JAYARATNE AND OTHERS
WADUGODAPITIYA, J., ANDANANDACOOMARASWAMY J.
S.C. APPLICATION NO. 645/95.
30 AUGUST, 1996.
Fundamental rights – Article 12(2) of the Constitution – Public Officers whoare entitled to exercise political rights – Right of such officer, elected as amember of a Local Authority to work at a place close to the Local Govern-ment Body – section. 3.7 of Chapter XXXII of the Establishments Code.
The Petitioner, a clerk working at the Hanwella Divisional Secretariat and amember of the Seethawaka Pradeshiya Sabha, representing the United Na-tional Party complained that she had been summarily transferred to theHomagama Divisional Secretariat by the 2nd Respondent, Chief Secretaryof the Western Provincial Council who is the Authority competent to transferher. The Hanwella Divisional Secretariat from which she was transferred outis situated within the territorial limits of the Seethawaka Pradeshiya Sabha.The Petitioner alleged that the said transfer was not the decision of the 2ndRespondent but was upon a direction of the 1st Respondent, Secretary,Ministry of Public Administration because of her political opinion, to restrainher from fully participating in her duties as a member of the PradeshiyaSabha.
The Petitioner was transferred contrary to the provisions of section 3.7 ofChapter XXXII of the Establishments Code on the ground of alleged mis-conduct namely, political partiality in the discharge of her official duties, shewas transferred without informing her of the allegation against her or in-quiry, because of the views held by the 1st and 2nd respondents as to herpolitical opinion and activities.
The Petitioner is entitled to a declaration that her right under Article12(2) has been infringed.
Case referred to:
1. Madurapperuma v. A. G. S.C. 90/79 S.C. Mins, of 5.2.80.
APPLICATION for relief for infringement of fundamental rights.
Buddhika Kurukularatne for Petitioner.
Ms. I.D. de Silva, S.C. for 1st and 5th Respondents.
Chandra Gamage with Francis Ekanayake for 2nd, 3rd and 4th Respond-ents.
Cur. adv. vult.
20th September, 1996.
The Petitioner, a clerk working at the Hanwella Divisional Secre-tariat, alleges that she was summarily transferred to the HomagamaDivisional Secretariat in violation of her fundamental right under Arti-cle 12(2). She was, since October 1992, a member of the SeethawakaPradeshiya Sabha representing the United National Party. TheHanwella Secretariat was within the territorial limits of that Sabha.
It is not in dispute that the power to transfer clerks, which is vestedin the Governor of the Western Province Provincial Council, had beenduly delegated by him to the Provincial Public Service Commission,which in turn duly sub- delegated that power to the 2nd Respondent,the Chief Secretary of the Provincial Council, in terms of section 32of the Provincial Councils Act, No. 42 of 1987.
The 3rd and 4th Respondents, the Deputy Secretary (Adminis-tration) and the Director (Administration), acting on behalf of the 2ndRespondent sent the Petitioner a letter dated 31.10.95, transferringher with immediate effect to Homagama. It disclosed no reason andit stated that travelling expenses and allowances would not be paid.Among the persons to whom that letter was copied was the 1 st Re-spondent, the Secretary, Ministry of Public Administration, referencebeing made to his fax message dated 30.10.95 (No. SPA/10).
The Petitioner alleged that the decision to transfer her was con-trary to section 3.7 of Chapter XXXII of the Establishments Code,and that the decision taken by the 2nd to 4th Respondents was nottheir own independent decision but was upon a direction by the 1stRespondent, who, she says, had no power in law to transfer her. Sheclaims that the transfer was effected because of her political opinion,in order to restrain her from fully participating in her duties as a mem-ber of the Pradeshiya Sabha.
