022-SLLR-SLLR-2006-V-3-DHARMASENA-vs.-SHANKER-AND-OTHERS.pdf
CA
Dharmasena vs.
Shankar and Others
169
DHARMASENAVSSHANKER AND OTHERSCOURT OF APPEAL.SRISKANDARAJAH, J.CA 2252/2004.MARCH 22, 2006.
Writ of Certiorari – Police Ordinance – Decision to terminate the services -illegal, arbitrary not in conformity with Circulars?-Ultra vires-Reasonableness of the order?
The petltoner – a Reserve Inspector of Police-was charge sheeted andafter inquiry was found guilty of the charges leveled against him and wassuspended for the reason that he has committed a serious breach ofdiscipline In terms of Police Department Orders. Thereafter his serviceswere terminated as the 1st respondent had not recommended thereinstatement of the petitoner. The petitioner sought to quash the saiddecision terminating his services. The contention of the respondents wasthat the petitioner was suspended only on four occasions and in terms ofthe Circular reservists who are suspended over four times cannot beconsidered for reinstatement -Circular P32.
HELD:
The petitioner’s reinstatement was refused for the reasonthat the 1st respondent- Deputy Inspector General of Police(Uva Range) has not recommended for reinstatement as thepetitioner was suspended on a number of occasions. Theletter does not specify on how many occasions he was.suspended.
The documentary evidence shows that the petitioner wassuspended on disciplinary grounds only on 2 occasions.
The petitioner was not suspended more than four occasions,therefore, the letter of refusal to reinstate is ultra vires- CircularP 32.
In any event, the reason given for not reinstating the petitionercannot be reasonable as it does not refer to the number of
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occasions the petitioner was suspended and whether thosesuspensions are on disciplinary grounds or not.
APPLICATION for Writ of Certiorari.
Rienzie Arasakularatne PC with Wasantha Batugoda and NilanthiFernando for petitoner. Farzana Jameel SSC for Attorney General
Cur. adv. vult.
May 29, 2006.
SRIKANDARAJAH, J.
The Petitioner joined the Sri Lanka Police Reserve Force as aReserve Sub Inspector of Police on 07.01.1979 and on 01.11.1987 hewas elevated to the rank of Reserve Inspector of Police. On 01.04.2003the Petitioner was transferred to the Hambegamuwa Police post. ThePetitioner submitted that on 06.11.2003 he received a message thathis son was seriously ill hence he left the police station at about 4p.m. on the same day after handing over the police station to the nextsenior officer. His leave application pertaining to the period from
to 09.11.2003 was handed over on 10.11.2003 and the saidleave application was recommended by the 4th Respondent andapproved by the 3rd Respondent. The 1 st Respondent contended thatthe Petitioner had left the said Police station without complying withthe standing orders of S. S. P. Monaragala Division dated 15.05.2003and as stated by the Petitioner, he did not give charge or hand over thesaid Police Post to any officer. He had only made a routine out entrydated 06.11.2003 at 1600 hrs. The leave application of the Petitionerfor the afore said period was only purportedly approved by the 3rdrespondent on 31.12.2003 and the leave could be approved during" noleave period” only by the D. I. G. of the Range. An inquiry against thePetitioner was conducted on the above matter by Inspector of PoliceM. K. D. Silva the 7th Respondent on the direction of the 1stRespondent. The inquiry was conducted in conformity with the
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Dharmasena vs.
Shankar and Others (Sriskandarajah. J.)
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provisions laid down in IG’s Circular No.1590/2004 of August 2001 (P28).After the inquiry the Petitioner was found guilty on ten (10) chargesand he was suspended by a telephone message dated 27.02.2004(P17) and by letter (P18) of the same date for the reason that he hascommitted a serious breach of discipline in terms of Police DepartmentOrders A7.
The Petitioner contends that the said decision of the 1st Respondentto suspend him from service is illegal and/or arbitrary and/orunreasonable for the following reasons: that the 7th. Respondent is notwell disposed towards the 2nd Respondent who granted permission tothe Petitioner to leave the station as such the inquiry conducted wasbiased, the inquiry conducted by an officer holding the same rank asthat of the Petitioner and not by a person holding a higher rank, thesuspension of the Petitioner has not been properly approved by the5th Respondent as required by Reserve Police Headquarters CircularNo. 18/1997 but it was approved by the 6th Respondent and thesuspension order could have been made by the 2nd Respondent andnot the 1st Respondent according to IGP’s circular No.1044/92 of30.12.1999 and 1590/2002 of August 2001.
