FALEEL V. SUSIL MOONESINGHE AND OTHERS

032-SLLR-SLLR-1994-V2-FALEEL-V.-SUSIL-MOONESINGHE-AND-OTHERS.pdf


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Faleel v. Susil Moonesinghe and Others
301
FALEEL
v.
SUSIL MOONESINGHE AND OTHERS
COURT OF APPEAL.
W. N. D. PERERA, J. ANDA. ISMAIL, J.
C.A. APPLICATION NO. 706/92.
NOVEMBER 12.13, 16 AND 18,1992.
Certiorari and Prohibition – Suspension from Chairmanship of Urban Council -Section 2 (3) (a) (1) of the Powers of Supervision of the Administration of LocalAuthorities Statute No. 4 of 1991 read with s. 19(3) of the Urban CouncilsOrdinance – Mala fides – Collateral and improper purpose – Suspension as aholding.operation – Application of rules of natural justice.
Where the petitioner who was the Chairman of the Urban Council of Beruwela wassuspended from the Chairmanship pending inquiry by a retired judicial officerafter an investigation and he alleged victimization at the instigation of his politicalrivals .who however were not parties to the proceedings and moved for aquashing of the order of suspension.
Held::
The suspension was by the Chief Minister (1st respondent) after aninvestigation into matters of administration of the Urban Council of which thepetitioner was the Chief Executive Officer and on the failure to attend to the saidmatters of administration and performance of duties despite a reminder. Thesuspension cannot then be said to be unreasonable or for an improper orcollateral purpose of political victimization at the instigation of political rivals or forextraneous reasons.
'Mala fides in a narrow sense would include those cases where the motiveforce behind administrative action is personal animosity, spite, vengeance,personal benefit to the authority itself or its friends. The plea of mala fides has tobe .'substantiated to the satisfaction of the Court. Merely raising a doubt is notenough. There must be something specific, direct and precise to sustain the pleaof mala fides. The burden of establishing mala fides is very heavy on the personwHo alleges it and the very seriousness of the allegation of mala fides demandsproof to a very high degree of credibility. Where there is nothing discernible toindicate that it was instigated by political rivals owing to political or personalhostility the suspension does not become invalid.
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The non-allocation of funds where no development of the urban area has beensubmitted is justified and not relevant for the purpose of deciding on whether thesuspension is justified.
Suspension in essence is merely expulsion pro tanto. Each is penal and deprivesthe member concerned of his rights of membership or office. Here the rules ofnatural justice prima facie apply to the process of suspension in the same way asthey apply to expulsion. But these principles do not apply to suspension as aholding operation pending inquiries which is merely done by way of goodadministration.
On receipt of complaints of maladministration the 1st respondent had directed theCommissioner to initiate inquiries and such investigations were held by a seniorinvestigating officer. The petitioner was not justified in alleging that no inquiry washeld.
In most types of investigation there is in the early stages a point at which action ofsome sort must be taken and must be taken firmly in order to set the wheels ofinvestigation in motion. Natural justice will seldom if ever at that stage demandthat the investigator should act judicially in the sense of having to hear both sides.But the further the proceedings go and the nearer they get to the imposition of apenal sanction or to damaging someone's reputation or to inflicting financial losson someone, the more necessary it becomes to act judicially, and the greater theimportance of observing the maxim, audi alteram partem. The rules of naturaljustice do not apply to suspensions which are made, as a holding operation,pending inquiries.
Where suspension was a holding operation pending a proposed inquiry andreport and done in the interests of good administration and not as an infliction ofpunishment; neither prior notice of the suspension nor a hearing prior tosuspension was necessary.
The rules of natural justice do not apply to suspensions which are made, as aholding operation pending inquiries.
The Powers of Supervision of the Administration of the Local Authorities StatuteNo. 4 of 1991 which supersedes section 184 of the Urban Councils Ordinancedoes not provide for prior notice or prior hearing before suspension. Section 2(3)(a) of the Statute No. 4 of 1991 specifically provides that the Minister may. beforeappointing a retired judicial officer make an order of suspension without a hearingor other formality. Under the scheme of the provisions of Statute No. 4 of 1991suspension as a holding operation is not confined or restricted to a situationwhere there is a crisis or an emergency. The words 'holding operation' in thecontext of the provisions in section 2(3) of the Statute No. 4 of 1991 contemplatesuspension as a temporary or interim measure, in the interests of goodadministration, pending the inquiry and report of the retired judicial officer.