The 1st Respondent admitted that he made a "request" for thePetitioner's transfer, but claimed that he did not "direct" it. He saidthat he did so:
"consequent to several complaints that I received pertaining to
[her] behaviourthat in the discharge of her official duties and
functions she blatantly favoured her political supporters and per-sons who shared her political ideologies whilst discriminatingagainst those who belonged to other political parties
My primary concern was the allegation that the partisan conductof the Petitioner was adversely affecting the rights of the generalpublic in their day to day dealings with the Petitioner." [emphasisadded]
He went on to say that he was compelled to request her transfer."Since [her conduct] adversely affected the neutralization of adminis-tration of the Divisional Secretary's Office". He added, however, thathe was unaware "whether the transfer was effected based solely on[his] request".
The 2nd Respondent stated that he directed the transfer uponreceiving the 1st Respondent's letter dated 30.10.95, which said :
" I have been informed that one Mrs. Olga Athukorale who hasbeen a clerk attached to Divisional Secretariat, Hanwella for overa period of 8 years, is also a Pradeshiya Sabha Member of theSeethawaka Pradeshiya Sabha, which comes within the juris-diction of the above Divisional Secretary's office.
In view of the fact that this would adversely affect the neutrali-zation of administration of the Divisional Secretary's office, Irequest you to kindly transfer her to an adjoining Divisional Sec-retary's office which falls outside the Pradeshiya Sabha sherepresents."
He sought to explain his conduct as follows :
"The Petitioner's transfer in this instance is not a normal transfer,nor is it a punishment transfer. The Petitioner had to be transferredbecause the Petitioner's official conduct was detrimental tothe smooth working and upkeep of discipline at the workplace
In the course of the Petitioner‘s work such as matters connectedwith Janasaviya grants, poor relief etc., the Petitioner is foundto have favoured her own political supporters while harassingand discriminating against others. In addition to several oralcomplaints I have received in this connection the followingare written complaints received regarding the Petitioner's offi-cial conduct:
Communication dated 17 May 1995 addressed by the Hon. Min-ister of Co-operatives Local Government and Provincial Councils
and Home Affairswherein the Hon. Minister points out that
Mr. Anura Ratnayake Member of the Provincial Council hasbrought to his notice that the Petitioner exercises undue influ-ence by political patronage of her party people in the dischargeof her duties connected with Janasaviya, relief for the poor andother welfare benefits.
Communication dated 30 October 1995 of the Secretary of Pub-lic Administration …. wherein the 1st Respondent evidentlyon having received complaints from people in responsiblepublic office has discovered that the Petitioner's dual role as amember of the Seethawaka Pradeshiya Sabha which comes withinthe Hanwella Divisional Secretariat limits would adversely affectthe neutral administration in the Divisional Secretariat.
It is respectfully submitted that in order to avoid a breakdown inneutral administration and maintenance of discipline in the HanwellaDivisional Secretariat I decided to transfer the petitioner to HomagamaDivisional Secretariat which is the next closest Secretariat in West-ern Province to the Petitioner's residence and which had no dealingswith the constituents of the Seethawaka Pradeshiya Sabha of whichthe Petitioner is a member.'' [emphasis added]
Citing the relevant provisions of the Establishments Code (inChapter XXXII dealing with "Exercise of Political Rights") –
"3.7 If an officer who is entitled to exercise his political rights iselected a member of a Local Government body he should be al-lowed the concession of serving in a station close to the office ofthe Local Authority to which he is elected, subject to the exigen-cies of service and disciplinary Requirements. He will not be sub-ject to the normal transfer rules as long as he continues to be amember of that Local Government Body"-
the 2nd Respondent asserted that an elected member of a localgovernment body is entitled to serve at a work place closest to thatbody as a concession, and that "the grant of the said concession is at[his] discretion".
