GUNARATNE v. CHANDRANANDA DE SILVA

040-SLLR-SLLR-1998-V-3-GUNARATNE-v.-CHANDRANANDA-DE-SILVA.pdf


CA
Gunaratne v. Chandrananda de Silva
265
GUNARATNE
v.CHANDRANANDA DE SILVA
COURT OF APPEALYAPA, J..
GUNAWARDENA, J„
C.A. NO. 927/98
SEPTEMBER 16TH, 22ND. 29TH, 1998
Writ of Certiorari — Public officer sent on compulsory leave by Secretary, Ministryof Defence – Approval given by the Public Service Commission – Validity of suchletter – who could issue same – Articles 55, 55 (5) Constitution – Preclusive clause- Could the court question the conduct of the Commission – Excess of jurisdiction/nullity-ultra vires.
The petitioner a senior Deputy Inspector General of Police was sent on compulsoryleave by letter dated 17. 8. 98 by the Secretary/Defence as The Commissionof Inquiry (Batalanda Commission) had made adverse findings against the pe-titioner.
It was contended that, the decision to place the petitioner on compulsory leaveis ultra vires and therefore is void in law for the reason that the said decisionhas not been taken by the proper authority – P.S.C.
Held:
It was very clear that it was the respondent who has decided to placethe petitioner on compulsory leave and had thereafter recommended tothe PSC that approval be granted to place the petitioner on compulsoryleave.
The powers given to the PSC regarding disciplinary control has not beendelegated, therefore the decision to place the petitioner on compulsoryleave has to be a personal decision of the PSC, the decision-making bodyshould bring their minds to bear on the matter before them and take acollective decision and further there must be evidence to support that sucha decision was in fact made.
On the question whether the court was precluded from inquiring into orquestioning the conduct of the PSC in view of Article 55 (5); the decisionmade by the respondent who had no legal authority to make such a decisionis in law a nullity and such a decision is void and therefore it is opento a court to declare such decision a nullity.
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Per Gunawardena, J.
‘Decision takers should be keenly aware of their responsibilities, that wouldlead to a more considered exercise of the powers at their disposal. Properobservance of the law on their part should undoubtedly affect the qualityof decision-making for the better thereby avoiding the need for interventionby court . .
Per Gunawardena, J.
“the facts of this case afford a typical and characteristic example of themost direct and if I may say so, unproblematical application of the principleof ultra vires because the Secretary,/Defence had purported to place thepetitioner on compulsory leave when he did not have the shadow of apower to do. The P.S.C. is not the after ego of the Secretary/Defencealthough it had acted as if it were.
Per Gunawardena, J.
“it is an inflexible and deep rooted principle of law that no act or decisionwhich is void at its inception can ever be ratified . . . further statutorypower must be exercised only by the body or officer in whom it has beenreposed or confided unless sub delegation of the power is authorised byexpress words or Necessary Implication . . . further one cannot act ordecide on his own account when infact one is devoid of power to soact or decide and seek to validate that act or decision thereafter underthe colour of the concept of ratification".
APPLICATION for Writs of Cetiorari/Prohibition.
Cases referred to:
Cader and others v. Commissioner for Mosques and Muslim CharitableTrusts and others – 66 NLR 16.
Abeywickrema v. Pathirana and others 1986 1 SLR 120.
PG Ratnayake v. Secretary, Ministry of Public Administration and others -SC 277/95 (FR) SCM 7.5.97.
Anisminic Ltd. v. Foreign Compensation Commission – 1969 2 AC 147.
Brook v. Brook 1871 Law Reports Exchequer 99.
Keighley v. Maxstead – 1901 AC 240 – 1937 AC 898.
K. N. Choksy PC with Mohan Pieris and Ms. K. Wijetunga tor petitioner.
K. S. Kamalasabaysen PC, Addl S. G. with U. Egalahewa, SC, for respondent.
Cur. adv. vult.