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Caws referred to:
United Kingdom Association of Professional Engineers and Another v,Advisory Conciliation and Arbitration Services (UKAPE v. ACAS) [1980] 1 AllER 612,620.
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1KB 223.
Lewis v. Heffer[ 1978] 3 All ER 354,
John v. Rees [1969] 2 All ER 274,305.
Burn v. National Amalgamated Labourers Union of Great Britain and Ireland(1920) 2 Ch. 364.
Fumell v. Whangarei High Schools Board [1973] 1 All ER 400.
DeSaram v. Panditharatne (1984) 2 Sri LR106,119.
APPLICATION for writs of certiorari and prohibition on Chief Minister.
H. L. de Silva P.C. with S. Mahenthirantot petitioner
K. N. Choksy P.C., L.C. Seneviratne P.C. and Ronald Perera for 1st respondent.Manohara de Silva for 2nd and 3rd respondents.
Cur. adv. vult.
December 16,1992.
ISMAIL, J.
i
The 1st respondent in his capacity as the Minister of the Board ofMinisters of the Provincial Council, Western Province, by his letterdated 9th September 1992, (P5), suspended the petitioner from theoffice of Chairman, the Chief Executive Officer of the Urban Council,Beruwela, with immediate effect, under the powers vested in himunder section 2(3) (a) (1) of the Powers of Supervision of theAdministration of Local Authorities Statute, No. 4 of 1991, of theWestern Province Provincial Council, read with section 19(3) of theUrban Councils Ordinance (cap. 255). He further directed the 3rdrespondent, the Vice Chairman of the Urban Council to exercise thepowers and perform the duties of the Chief Executive Officer of theCouncil.
The petitioner by his application dated 22nd September 1992, withdocuments annexed to it marked P1 to PS, sought Writs of Certiorariand Prohibition to quash the said order (P5), and to quash theappointment of the 3rd respondent to exercise and perform theduties of the Chief Executive of the said Council.
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The 1st respondent filed an affidavit dated 25th September '92,annexing to it documents marked X1 to X6, for the purpose ofobjecting to the grant of an interim order staying the operation of thesaid order of suspension made by him. A counter affidavit with furtherdocuments marked P7 to P13 was then filed by the petitioner on 2ndOctober '92, Yet another affidavit of the petitioner filed in reply dated13th October '92 had annexed to it documents marked P14 to P19.The subsequent affidavits of the 1st respondent filed were dated
and 22.10.92 with documents annexed to each of themmarked X1a and X2a, and X7 to X21 respectively.
The petitioner averred that he has been engaged in politics for aconsiderable period and that at the General Elections held in 1977 heactively supported the United National Party, and particularlyMr. Bakeer Markar, who was duly elected as the first Member ofParliament for the Beruwela constituency. At the 1979 elections tolocal bodies he sought nomination from the United National Party torun for the office of Chairman of the Beruwela Urban Council and inthis connection he sought the assistance of Mr. Bakeer Markar.However, the United National Party solely at the instance ofMr. Bakeer Markar nominated his cousin and brother-in-lawMr. Razick Marikkar who was subsequently elected as the Chairmanof the said Council at the 1979 local government elections.
The petitioner however did not contest the local governmentelections in 1979. He contested the local government elections heldin 1983 leading an independent group which secured victory with theelection of four members of its group, while the United National Partyand the Sri Lanka Freedom Party had secured two seats each. Hewas elected as the Chairman of the Urban Council, Beruwela, at thiselection in 1983.
The petitioner has alleged that since his election to the office ofChairman in 1983. defeating the United National Party group formedand backed by Mr. Bakeer Markar, that Mr. Bakeer Marker who hadbecome ill disposed towards him both politically and personally usedhis powers to obstruct the functions and the administration of theUrban Council. He alleged that Mr. Bakeer Markar cancelled an
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allocation Rs. 350,000/- to the Council for development work from theannual government budget allocated electorate-wise, immediatelyafter he was elected Chairman; and that even subsequently from1984 to 1986, Mr. Bakeer Marker had not allocated any monies to theCouncil. A further allegation is that Mr. Baker Markar protested to theUrban Development Authority and endeavoured to prevent theconstruction of a new office building in 1985 after the office buildingof the Council was destroyed by fire which he believed to be an actof sabotage.
