although notices were served despatched on the 1st to 3rdrespondents and the Attorney-General, the 4th respondent, only the2nd respondent filed objections. The journal entry of 16.1.97, thethird date of hearing, records the appearances on behalf of thepetitioner and the 2nd respondent, and notes that “the Attorney-General is not appearing either for the 1st respondent or the 3rdrespondent”, but does not indicate who gave that information. It alsorecords a request “that the Attorney-General do assist this Court asamicus". The hearing was fixed for 20.3.97. Although by letter dated
the Registrar duly conveyed that request, no officer of theAttorney-General’s Department was present on 20.3.97, which wasthe fourth date of hearing. The 1st and 3rd respondents were absentand unrepresented.
A preliminary objection was taken by learned Counsel for the 2ndrespondent that the petition was time-barred – having been filed on
– because the violation of Article 11 was alleged to haveoccurred on 7.12.95. Thereupon Mr. Jayawardene for the petitionerstated that he was not pursuing his claim under Article 11. Thepetition having been filed within one month of termination, the claimunder Article 12(1) was not barred. While Mr. Jayawardene thenstated that he was also claiming relief against the 2nd respondent, forhaving instigated that termination, at a later stage he abandoned thatclaim.
The 2nd respondent does not dispute the petitioner’s claim that hehad been assigned for duty on 7.12.95 at 10.00 p.m., at a road-blockclose to the headquarters of the Colombo Fire Brigade; that theregulations require that check-points at road-blocks be manned byan Inspector assisted by four Constables; that only three Constableshad been assigned to assist him; and that of these, only one hadreported for duty. Admittedly, between 10.20 and 10.40 p.m. noneof the vehicles which had passed through the check-point hadbeen checked. The 2rid respondent who was “on night-rounds duty”observed this, and reprimanded the petitioner, whose explanationwas that he lacked the staff to do checks. The 2nd respondentordered the petitioner and the other Constable to return to Maradana,and thereafter reported the petitioner’s lapses of duty. Thepetitioner claims that, in the presence of members of the public,he was abused and assaulted by the 2nd respondent (who deniesthat allegation), and that he was thereafter hospitalized for seventeendays. When he reported for duty on 26.12.95, the 3rd respondent(the Officer-in-charge, Maradana) informed him that he had beensuspended from service. Against that he appealed, and byPolice messages of 7.3.96 and 8.3.96 he was informed that hehad been reinstated with immediate effect and postedto the Foreshore Police. He was not paid for the period ofsuspension.
Having served for two months, on 12.5.96 he was informed of aPolice message (of which a copy has been produced as P 18), whichstated that the Senior Superintendent of Police (North ?) hadinformed the Foreshore Police by telephone that upon an order of theInspector-General of Police the services of the petitioner had beeninvalidated. Although the Sinhala words used (“etQ&xsi oc ©0”)mean invalidated, or cancelled, or annulled, this has been treated asa termination. In P 18, cages headed “Sending Operator" and“Receiving Operator’’ have been left blank. No charge sheet wasserved on the Petitioner, no inquiry was held, and no reasons weregiven for his summary severance from service.
The relevant provisions of the Police Ordinance are the following:
24. There shall be established a police reserve to assist the policeforce in the exercise of its powers and the performance of itsduties.
25(i) For the purposes of this Ordinance, there shall be appointeda Commandant who shall be in command of the police reserveand be responsible for its general administration in accordancewith the provisions of this Ordinance and the regulations madehereunder.
26(i) The Commandant shall, in accordance with the regulationsmade in that behalf, appoint to the police reserve such number ofReserve Superintendents, … Reserve Sub-Inspectors, … as maybe determined by the Inspector-General of Police.
26B(i) The Commandant shall, on the directions of the Inspector-General of Police, mobilize such officers of the police reserve asare required to assist the police force in the exercise of its powersand performance of its duties. No such officer shall be de-mobilized by the Commandant except on the directions of theInspector-General of Police.
(2) The notification of mobilization may be conveyed to anymember of the police reserve orally or in writing or by anannouncement made over the radio or by publication in anewspaper.
No submission was made that there was any regulation under thePolice Ordinance which had a bearing on the matters in issue inthis case.
Mr. Jayawardene’s contention was two-fold. Section 26B did notauthorise the Inspector-General of Police to terminate the petitioner’sservices, or to demobilize him, but only to direct the Commandantto demobilize him; it was the Commandant of the Police Reserve whohad appointed him, and there was no express provision asto termination; accordingly section 14(f) of the InterpretationOrdinance applied; hence it was only the Commandant whocould terminate his services; and that had not happened. In
any event, whether the Police message P18 is treated as an order fordemobilisation or termination, by or on the direction of the Inspector-General of Police, it was in violation of Article 12(1) becauseit was arbitrary, capricious and unreasonable. The Petitioner askedfor reinstatement together with full back wages from the dateof suspension.
