ARULSAMY vs. UPCOUNTRY PEOPLES FRONT AND OTHERS

049-SLLR-SLLR-2006-V-3-ARULSAMY-vs.-UPCOUNTRY-PEOPLES-FRONT-AND-OTHERS.pdf


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Sri Lanka Law Reports
(2006) 3 Sri L R.
ARULSAMY
VS.
UPCOUNTRY PEOPLES FRONT AND OTHERS
COURT OF APPEAL.
SRIPAVANJ.
RANJIT SILVA J.
SISIRA DE ABREW J.
CA 1102/2006 (SPL/Expulsion)
August 30,31,2006 September 4, 12, 19,2006.
Elected to Provincial Council as a nominee of a recognized party-Disciplinary action taken by party- Expelled- Challenged on the basis that
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Arulsamy vs.
Upcountry Peoples Front end Others
387
he was not a member of the Party- Necessary parties objection not takenin this statement of objections – Bias alleged- Provincial Councils ElectionAct, No. 2 of 1968- Section 2, 563 – fatal.
The petitioner was elected as a member of the Central ProvincialCouncil. The petitioner agreed to a proposal made by the 1st respondentparty to have the name entered in the nomination paper of its party, for thepurpose of contesting the said election. Thereafter, he was disciplinarydealt with by the 1 *' respondent party and expelled. The petitioner refusedto attend the inquiry, as it was his position that he is not a member of the1* respondent party.
A writ of Certiorari was sought to quash the said decision.
It was contended by the respondents that —
the Members of the Disciplinary Committee have not been madeparties to the application.
the members of the Central Committee of the 1st respondent
party have not been named.
there is no valid affidavit and the application should be dismissedin limine. …
HELD:
The expelling body was the Central Committee of the 1 •* respondentparty. The Disciplinary Committee has the power to make arecommendation to the Central Committee for suitable action.
The final decision with regard to a suitable action is taken by theCentral Committee.
The Central Committee is a body having legal authority to determinedisputed matters involving expulsion which affects rights andinterests of the petitioner.
The failure to make the members of the Central Committee asparties is fatal.
Per Sripavan, J.
“When mala tides are alleged against the purported expulsion, the
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members of a Central Committee who took the decision must necessarilybe made parties. It is not only mandatory but fairness too requires primafacie that the members of the Central Committee be made respondents,an opportunity be given to explain, controvert or mitigate the case againstthem and the right to making submissions*.
Per Sripavan, J
”1 hold that conduct of the respondents do not disentitle them fromtaking the objection relating to necessary parties even though it was notspecifically pleaded in the statement of objection”
APPLICATION for a Writ of Certiorari/Mandamus
Cases referred to:
Gamini Dissanayake vs. M.C.M. Kaleel and Others 1993 2 SriLR 135 at 179
Cooper vs. Wandsworth Board of Works 1863 14 CBNS 180
Mersey Docks and Harbour Board Trustees vs. Gibbs 1866 LR 1HL 93
Muthusamy Gnanasambanthan vs. Chairman, REPIA and Others1998 3 Sri LR 169
Schmidt vs. Secretary of State for Home Affairs 1969 2CL 149at 170
Wijedasa Rajapakshe PC with Kuwera de Zoysa , KapilaLiyanagamage, Nilantha Kumarage, Gamini Hettiarachchi for petitioner.
Romesh de Silva PC with K.S. Ratnavale, Maithree Wickremasinghe,Sugath Caldera and Eraj de Silva for 1-, 2nd and 3rd respondents …
Anusha Nawaratne DSG for 4-5 respondents
Cur. adv. vult.
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Arulsamy vs. Upcountry Peoples Front end Others
(Sripavan, J.)
389
September 27, 2006SRIPAVAN. J.
The petitioner was elected as a member of the Central ProvincialCouncil at the Provincial Councils Election held on 10.07.2004. ThePetitioner was thereafter appointed as a Minister of Industries, Sports,Womens Affairs, Estate Infrastructure, Hindu Cultural Affairs andEducation (Tamil) of the Central Provincial Council. The petitioneragreed to a proposal made by the 2nd respondent to have his nameentered in the nomination paper of the 1st Respondent party for theNuwara Eliya District for the purpose of contesting the said election.The petitioner was thereafter duly elected as a member of the CentralProvincial Council as a nominee of the 1st respondent which is arecognized political party as evidenced by the Gazette Notificationpublished by the 4th respondent marked P1.
The Petitioner alleges that he received a letter dated 20.09.2005marked P6 from the 3rd respondent requesting him to show causewithin 14 days on ceYtain charges levelled against him. On receipt ofthe said letter annexing the charges the Petitioner forwarded a letterdated 30.09.2005 marked P8 to the 3rd respondent stating specificallythat the question of disciplinary proceedings could not arise againsthim in terms of the party constitution since he was not a member ofthe 1 st respondent party. Therefore, the 3rd respondent by letter dated
marked P9 requested the petitioner to be present for aninquiry to be held on 21.12.2005. The proceedings dated 25.12.2005marked R3 shows that the petitioner at the inquiry took up the positionthat he was not a member of the 1 st respondent party and as such nocharges could be levelled against him. Again, by letter dated 27.02.2006marked P12 the petitioner informed the 3rd respondent that he wasnot a member of the 1 st respondent party; therefore the 3rd respondenthad no authority whatsoever to inquire into the alleged charges framedagainst the petitioner by letter dated 20.09.2005. The petitionerthereafter refused to participate at the inquiry fixed for 03.03.2006.However, on 16.06.2006 the petitioner received a letter dated 12.06.2006marked P13 informing that on the recommendation made by theDisciplinary Commission, the Central Committee has forfeited thepetitioner’s membership and expelled the petitioner from the 1strespondent party. The petitioner states that since he was not a memberof the 1 st respondent party, he has not ceased to be a member of the
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Central Provincial Council and his seat in the Council has not becomevacant by reason of the purported expulsion contained in the lettermarked P13. The letter dated 14.06.2006 marked P14 also states thatthe Central Committee of the 1st respondent party has directed the3rd respondent to inform the 5th respondent that the petitioner hadbeen expelled from the 1st respondent party.