The petitioner was suspended from the office of the Chairman ofthe Urban Council on 10th September 1987 by the then Minister ofLocal Government and Construction in terms of section 184 of theUrban Councils Ordinance. An application No. 974/87 filed by thepetitioner challenging the said order of suspension was rejected bythe Court of Appeal. He then obtained special leave to appeal andthe Supreme Court by its judgment dated 8th February 1988, allowedhis application for interim relief staying the order of suspension anddirected the Court of Appeal to issue notice on the respondents.
The list respondent to the present application was not the ChiefMinister at the time relevant to the suspension of the petitioner fromthe office of Chairman in 1987 and the subsequent proceedingschalieriging the order of suspension. He averred that he is personallyunaware of the allegations made against Mr. Bakeer Markar and thatpersonal and political animosity between them had absolutely nobearing on his decision to issue the present order of suspension on9th September ’92 (P5). Mr. Bakeer Markar was not a respondent tothe application to quash the order of suspension in the earlierapplication referred to above nor is he a party to the presentapplication.
The petitioner claims to have actively campaigned for the SriLanka Freedom Party candidate Mrs. Bandaranaike at thePresidential Elections held in 1988, and for the Sri Lanka FreedomParty 'at the General Elections held in 1989 especially in the Beruwelaarea.! Mr. Imtiyas Bakeer Markar was the candidate of the UnitedNational Party at the General Elections in 1989 for the Kalutaradistrict and the party organizer for the Beruwela area.
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The petitioner was re-elected as the Chairman of the BeruwalaUrban Council at the elections to the Council held in May 1991, afterthe independent group led by him secured five seats, while theUnited National Party obtained three seats and the Sri LankaFreedom Party obtained one seat. He was thereafter appointed asthe Sri Lanka Freedom Party organizer for the Beruwela electorate inJune 1991 by its President and he now commands the support of sixmembers of the Council as opposed to the three members of theUnited National Party.
The petitioner has referred to an incident in 1989 soon after theGeneral Elections when his brother-in-law was shot dead byassailants who were said to have been body-guards of Mr. ImtiyasBakeer Markar and for which offence no person has yet beencharged’ He has also alleged that a motor car belonging to his sonwas damaged by the supporters of Mr. Imtiyas Bakeer Markar soonafter the results of the election to the Council were released in May'91. The petitioner has further stated that the day after the elections tothe Urban Council were held in May 1991 he was arrested anddetained overnight at the Beruwala police station. He believes thatthis arrest was made at the instigation of Mr. Imtiyas Bakeer Markar tovictimize and humiliate him. However, Mr. Imtiyas Bakeer Markaragainst whom these allegations are made is not a respondent to thisapplication and it is the contention of the 1st respondent that theseaverments which he is not aware of, and which have not beensubstantiated are irrelevant to these proceedings and had no bearingon his decision to make the order of suspension (P5).
The petitioner has further averred that sometime after he assumedoffice as Chairman of the Council in May 1991, the Ceylon ElectricityBoard cut off the electricity supply to the Council area on the groundof arrears of payments. He believes that this was done at theinstigation or Mr. Imtiyas Bakeer Markar. He had protested to theBoard that these arrears were outstanding from the early 1980's butthe Board did not restore the supply. In this connection in an actionwhich is yet pending in the District Court of Colombo and which hecaused to be filed in the name of the Council, the Court grantedinterim relief directing that the supply of electricity be restored. The1st respondent has pointed out that the arrears of payment due to the
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Electricity Board from the Urban Council as at 31st August 1991 wasRs. 4,340,696/46.