CAGunaratne v. Chandrananda de Silva (Hector Yapa, J.)267
November 26, 1998.
HECTOR YAPA, J.
In this application, the petitioner is seeking a Writ of Certiorari to quashthe order of compulsory leave, contained in the letter of the respondentdated 17.08.98 marked P1, and a writ of Prohibition for the purposeof prohibiting the respondent from taking any further action consequentupon P1. The petitioner is Senior Deputy Inspector General of Police.The respondent who is the Secretary, Ministry .of Defence, on 17thAugust, 1998, placed the petitioner on compulsory leave by the saidletter P1. At the time the petitioner was sent on compulsory leave,he was in charge of Support Service, which included supervision andcontrol of Sri Lanka Police Reserves, Field Force Headquarters,Transport Division, Welfare Division, Building and Supplies Divisionsand the Physical Assets Management Division of Sri Lanka Police.The petitioner has 33 years, of continuous service in the PoliceDepartment. Having graduated from the University of Sri Lanka,Peradeniya in 1963, he joined the Police Department on 01. 02. 1965as a Probationary Assistant Superintendent of Police and held respon-sible positions such as Director of National Intelligence Bureau, Director-General of Intelligence and Security in the Ministry of Defence, andSenior Deputy Inspector-General (Ranges), supervising the PoliceRanges commanded by Deputy Inspectors-General, throughout thewhole country.
It will be convenient at this stage to state briefly the circumstancesleading to the issuance of a compulsory leave order against thepetitioner. In the year 1995, Her Excellency the President under theCommissions of Inquiry Act, No. 17 of 1948, as amended, appointeda commission of inquiry comprising two judges of the High Court,Honourable D. Jayawickrama (now Judge of the Court of Appeal) andNimal Dissanayake, to inquire into allegations relating to theestablishment and maintenance of places of unlawful detention andtorture chambers at the Batalanda Housing Scheme.
After the conclusion of the inquiry, the said commission forwardedto Her Excellency the President, the report which contained adversefindings against several persons including the petitioner. It wouldappear from the document marked R1 by the respondent, that thepetitioner has been subject to adverse finding by the said commission,in relation to the following matters: In respect of the inquiry relating
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to the disappearance of Sub Inspector Rohitha Priyadarshana of theSapugaskanda Police Station on or about 20th February, 1990, theCommission report has stated that the petitioner along with certainother police officers had suppressed correct events relating to thedisappearance of Rohitha Priyadarshana. This has been done duringthe period immediately following the disappearance of the said officer,and also during the course of the inquiry into the said disappearanceby the commission. In addition, the commission report has stated thatthe petitioner and two other Senior Police Officers had failed to takeappropriate action required by law, regarding the disappearance ofRohitha Priyadarshana. With regard to the establishment andmaintenance of places of detention at Batalanda Housing Scheme,during the period commencing on the 1st of January, 1988 and endingon the 31st of Decembere 1990, where, persons were detained andwere subject to inhuman or degrading treatment, the commissionreport has stated that the petitioner having assumed duties as DeputyInspector-General of the Greater Colombo Range, became aware thatpolice officers of the Kelaniya Police Division were occupying housesat the Batalanda Housing Scheme, procured contrary to the PoliceDepartment Regulations. However, he refrained from giving appropri-ate instructions to the relevant Police Officers to take necessary actionin this regard, and the said failure on his part led to the continuedoccupation of the Batalanda Houses by certain police officers, resultingin certain houses being used to illegally detain and torture persons.It was further stated in the commission report, that the petitioner whilstknowing or having reasons to believe that the said illegal activity wastaking place, refrained from taking appropriate steps to halt such illegalactivity from continuing.
It is clear from P1, that having regard to the findings of theBatalanda commission against the petitioner, he has been placed oncompulsory leave, to facilitate proper investigations and inquiries relatingto the said findings. The letter P1 dated 17. 08. 98 produced belowreads as follows:
CONFIDENTIALAugust 17, 1998.