At the hearing before us the learned President’s Counsel appearingfor the 1st, 2nd and 3rd Respondents took up the following threepreliminary objections:
That the members of the Disciplinary Commission have notbeen made parties to this application.
The members of the Central Committee who made the impugneddecision to expel the petitioner from the 1 st respondent partyhave not been made parties to this application; and
The petitioner has failed to file valid affidavits known to thelaw.
The petitioner in paragraph 27 of the petition challenges thepurported expulsion contained in P 13 and P 14 on the followinggrounds, inter-atia (I) The purported expulsion was in gross violation ofthe principles of natural justice (II) The purported expulsion was inviolation of the petitioner’s legitimate expectation to a fair hearing.(Ill) The purported expulsion was unreasonable or arbitrary. (IV) Thepurported expulsion was done mala fide. (V) The purported expulsionwas without any merit.
Thus, this Court is called upon to determine whether the expulsionof the petitioner from the membership of the recognized political partywas valid or not. This Court while exercising its jurisdiction in terms ofSection 63 of the Provincial Councils Election Act, No. 2 of 1988 shouldinquire whether the expelling body has acted (I) within its jurisdiction ;
followed the procedure laid down in the constitution of the party ;
acted in compliance with the principles of natural justice beforemaking the impugned decision to expel the petitioner; and (IV) whetherthe impugned expulsion was done with a bad intention (mala fide).
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Arulsamy vs. Upcountry Peoples Front and Others
(Sripavan, J.)
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The expelling body as reflected in documents marked P13 and P14was the Central Committee of the 1st respondent party. In terms ofclause 16:3 of the constitution of the 1“ respondent party, TheDisciplinary Commission after an inquiry into a complaint made againsta member has the power to make recommendation to the CentralCommittee for suitable action. The recommendation made by theDisciplinary Commission may or may not be accepted by the CentralCommittee. However, the final decision with regard to a suitable actionis taken by the Central Committee. Thus, the Central Committee is abody having legal authority to determine disputed matters involvingthe expulsion which affects rights and interests of the petitioner.Therefore a fundamental question arises as to whether this Court couldrevise the findings of the Central Committee without giving the membersof such committee a hearing.
"The two principles which, pre-eminently, are generallythought to be necessary to guarantee that the law, or any bodyof rules, is applied impartially and objectively = and hence justly= are that no man should be judged without a hearing and thatevery judge must be free from bias, or, as they are often cited inthe form oflatin tags, audi alteram partem andpemo iudex in resua. It is not possible to produce an exhaustive list of the rulesof natural justice in this formal sense, or of the requirements ofthe rules, because the rules of natural justice are means to anend and not an end in themselves. ” (Natural Justice by PaulJackson • page 6)
As Fernando J. observed in Gamini Dissanayake vs. M.
C. M. Kaleel and Others (1> at 179 “The most fundamental principleof natural justice is the audi alteram partem rule, which is anobvious principle of justice applicable in all judicial proceedings.Natural justice is not now considered to be part of somefundamental and immutable law, constituting a fetter on thelegislative power; today the courts presume, unless the contraryappears, that the legislature intended that powers conferred byit be exercised fairly for “although there are no positive words ina statute, requiring that the party shall be heard, yet the justiceof the common law will supply the omission of the legislature"
(Cooper vs. Wandsworth Board Of Works(2> Mersey Docks andHarbour Board Trustees vs. Gibb (3>) The duty to give a fairhearing is as much a cannon of good administration and good
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legal judicial procedure”.
In Muthusamy Gnanasambanthan vs. Chaiman REPIA andOtherst4>, the Supreme Court considered whether an authority whoseorder was assailed must be made a party and held that the failure tomake REPIA a party was a fatal irregularity that would lead to thedismissal of the application. In Schmidt vs. Secretary of State forHome Affairs(5) at 170 Lord Denning MR suggested that the ambit ofnatural justice extended not merely to protect rights but any legitimateexpectation of which it would not be fair to deprive (a person) withouthearing what he has to say.
This court also takes the view that when mala tides are allegedagainst the purported expulsion, the members of the Central Committeewho took the decision must necessarily be made parties to thisapplication. Since the preliminary objection raised by the learnedPresident’s Counsel is of a fundamental nature which strikes at theheart of the jurisdiction of this Court, I hold that the conduct of therespondents do not disentitle them from taking the objection relatingto “necessary parties” even though it was not specifically pleaded intheir statement of objections. In my view, it is not only mandatory butfairness too requires prima facie that the members of the CentralCommittee be made respondents, an opportunity be given to explain, controvert or mitigate the case against them and the right to makesubmissions.
For the reasons set out above, I hold that the failure to make themembers of the Central Committee as parties to this application isfatal and this application therefore fails. In view of the conclusionreached, the Court did not consider the other preliminary objectionraised by the learned counsel for the respondents that the petitionerhas failed to file valid affidavits known to the law.
RANJITH SILVA, J. — I agree.
SISIRA DE ABREW, J. — I agree.
Application dismissed.