Thus the petitioner has made allegations of malice on the part ofMr. Bakeer Markar in the post Urban Council election period of 1983,and on the part of Mr. Imtiyas Bakeer Markar, his supporters andbody-guards in the period after the General Elections in 1989 and theUrban Council elections in May 1991. It was the contention of learnedPresident1 s Counsel for the petitioner that with this history of politicalrivalry the 1st respondent has jointly with them sought to advance theinterests of the United National Party by maliciously making theimpugned order of suspension. However, no allegation of malice hasbeen made directly against the 1st respondent and there is nomaterial to link the order of suspension made by him with theallegations of mala fides on the part of Mr. Bakeer Markar andMr. Imtiyas Bakeer Markar stemming from the alleged political andpersonal animosity over a period of several years since 1979. Malafides in a narrow sense would include those cases where the motiveforce . behind an administrative action is personal animosity, spite,vengeance, personal benefit to the authority itself or its friends, butthe plea of mala fides has to be substantiated to the satisfaction of aCourt. Merely raising a doubt is not enough. There must besomething specific, direct and precise to sustain the plea of malafides: The burden of establishing mala fides is very heavy on theperson who alleges it and the very seripusness of the allegation ofmala, fides demands proof to a very high degree of credibility. I am ofthe view that the allegations of malice on the part either of Mr. BakeerMarkar or Mr. Imtiyas Bakeer Markar have not been established andthat there is nothing discernible in the order of suspension made bythe 1st respondent to indicate that it was instigated by either of themthrough political or personal hostility towards the petitioner. The orderof suspension is therefore not invalid on this ground.
The petitioner has further stated that neither the CentralAdministration nor the Western Provincial Council has released anyfunds to the said Council except for a sum of approximatelyRs. ,150,000/- for work in connection with Mobile PresidentialSecretariat since he re-assumed office as Chairman in May 1991. The
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1st respondent has replied that allocations of funds in the WesternProvince local bodies are made by him as Chief Minister and asMinister of Local Government in the Western Province. The procedureadopted prior to the allocation of funds is for the local body to submita development plan for the year, which is then discussed at ameeting attended by the representatives of the local bodies,Members of the Provincial Councils and Members of Parliament ofthe District where such local bodies are situated. The allocations offunds are thus determined according to the needs of the local bodyhaving regard to its development programme. The Urban Council,Beruwela had not submitted a development plan as required nor hadits representatives participated at such discussions and hence it wasnot possible for allocation of funds to be made to the Beruwela UrbanCouncil. The non-allocation of funds in the circumstances appears tobe justified and in any event is not relevant for the present purposes.
The order of suspension is sought to be challenged on the groundthat it has been made arbitrarily and capriciously for extraneousreasons and for an ulterior purpose and without any evidencewhatsoever to warrant a reasonable belief or suspicion that thepetitioner has committed or is guilty of any of the acts set out insection 2(1) (a) to (e) of the Statute No. 4 of 1991 or section 184(1)(a) to (e) of the Urban Councils Ordinance. “The expression arbitraryand capricious is sometimes used as a synonym for unreasonable,and in one case this has been transmuted into frivolous andvexatious and capricious and vexatious. But the meaning of all suchexpressions is necessarily the same, since the true question mustalways be whether the statutory power has been exceeded.” – Wade- Administrative Law, 5th ed. page 365.
Learned Counsel for the 1st respondent has pointed out thatsection 184 of the Urban Councils Ordinance has no application inview of the provisions of Article 154(G) (B) of the Constitution and itremains suspended and is inoperative, as Statute No. 4 of 1991 hasdescribed it as being inconsistent with the provisions of section 184of the Urban Councils Ordinance. Thus the provisions, which prevailare those contained in Statute No. 4 of 1991.
Faleel v. Susii Moonesinghe and Others (Ismail, J.)