Mr. M. M. Gunaratne
Senior Deputy Inspector General of Police
Through : The inspector-General of Police,
Police Headquarters,
Colombo 1.
COMPULSORY LEAVE
CAGunaratne v. Chandrananda de Silva (Hector Yapa, J.)269
The Secretary to Her Excellency the President has referred tome for necessary action, the Report of the Commission of inquiryappointed to inquire into the Establishment and Maintenance ofplaces of Unlawful Detention and Torture Chambers at the BatalandaHousing Scheme.
I have noted that allegations made against you by severalwitnesses, your explanations to the Commission, and the findingsarrived at by the Commission contained in the Report.
In order to facilitate proper investigations and inquiries intothese relevant allegations and findings, you are hereby placed oncompulsory leave with immediate effect until further notice, in termsof para 21.6 of chapter XII of the Establishments Code.
You are requested to hand over all the Government propertyunder your charge to an Officer/Officers nominated by the IGP andto inform him the private address and the contact telephone numberfor further communication. You are not allowed to leave the islandwithout my prior approval.
Please acknowledge receipt of this letter.
sgd.
(R. K. Chandrananda de Silva)Secretary/Defence
It is this order contained in P1, placing the petitioner on compulsoryleave that is being challenged in this application. It should also benoted that purported decision taken by the respondent is on a wronglegal basis as para 21.6 of chapter XII of the Establishments Codehas no application.
At the hearing of this application Mr. Choksy, President's Counselsubmitted on behalf of the petitioner, that the decision to place thepetitioner on compulsory leave is ultra vires, or outside jurisdiction andtherefore, void in law, for the reason that the said decision has notbeen taken by the proper authority, namely the Public Service Com-mission. He pointed out that according to the constitution of Sri Lanka,Public Service Commission is the proper authority to take such adecision. Learned counsel referred to Articles 55 and 56 of theconstitution and contended that in terms of Article 55 (3) of theconstitution, it is the Public Service Commission which has to take
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the decision to place the petitioner on compulsory leave, since theappointment, transfer, dismissal and disciplinary control of PublicOfficers in the category of the petitioner, is a subject delegated tothe Public Service Commission by the Cabinet of Ministers. Article55 (3) of the constitution provides :'
The Cabinet of Ministers may from time to time delegate itspowers of appointment, transfer, dismissal and disciplinary controlof other public officers to the Public Service Commission : . . .
Therefore, counsel argued that according to P1, the decision toplace the petitioner on compulsory leave has been taken by therespondent, who was not the proper authority, it was submitted bycounsel that lawful exercise of power meant that it should beexercised by the authority upon whom it is conferred, and that suchpower cannot be exercised by anyone else. In the present case,counsel contended that the Public Service Commission is the bodyempowered in terms of the constitution to take the decision to placethe petitioner on compulsory leave and therefore that power cannotbe exercised by the respondent, who is the Secretary, Ministry ofDefence. It was further argued that in terms article 56 (8) of theconstitution, three members of the Public Service Commission hadto bring their own minds to bear upon the question of placing thepetitioner on compulsory leave, and come to a finding by them.Therefore, it was not lawful for the respondent to decide this matterand place the petitioner on compulsory leave. Learned counselsubmitted that, clearly the decision to place the petitioner oncompulsory leave has been taken by the respondent and this positionis made clear from the wording of P1 referred to above.
It is necessary to refer here to the document marked R2 by therespondent, which is a letter dated 17. 08. 98 written by the Secretary,Public Service Commission, to the respondent. The letter P2produced below reads as follows.
17th August, 1998
Secretary
Ministry of Defence
Compulsory Leave – Officers of the Police Department
CAGunaratne v. Chandrananda de Silva (Hector Yapa, J.)271
This refers to your letter dated 17. 08. 1998.
02. Public Service Commission has granted approval for placingthe following officers on compulsory leave as recommended by you.