Answering the averments in the Petitioner's affidavit, he added :
"In view of the Petitioner's aforesaid conduct it became necessaryfor the 1st Respondent to request me to transfer the Petitionerand I complied because I have a duty to do so in order to ensurenon-partisan impartial administration of the institution. I state thatthe said transfer was effected by me taking into consideration theseveral complaints I had received regarding the Petitioner'sofficial conduct.
the Petitioner's favouritism of her political supporters
and bias against others led to this situation. I state that the 1stRespondent and I as responsible officers could not continue toignore repeated representations that the Petitioner was misus-ing her position and using the Secretariat facilities to favour herconstituents while denying others their rights." [emphasis added]
It is unfortunate that the 1st Respondent, holding the high publicoffice of Secretary to the Ministry of Public Administration, made avery serious charge of blatant political favouritism against anotherofficer, also engaged in the service of the public, albeit in a muchhumbler capacity, without disclosing to her who had made the "sev-eral complaints" which he claimed to have received, or any particu-
lars whatever as to the allegations of political partiality. Although herefers to these "several complaints" in his affidavit in this Court (butwithout producing them), in his letter dated 30.10.95 to the 2nd Re-spondent, he made no mention whatever of such complaints; insteadin that letter he put forward a very different reason, namely the undis-puted fact that the Petitioner was a member of the SeethawakaPradeshiya Sabha, and that "this would adversely affect the neutrali-zation of administration of the Divisional Secretary's office". Thus hisonly official communication to the 2nd Respondent did not even sug-gest that any misconduct h«d taken place, or might have taken place,in the past, but seemed to be based entirely on the possibility ofsome future conflict of interest. Curiously, however, the 2nd Respond-ent would have this Court believe that on receipt of that letter heinferred that the 1st Respondent had evidently received complaints"from people in responsible public office". I cannot for a moment ac-cept that the 2nd Respondent was so skilled at reading between thelines as to be able to discern from the 1st Respondent's letter of30.10.95 that the latter had received complaints which he did notmention therein. The obvious inference is that there had been somecommunication other than that disclosed in the pleadings; and thatthe 1st Respondent had supplemented his letter of 30.10.95, by con-veying secret allegations of political bias. That points to the probabil-ity that although he purported to make what appeared to be a mere"request" in his letter, the 1st Respondent was much more closelyand directly involved in the decision to transfer – a transfer which wasvirtually an automatic response by the 2nd Respondent to that letter.As for the oral complaints which the 2nd Respondent says he re-ceived, he gave no particulars whatsoever, and did not explain why. Itis quite unsafe to act on such vague allegations.
I find the affidavits of the 1 st and 2nd Respondents in this re-spect to be totally unacceptable, and hold that the 1st and 2nd Re-spondents' assertions that they had received complaints about thePetitioner to be unproved, with the exception of the letter to which Iwill refer at once.
The 1st Respondent does not assert that one of the complaintshe received was that set out in the letter dated 17.5.95 from the Min-ister of Co-operatives, Local Government, Provincial Councils and
Home Affairs. It is the 2nd Respondent who seeks to rely on thatletter. However, it is significant that Mr. Morris Rajapakse, the ChiefMinister, of the Western Provincial Council to whom it was addressed,appears to have taken no action on it – certainly, the Respondents donot claim he did. That letter may be treated as evidence of the factthat a Member of the Provincial Council had made that complaint tothe Minister, but it is not evidence as to the truth of that complaint, inthe absence of an affidavit from the Member concerned – and it maywell be that the Member did not claim to have been personally awareof the alleged misconduct, but was only passing on a complaint madeby another. Had the Chief Minister decided promptly to investigatethe matter, and to transfer the Petitioner pending such an investiga-tion, different considerations might have arisen. But here, nothinghave been done for five months, it is unsatisfactory that the 2ndRespondent should have suddenly decided to act on that complaintwithout any attempt to obtain particulars of the misconduct and with-out any evidence of it; without any kind of inquiry; and summarily,without disclosing the reasons to the Petitioner. By acting in that way,he deprived the Petitioner of the protection which the relevant rulesand regulations provide. It must be noted that in his affidavit the 2ndRespondent did not confine himself to "allegations" based on the Min-ister's letter, but implied that the Petitioner was guilty of the miscon-duct alleged against her: that she was "found" to have favoured herpolitical supporters, while "harassing and discriminating againstothers", and that her official conduct "was detrimental" to efficiencyand discipline. If there is any truth at all in those assertions in hisaffidavit, it is he who has been seriously wanting in the discharge ofhis duties in failing to initiate disciplinary proceedings against her.The transfer cannot be justified by reference to that letter.