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■ Section 2 of the powers of Supervision of the Administration ofLocal Authorities Statute, No. 4 of 1991, provides as follows:-
“2. (1) If at any time the Minister of the Board of Ministers of theProvincial Council of the Western Province to whom the subject ofLocal Government has been assigned is satisfied that there issufficient proof of –
incompetence and mismanagement; or
persistent default in performance of the duties imposed by therelevant law, statute or any other written law; or
persistent refusal or neglect to comply with any provisions oflaw or statute; or
abuse of the powers conferred by the relevant law, statute orany other written law; or
persistent refusal to hold or attend meetings or to vote or totransact business at any meeting to be held,
on the part of any Local Authority, or any of the members of anylocal Authority, or on the part of the Chief Executive Officer of anyLocal Authority, the Minister may as the circumstances of eachcase may require by Order Published in the Gazette:-
remove the Chief Executive Officer of such Authority; or
remove all or any of the members of such Authority from office;or
,(iii) dissolve such Local Authority;”
If a statute confers power for one purpose, its use for a differentpurpose will not be regarded as a valid exercise of the power andmay be quashed. Thus improper purpose has become an importantground to control the exercise of administrative powers and thus tocontrol administrative action. To determine improper purpose in a
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particular case, it is necessary to go into the motives or the realreasons for which the administrative action has been taken. What isrelevant is to assess whether the purpose in view is one sanctionedby the statute which confers power on the authority concerned.Similarly a discretionary power must be exercised on relevant and noton irrelevant or extraneous considerations. It means that the powermust be exercised taking into account the considerations mentionedin the statute. If the authority concerned pays attention to or takesinto account wholly irrelevant or extraneous circumstances, events ormatters then the administrative action is ultra vires and will bequashed.
The petitioner has not established bad faith directly on the part ofthe 1st respondent but takes up the position that the order ofsuspension has been made mala fide for a collateral purpose as astep in a scheme to unlawfully oust the petitioner from office in orderto victimize the petitioner for being opposed to the United NationalParty and to advance the interests of the party. The 1st respondenthas explained the reason for the non-allocation of funds to thisCouncil. He has caused investigation into several matters on whichpetitions had been addressed to him. The matters inquired into bythe Senior Investigating Officer are matters directly concerning theadministration and management of the Council and performance ofits duties under the Urban Councils Ordinance, while the petitioner asthe Chairman is the Chief Executive Officer of the Council, required todischarge ail executive acts and responsibilities. Besides, there isnothing to show that the matters referred to in X1/P8 which aredirectly concerning the administration and performance of the dutiesof the Council have been attended to since its communication to thepetitioner in December 1991. A reminder appears to have been sentby X7 dated 10.8.82 and no report regarding this has yet been sent.In these circumstances it cannot be said that the 1st respondent hasbeen acting for an improper purpose taking into account irrelevantconsiderations or that the order of suspension was made for acollateral purpose. He did not unreasonably become satisfied thatthere was sufficient proof of the matters referred to in section 2(1) (a)to (e) of statute No. 4 of 1991.
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The 1st respondent has acted in conformity with the provisions ofStatute No. 4 of 1991 which stipulates the powers of supervision ofthe administration of Local Authorities. In my view it does not appearthat he has used the powers vested in him in the Statute for animproper purpose or for extraneous reasons or unreasonably. Thepetitioners application therefore fails on this ground.
Besides the Courts will not substitute their judgment for that of theMinister on matters which the statute has provided are for hisdecision. Lord Scarman held in UKAPE v. AC AS'":
“But the Courts will not substitute their judgment for that of thestatutory body on matters which the statute has provided are for itsdecision. The extent to which the courts are able to interfere withthe judgment or discretion of such a body was laid down in theclassic judgment delivered by Lord Greene MR in AssociatedProvincial Picture Houses Ltd v. Wednesbury Corporation,z>. In thecourse of it Lord Greens MR observed:
'… a person entrusted with a discretion must direct himselfproperly in law. He must call his own attention to the matters whichhe is bound to consider. He must exclude from his considerationsmatters which are irrelevant… Similarly, you may have somethingso absurd that no sensible person could ever dream that it laywithin the powers of the authority.'
i
The language of the judgment is very different from the language ofindustrial relations: but the principle is clear and applicable. Thecourts will not tell a statutory body how it is to conduct its business orwhat decision, report or recommendation it is to make. They willinvalidate the exercise of a statutory body's judgment or discretiononly if satisfied that no reasonable person charged with the body’sresponsibilities under the statute could have exercised its power inthe way that it did."