1. Mr. M. M. Gunaratna – Senior DIG
-ASP
-ASP
-ASP
-ChiefInspector
Sgd.
SD Piyadasa
Secretary
Public Service Commission
It was submitted by counsel for the petitioner that this letter (R2)sent by the Secretary, Public Service Commission, to the respondent,does not in any way change the position that the decision to placethe petitioner on compulsory leave has not been taken by the properauthority, for the reason that Public Service Commission has onlygranted approval for placing the petitioner along with four other PoliceOfficers on compulsory leave, as recommended by the respondent.It was submitted by counsel that, when the exercise of statutory poweris given to a particular body of persons, it is necessary that suchbody of persons should exercise such power and come to a decision,without allowing the decision to be made by anyone else. It was furthersubmitted that, a person or the authority empowered to exercise adiscretionary power, would not be acting lawfully, if a recommendationmade by some other person or authority is granted approval. It wassubmitted that the reason for this requirement, was the need for thecorrect authority, to bring its mind to bear on the facts and circum-stances of the case, before a valid exercise of discretion is made.In support of this contention learned counsel cited two cases. Thefirst case he cited was Cader and others v. Commissioner for Mosquesand Muslim Charitable Trusts and others01. In that case the powerto appoint trustees was given by the statute to the members of theWakfs Board. However, Wakfs Board appointed as trustees of theMosque from a list given to them by a person (21st respondent) whohappened to be a member of Parliament. It was held that in selectinga person or persons for appointment as trustee or trustees of a mosque
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under section 14 of the Muslim Mosques and Charitable Trusts orWakfs Act, the discretion of the Wakfs Board has to be exercisedpersonally and cannot be abdicated by the Board in favour of anyoneelse, however competent, honourable or efficient that person may beas regards the matter. Any appointment made by the Board as theresult of selection by someone else is only a colourable appointmentand is not an appointment at all. In such a case, section 14 (1) (A)of Act No. 21 of 1962 is not a bar to compel the Board, by writ ofmandamus, to appoint a trustee or trustees according to law. Thesecond case cited by counsel was the case of Abeywickrema v.Pathirana and others<2>. In this case the question in issue was whetherthere was a valid termination of service, when the Regional Directoraccepted the resignation from the 1st respondent who was a gradeIII Principal of a school and relieved him from his duties. It was heldthat the letter of resignation did not bring about a valid terminationof the 1st respondent's contract of service because it was not ad-dressed to nor accepted by the Appointing Authority that is theEducational Service Committee. The Regional Director, Galle, is notthe proper authority to accept the resignation … In this case it wasalso held that the practice of regional directors accepting resignationsis bad in law as it involves giving them power which they do notpossess where there has been no delegation to them of the powerof appointment, transfer or dismissal.
As submitted by learned counsel for the petitioner it would appearfrom the contents of P1, that the decision to place the petitioner oncompulsory leave has been taken by the respondent: It should benoted that in paragraph 3 of P1, the respondent has stated as follows:"in order to facilitate proper investigations and inquiries into theserelevant allegations and findings, you are hereby placed on Compul-sory Leave with immediate effect until further notice, in terms of para21.6 of chapter XII of the Establishments Code". If the respondentwas really conveying a decision made by the Public Service Com-mission, it would be reasonable to expect the respondent to mentionin P1, that the Public Service Commission has decided to place thepetitioner on compulsory leave. However, the wording of P1 does nothave any reference to the Public Service Commission. In the circum-stances, the reasonable inference to be drawn from the wording ofP1, would be that the decision to place the petitioner on compulsoryleave, has been taken by the respondent. On this matter it is usefulto consider the other material furnished to court by the respondent.The respondent in this case has filed an affidavit with the two documents
CA
Gunaratne v. Chandrananda de Silva (Hector Yapa, J.)