In regard to the petitioner’s alleged lapses on 7.12.95, it is now toolate to consider whether his suspension was unlawful or improper,whether for want of an inquiry conducted in accordance withthe principles of natural justice or otherwise. For the purposesof this case I must presume that for those lapses he wasduly punished, that suspension for about two months was a properand appropriate punishment, and that thereafter he wasduly reinstated. Since the petitioner cannot now challenge thepropriety of that suspension, neither can he claim back wagesfor that period.
The petitioner has expressly averred that the 1st to 3rdrespondents “have singled him out for unfair and unequal treatmentwhich is arbitrary, capricious, unreasonable and amounts to grossvictimization … [in violation of] his fundamental rights of equalityand [to the] equal protection [of the] law”. In view ofMr. jayawardene’s concession, I do not have to consider any claimagainst the 2nd respondent for what was at least a constructivetermination of the Petitioner’s services on 12.5.96. And it is obviousthat the 3rd respondent, who was at Maradana, had nothing todo with that. However, the 1st respondent has not denied those (6rany other) averments in the petition, and the petitioner wouldhave been entitled to a finding on the basis that the 1st respondentdid give a direction which resulted in arbitrary, capricious,and unreasonable dismissal.
However, quite apart from the 1st respondent’s failure to deny thepetitioner’s averments, there are several other features whichindependently establish the petitioner’s case of arbitrary, capricious,and unreasonable dismissal.
First, the Police message P 18 refers to a direction, but there isdoubt as,to what the 1st Respondent actually directed:
demobilization, invalidation, or termination? To whom was thatdirection given? And by whom was it carried out? In the absence ofexpress provision (cf. section 26B(2)), directions of this kind cannotbe oral: they must be in writing, or, at least, an almostcontemporaneous written record must be made. As observed inMallows v. Commissioner of Income Taxm in the context of taxation:
“the expression “the opinion of the Commissioner” specified insection 6(2)(b), must not only be entertained generally, so to say,in the mind of the Commissioner, but the matter must be taken astep further and translated into words in a document so asto serve as evidence to guide those functionaries who have thelegal duty cast on them to determine “net annual value" forthe purposes of section 6 of the Income Tax Ordinance."(emphasis added)
That direction was not produced, and there was thus noacceptable evidence as to what the Inspector-General of Policeactually directed, what is worse, there was no direct communicationto the Petitioner of the fact that his services were not required,and he was even left in doubt as to his status: had he beendismissed from the Police Reserve, or was it that he had onlybeen demobilized? Can he be mobilized again, and, perhaps,called upon to serve in an operational area? The protection of the law,which Article 12(1) guarantees, is not just the protection of thecriminal law, but of the law in general; and one aspect of thatprotection is precision and unambiguity in matter of vital concernto the individual. This Court cannot lightly assume that thenorm is otherwise.
Second, in the absence of any contrary submission as tothe applicability of section 14(f) of the Interpretation Ordinance,it seems to me that it was only the Commandant who could lawfullyhave demobilized or dismissed the petitioner. There is nothingto suggest that the Commandant did so, either on his own or upona direction. The dismissal of the petitioner was therefore contraryto law.
Third, even if I were to assume that the 1st. respondent, asInspector-General of Police, did have the power to direct thepetitioner’s dismissal, and could have done so orally, and even by-passing the Commandant, yet section 26B confers no absolute,unfettered or unreviewable power, because:
“There are no absolute or unfettered discretions in public law;discretions are conferred on public functionaries in trust for thepublic, to be used for the public good, and the propriety of theexercise of such discretions is to be judged by reference to thepurposes for which they were so entrusted." Premachandra v.Jayawickrema .
That applies to power# of appointment and dismissal, and reasonsare necessary: Bandara v. Premachandra (3>, and Tennakoon v. deSilva<4>. See also Jayawardene v. Wijeyetilleke.
"Respect for the Rule of Law requires the observance of minimumstandards of openness, fairness, and accountability, inadministration; and this means – in relation to appointments to,and removal from, offices involving powers, functions and dutieswhich are public in nature – that the process of making a decisionshould not be shrouded in secrecy, and that there should be noobscurity as to what the decision is and who is responsible formaking it.”
Premachandra, at 312 (supra)) . On theavailable material, the petitioner has been separated from the policereserve for no reason at all. There has been a flagrant violation of hisfundamental right to equality and, the equal protection of thelaw – a violation which, in the context of present security needs,seems difficult to reconcile with the national interest.
I therefore hold and declare that the petitioner’s fundamentalright under Article 12(1) has been infringed by the 1st respondent.
I direct his immediate reinstatement, without a breao.in service,and with full back wages from 12.5.96, and compensation andcosts in a sum of Rs. 75,000/- payable by the State. The1st respondent is directed to inform the Registrar of thisCourt, on or before 30.4.97, that thes>^ jireCtiqns have beencomplied with.- r
ANANDACOOMARASWAMY, J. – I agree.DR. GUNAWARDENA, J. -1 agree.
Relief granted
Reinstatement with back wagesand compensation ordered.