The petitioner has taken up the position that prior to the making ofthe order of suspension, the 1st respondent did not inquire from the
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petitioner or cause an inquiry to be made from the petitionerpertaining to any of the allegations relating to the matters set out insection 2(1) (a) to (e) of the statute; and that to his knowledge noground or reason exists which warrants an order of suspension. The1st respondent has denied this averment and has stated that it isfalse and a suppression of the true facts and of the documents withinthe knowledge of the petitioner. He has set out the sequence ofevents which led to his making the order of suspension as follows:The Commissioner of Local Government and the 1st respondent hadreceived several petitions from the residents since 1991 when thepetitioner assumed the office of Chairman complaining against actsof maladministration and mismanagement on the part of the UrbanCouncil, and its officers including the petitioner. The Commissionerand the Assistant Commissioner of Local Government had initiatedmore than one investigation into these complaints and reports havebeen made on these investigations. On 20.12.91 the AssistantCommissioner of Local Government had communicated with thepetitioner (X1) as Chairman of the Council setting out the several actsof maladministration and wrongful acts revealed in the course ofinvestigation, and requesting that it be submitted to the Council andcalling for a report within one month in regard to the steps taken torectify the several matters referred to therein. On receipt of furthercomplaints of maladministration the 1st respondent directed theCommissioner of Local Government to initiate further inquiries and hecaused such investigations to be made by a Senior InvestigatingOfficer who submitted a report in this regard dated 3.8.1992 (X2).
The petitioner at first took up the position that he did not receivethe document marked X1 as he was abroad during the relevantperiod between 12.12.91 and 27.12.91 but admitted that thedocument marked P8 had been received in his absence by thesecretary of the Council. It is apparent that the document X1 is atyped copy of P8 which is identical in its content. Although thepetitioner stated that the secretary was directed to send a suitablereply to it at a meeting of the Council held on 30.12.91 it is theposition of the 1st respondent that the petitioner as Chairman and theChief Executive Officer of the Urban Council to whom the document
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X1/P8 was addressed has made no attempt to reply it or have anyreply sent out thereto indicating whether remedial measures hadbeen taken. It also appears inat the Commissioner of LocalGovernment had by his letter dated 10.8.92 (X7) invited the attentionof the Chairman to the letter X1/P8 and had called for a reportthereon.
The petitioner was therefore not justified in taking up the positionthat the 1st respondent did not cause an inquiry to be madepertaining to the allegations relating to the matters set out in section2(1) (a) to (e) of the Statute No. 4 of 1991, and that no ground orreason'existed to his knowledge which warranted an order ofsuspension. The document X1/P8,the contents of which were withinthe knowledge of the petitioner: This is a material document basedon the investigation made in relation to the administration of theUrban Council of which the petitioner was the Chief Executive Officer.The matters set out therein are the matters now required to beinquired into by the retired judicial officer. The petitioner hassuppressed this document and the matters relating thereto in hisoriginal petition and affidavit dated 22nd September 1992. He hadsought interim relief on the averments contained in the said petitionand affidavit. The application of the petitioner seeking a discretionaryremedy must fail on this ground for lack of uberrimae tides.
The 1st respondent has also stated that there was also noresponse to the letters sent by his Chief Secretary and himself dated
(X3). 24.9.91 (X4) and October ’91 (X5). The letters X3, X4 andX5 relates to the non-acceptance of an application for the supply ofelectricity to a co-operative society engaged in poultry keeping andthe alleged removal of a street lamp opposite premises No. 23,St. Annes road. The petitioner has set out his observations in relationto these letters in the document marked P12. His observations on thedocuments marked X1/P8 and X2 are set out for the first time in theseproceedings in the documents P10 and P11. These observations arebelated and the 1st respondent has, acting under the provisions ofStatute No. 4 of 1991 already appointed a retired judicial officer (X6)
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to hold an inquiry on the part of the petitioner in the administration ofthe Urban Council. Beruwala. In a further affidavit dated 22ndOctober ’91 the 1st respondent has annexed the letter ofappointment dated 10.11.92, marked X20, appointing Mr. B. E. deSilva, a retired judicial officer to hold an inquiry and the documentX21 sets out the matters to be inquired into. Having considered thisdocument it appears to me that the matters to be inquired into at theproposed inquiry include the matters referred to in the documents X1to X5 and specifically to matters into which an investigation wascaused to be made by the Commissioner of Local Government andreported on by the Senior Investigating Officer (XI and X2 withtranslations marked X1a and X2a).