Learned Counsel for the 2nd to 4th Respondents submitted thatthe transfer was justifiable on a different basis: that it was to ensurenon-partisan, impartial, neutral and efficient administration in the Di-visional Secretariat, and that the Petitioner was transferred to thenext closest at Secretariat having regard to "the exigencies of serv-ice". In so far as that submission depends on any misconduct by thePetitioner, it fails because there is no evidence of misconduct. I must,however, consider whether that submission can be sustained apartfrom any such misconduct. Reference was made to section 3.7 of the
Establishments Code, quoted above, and also to a dictum inMadurapperuma v. A.G.,(1) that the Cabinet of Ministers has the com-petence to regulate or control the exercise of the fundamental rightsof public service and that the State has the power to insure that pub-lic officers in the interests of the public officers who lack the qualitiesof efficiency, honesty, impartiality and discipline are not retained inservice. That dictum has no relevance here because there is no evi-dence that the Petitioner lacks any of those qualities.
Section 3.7 does not authorise or require the transfer of an of-ficer from a station within tFie area of authority of the Local Govern-ment Body of which he is an elected member to a station outside -not even to one close to the office of that Body. It deals, rather, withthe converse case: where such an officer is serving outside the areaof authority, or in a station not close to the office, of that Body, heshould be allowed the concession of being brought to a station closeto that office. Chapter XXXII of the Establishments Code seeks togive practical effect to the political rights of public officers elected torepresentative office; it recognizes the difficulties which public offic-ers may face in fulfilling their dual responsibilities, to their employerand to the Body to which they have been elected. Section 3.7 givesthem the right to work at a place as close as possible to the office ofthat Body, thus facilitating the discharge of their duties. What the 2ndRespondent did was the converse of what section 3.7 intended. Itherefore hold that section 3.7 did not authorise the transfer of thePetitioner from the Hanwella Divisional Secretariat to a place of workoutside the area of authority of the Pradeshiya Sabha of which she wasa member.
It is clear from their affidavits that the 1st and 2nd Respondentscaused the Petitioner's transfer because of their views as to the Peti-tioner's political opinion and activities.
In this connection I must mention that when judgment was re-served Counsel desired to have an opportunity of exploring the pos-sibility of a settlement. Counsel were unable to effect a settlement,but Counsel for the 2nd to 4th Respondents then brought to our no-tice Public Administration Circular No 24/96 dated 12.8.96, which in-troduced a new section 3.7:
"If an officer who is entitled to exercise his/her political rights hasbeen elected as a member of a Local Government Body and if he/sheis serving in an office within the area of such Local Authority, he/sheshould immediately be transferred to a not too distant station outsidethat area of Local Authority of which he/she is elected as a member.Under normal circumstances he/she should not be subjected to thenormal transfer rules as long as he/she continues to be a member ofsuch a Local Government Body.”
Such a provision would prima facie have sanctioned the transferof the Petitioner, but I express no view as to its validity or effect pro-spectively. However, this amendment does not purport to have retro-spective effect, and as far as the Petitioner's claim is concerned, ithas no relevance.
The Petitioner is entitled to a declaration that her fundamentalright under Article 12(2) has been infringed by the 1st and 2nd Re-spondents because of political opinion. Her transfer is cancelled, andthe Respondents are directed to reinstate her at Hanwella forthwith.There is no reason why the State or the Provincial Council (whichhas not been made a party) should be directed to compensate thePetitioner. The 1st and 2nd Respondents have acted arbitrarily, inflagrant disregard of the Petitioner's rights, and it is they who areprimarily responsible for this litigation. The infringement is the moreserious because it affects the system of representative local govern-ment. I therefore consider it equitable to direct each of them to paythe Petitioner a sum of Rs 25,000/- as compensation and costs.
WADUGODAPITIYA, J. – I agree.
ANANDACOOMARASWAMY, J. – I agree.