The Petitioner submitted that the inquirer is biased but the petitionerhad not raised this objection before the inquirer; without raising thisobjection before the inquirer the Petitioner cannot raise this objectionin this court for the first time. The petitioner challenged the findings ofthe inquirer as the inquiry was conducted by an officer of the samerank and not by a higher officer. The inquiry should have beenconducted by an officer of a higher rank as stipulated by Part II ofDepartment order A7 and his suspension has not been properlyapproved by the 5th Respondent as required by Reserve Police HeadQuarters Circular No 18 of 1997. The Respondents contend that onlycomplaints made against a Police officer by the members of publichave to be inquired into by a senior Gazetted Officer who is not belowthe rank of Assistant Superintendant of police. The 7th Respondent isa regular Police Officer senior in rank and service to the Petitioner andthe 1 st Respondent as the disciplinary authority is empowered to assignan officer to hold a preliminary inquiry in respect of lapses committed
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by the rank of R/IP. The Petitioner also submitted that in terms of IGPcircular No. 1044/92 dated 30.12.1999 and IGP’s Circular No.1590/2001 of August 2001 it is the 2nd Respondent above named and notthe 1st Respondent who can suspend the Petitioner. The Respondentcontend that the 1 st Respondents being a Deputy Inspector of Police(the disciplinary authority) he is superior in rank to the 2nd Respondentand the power of delegation are set out in circular No.1044(1) dated30th December 1992(P31).
Even though the Petitioner has challenged the said inquiry on severalgrounds the Petitioner has not established that there is illegality orprocedural irregularity in the holding of the inquiry. Therefore this courtwill not interfere in the findings of the inquirer.
The Petitioner further submitted that he received a letter from the6th Respondent dated 24.08.2004, terminating the services of thePetitioner, as the 1st Respondent has not recommended thereinstatement of the Petitioner (P23). The Petitioner submitted thatthe decision of the 6th Respondent to terminate the services of thePetitioner is illegal and/or arbitrary and/or capricious and/orunreasonable for the reason that it is not in conformity with IGP’scircular No. RP 1282/2003 of 29.12.2003 as only Reservists who aresuspended over four times will not be considered for re instatement(P32).
The said document marked P32 in paragraph 4.5 provides as follows:
‘Reservists who are suspended over 4 times will not beconsidered for reinstatement. Deputy Commandant/SLPRshould forward Personal Files of such officers with hisrecommendation in order to demobilize the officersconcerned.'
The Respondents have neither denied this document nor submittedany other document or circular that deals with the correlationbetween the number of suspensions and the re-instatement. According
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Dharmasena vs.
Shankar and Others (Sriskandarajah. J.)
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to the above document only in cases where the number of suspensionsexceed four the reinstatement is not considered.
The Petitioners reinstatement was refused by the letter P23 dated
for the reason that the Deputy Inspector General of PoliceUva Range has not recommended for reinstatement as the Petitionerwas suspended on number of occasions. This letter does not specifyhow many occasions he was suspended. But the 1st Repondent inhis affidavit filed in this case stated that the Petitioner had beensuspended on four occasions during his tenure of service in the SriLanka Police Reserve (SLPR). The letters of suspensions are markedas IR2 (A), 1R2P (B), 1 R2(C) and IR2(D). Out of these documents thedocuments marked 1 R2(B).t and 1 R(C) are in relation to suspensionon account of approved overseas leave and reinstatement. The onlydocuments that relates to suspension on disciplinary grounds are IR2(A) and 1 R2(D). In any event the Petitioner was not suspended morethan four occasions therefore if the aforesaid document marked P32 isin force the letter of refusal to reinstate is ultra vires the said document.
Even if the said document is not in force the reason given for notreinstating the Petitioner cannot be considered as reasonable as itdoes not refer to the number of occasions the Petitioner was suspendedand whether those suspensions are on disciplinary grounds or not. Ifthe Petitioner was not recommended for reinstatement taking intoconsideration the number of suspensions then it is unreasonable toconsider suspensions that are brought about due to approved overseasleave. For these reasons this court issues a writ of certiorari to quashthe decision contained in document dated 24.08.2004 marked P23.Therefore the court allows the application in relation to prayer (f) of thePetition without cost.
Application partly allowed.