Learned Counsel for the petitioner referred to the various mattersthat are required to be inquired into by the retired judicial officer andsubmitted that the charges are too trivial and are such that subjectingthe petitioner to an inquiry in respect of them is itself evidence ofmala tides on the part of the 1st respondent. Since these matters arealready the subject of an inquiry it would now not be appropriate forus to consider whether or not the charges are justified, and orwhether they are serious enough to merit an inquiry.
The petitioner contends that the order of suspension (P5) is astigma on the petitioner and would cause irreparable loss anddamage to the petitioner socially and politically. However hisassertion that he would not be able to participate at the meetings ofthe Council is incorrect as an order of suspension from the office ofChairman does not preclude him from participating at the meetingsof the Council as a member thereof.
A further ground of challenge was that the order of suspensionwas made without a hearing or any prior notice and that the saidorder was grossly unreasonable, as there was no situation ofemergency which warranted an immediate order of suspension andthat no countervailing consideration or circumstances existed whichrequired an order of suspension as a holding operation.
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Section 2(3) (a) of Statute No. 4 of 1991 provides as follows:
“(a) Before appointing a retired Judicial Officer under subsection (2) to inquire into any matter the Minister maywithout hearing or other formality as a holding operation,pending the proposed inquiry and report by such officerpreliminarily,
(1) suspend the Chief Executive Officer of the LocalAuthority from office and direct the Deputy Mayor or'Vice Chairman of the Local Authority as the case may
be … to exercise the powers and perform the dutiesof the Chief Executive Officer;"
The submission on behalf of the petitioner is that there was nosituation of emergency, a critical situation, a destablising factor or acompelling reason to resort to a holding operation by way of asuspension. Learned Counsel referred to the judgment of LordDenning M. R. in Lewis v. Hefer131 in which he used the term holdingoperation after quoting Megarry J. in John v. Pees It arose in thismanner. In the course of the submissions in John v. Rees it was thecontention of the counsel for the plaintiff that the rules of naturaljustice apply not only to expulsion or dismissal, but also tosuspension from office, and among the cases cited by him were Bumv. National Amalgamated Labourers' Union of Great Britain andIreland®, Mergarry J. said at page 305:
, “Burn's case (68) concerned a trade union. A rule required theexecutive committee of the union to “take every means to secure theobservance of the Union’s rules", and authorised it to “suspend,expel and prosecute members" and to "remove any incompetent orinsubordinate officer”. The committee passed a resolution removingthe plaintiff from any office held by him, and preventing him fromholding any delegation on behalf of the union for five years. Theplaintiff had been treasurer of his branch, and was chairman of it atthe date of the resolution, The complaint against him related solely tohis conduct as treasurer; and the resolution was passed without
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hearing the plaintiff or giving him any opportunity of explaining. P. G.Lawrence, J., construed the rules strictly, and held that the languageof the rule did not authorise the resolution that was passed. He wenton to consider the position if he were wrong in thus construing therules, and said:
“I have no hesitation in holding that the power to suspend orexpel a member for acting contrary to the rules is one of aquasi-judicial nature,"
He accordingly held the resolution bad because the plaintiff had notbeen given an opportunity of being heard in his defence. In relationto the rule of natural justice, P. 0. Lawrence, J., thus made nodistinction between suspension and expulsion. I would respectfullyconcur: in essence suspension is merely expulsion pro tanto. Each ispenal, and each deprives the member concerned of the enjoyment ofhis rights of membership or office. Accordingly, in my judgment therules of natural justice prima facie apply to any process ofsuspension in the same way that they apply to expulsion.
Lord Denning in Lewis v. Heffer (5 having quoted the last few linesabove said: “Those words apply, no doubt, to suspensions which areinflicted by way of punishment, as for instance when a member of theBar is suspended from practice for six months, or when a solicitor issuspended from practice. But they do not apply to suspensionswhich are made, as a holding operation, pending enquires. Veryoften irregularities are disclosed in a government department or in abusiness house; and a man may be suspended on full pay pendinginquiries. Suspicion may rest on him; and so he is suspended until heis cleared of it. No one, so far as I know, has ever questioned such asuspension on the ground that it could not be done unless he isgiven notice of the charge and an opportunity of defending himself,and so forth. The suspension in such a case is merely done by wayof good administration. A situation has arisen in which somethingmust be done at once. The work of the department of the office isbeing affected by rumours and suspicions. The others will not trustthe man. In order to get back to proper work, the man is suspended.
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At that stage the rules of natural justice do not apply”: See Furnell v.Whangarei High Schools Board m.
Geoffrey Lane LJ. in the course of the same judgment at page 360said; "So far as the rules of natural justice are concerned, it is. suggested that before the NEC suspended the committees andofficers they should have been heard, and the fact that they were notheard was a breach of the rules of natural justice sufficient toinvalidate the suspension. It seems to me that this suspension was anadministrative action by which by its very nature had to be takenimmediately. It was impossible for the NEC at that stage, and Iemphasise those words ‘at that stage', to hear both sides. In mosttypes of investigation there is in the early stages a point at whichaction of some sort must be taken and must be taken firmly in orderto set the wheels of investigation in motion. Natural justice will seldomif ever at that stage demand that the investigator should act judiciallyin the sense of having to hear both sides. No one's livelihood orreputation at that stage is in danger. But the further the proceedingsgo and the nearer they get to the imposition of a penal sanction or todamaging someone's reputation or to inflicting financial loss orfsomeone, the more necessary it becomes to act judicially, and thegreater the importance of observing the maxim, audi alteram partem.It seems to me in the present case, so far as one can judge on thefacts before us, natural justice does not demand that anyone shouldbe invited to provide an explanation or excuse before thatsuspension was imposed."
In de Saram v. Panditharatne 171, after a consideration of theauthorities including the above it was observed; “These authoritiessupport the proposition that suspension is of two kinds; one pendinginquiry and the other as a punishment and that the former would notattract the principle of natural justice audi alterm partem, whereas thelatter would definitely do so”. I have no reason to doubt that in thiscase the suspension of the petitioner, as a holding operation pendingthe proposed inquiry and report by the retired judicial officer wasdone in the interest of good administration and was not inflicted byway of punishment. Hence it was not necessary that either prior
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notice of the suspension or a hearing prior to suspension shouldhave been given to the petitioner. The rules of natural justice do notapply to suspensions which are made, as holding operation, pendinginquiries. The suspension is therefore not invalid on that account.
Besides, the relevant statute too does not provide for it. ThePowers of Supervision of the Administration of the Local AuthoritiesStatute No. 4 of 1991, which supersedes section 184 of the UrbanCouncils Ordinance has in section 2(3) (a) specifically provided thatthe Minister may before appointing a retired judicial officer make anorder of suspension without hearing or other formality”.
Considering the scheme of the provisions in the statute which setsout the powers of supervision of the administration of localauthorities, it is my view that suspension as a holding operation is notconfined or restricted to a situation when there is a crisis or anemergency as urged by learned counsel for the petitioner.
In Lewis v. Heffer, Lord Denning also considered the meaning ofthe following clause “a) To ensure the establishment of, and to keepin active operation, a Constituency Labour Party in everyConstituency." Lord Denning at page 363 held, “It seems to me thatthe words to keep in active operation include power to appoint anational agent to manage the local constituency party. If I am right inwhat I have just said … it follows that the NEC can appoint an agentto run the affairs of a local constituency party; otherwise there wouldbe a vacuum." Lord Denning was in this connection not seeking togive the words ’keep in active operation' any meaning other than thatwhich arose from its context.
The words ‘holding operation' in the context of the provisions insection 2(3) of the Statute No. 4 of 1991 contemplate suspension asa temporary or interim measure, in the interest of good administration,pending the inquiry and report of the retired judicial officer. The 1strespondent has directed the Vice Chairman in the meanwhile toexercise the powers and perform the duties of the Chief ExecutiveOfficer. This holding operation as provided for in the relevant Statute
CA
Faleel v. Susil Moonesinghe and Others (Ismail, J.}
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is not necessarily to be resorted to only in an extreme situation. The1st respondent has acted in the legitimate exercise of his powers asprovided for in the relevant Statute.
For these reasons this application is dismissed with costs.
W. N. D. PERERA, J. -1 agree.
Application dismissed.