273
referred to above marked R1 and R2. The document R1 is chapterIX of the commission report under the heading "findings" which refersto the allegations and findings against the petitioner and other persons.The document R2 is the letter dated 17.08.98 sent to the respondentby the Secretary of the Public Service Commission. According to R2it is very clear that, what the Public Service Commission has donein this case, is to grant approval to place the petitioner on compulsoryleave as recommended by the respondent. Therefore, it would appearthat the decision to place the petitioner on compulsory leave has beentaken by the respondent, who has made his recommendation to thePublic Service Commission seeking their approval. This position isclear from the affidavit filed by the respondent. Paragraph 7 (D), (E)of the respondent's affidavit states as follows:
7 (D). "that in view of the directions received from Her Excellencythe President and having considered the contents of the findingsagainst the petitioner, I took steps to place the petitioner oncompulsory leave and accordingly I took steps to serve the lettermarked P1 on the petitioner through the Inspector-General ofPolice. I annex herewith a copy of chapter IX of the said reportof the Commission marked R1 which contains the findings andrecommendations of the said Commission;
7 (E). “that simultaneously I sought the approval of the PublicService Commission for placing the petitioner on compulsory leavewhich was granted on the same day as P1 viz 17th August, 1998.
I annex herewith a copy of the said letter dated 17th August, 1998marked R2.
Therefore, it is very clear, that, it was the respondent who hasdecided to place the petitioner on compulsory leave and had thereafterrecommended to the Public Service Commission that the approval begranted for placing the petitioner on compulsory leave. The respondenthas not filed in court, his letter dated 17.8.98 which is referred toin R2, seeking the approval of the Public Service Commission afterplacing the petitioner on compulsory leave. Even in the absence ofthis letter, it would appear from the paragraph 7 D and E of the affidavitof the respondent referred to above, that the respondent having takensteps to place the petitioner on compulsory leave, simultaneouslysought the approval of the Public Service Commission, for placingthe petitioner on compulsory leave, which was granted on the sameday by R2.
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In this case it was the function of the Public Service Commissionas provided by law to consider the material available against thepetitioner personally and arrive at a decision to place the petitioneron compulsory leave, if the material so warranted. However, it is tobe observed that the respondent has taken the decision to place thepetitioner on compulsory leave and has recommended to the PublicService Commission to grant their approval to the decision made byhim. Even though the Public Service Commission has granted theirapproval to the recommendation made by the respondent, havingregard to the speed at which all these things had happened, it isobvious that the Public Service Commission has not brought theirminds to bear on the facts of this case and taken a decision. All thatthe Public Service Commission has done is to approve the recom-mendation made by the respondent. Therefore, obviously it is a decisionmade by the respondent and what the Public Service Commission hasdone is to rubber stamp the respondent's recommendation. A publicbody which merely rubber stamps some other officer's recommendationwill therefore, be acting unlawfully. It is common ground that powersgiven to the Public Service Commission regarding the disciplinarycontrol of the petitioner has not been delegated to the respondentand therefore, the decision to place the petitioner on compulsory leavehas to be a personal decision of the Public Service Commission. Whatis necessary here for the Public Service Commission is to keep thedecision in their own hands.
In a Fundamental Rights case, P. G. Ratnayaka v. The Secretary,Ministry of Public Administration and 11 others<3), the Supreme Courtexpressed the view that the decision taken by one of the membersof the Public Service Commission to quash an inquiry held againstthe petitioner was arbitrary. One of the matters in issue in that casewas the question of the validity of the order made by the Public ServiceCommission quashing or invalidating the 1st inquiry proceedings heldand concluded against the petitioner. It was observed in that casethat the 6th respondent as the Chairman of the Disciplinary Boardof the Public Service Commission had decided on 30.05.1995 to quashthe first inquiry held against the petitioner. On 02.06.1995 the othertwo members of the Disciplinary Board have minuted their agreement.It was observed by Shirani Bandaranayake, J. at page 9 that: "Althoughthe 6th respondent had averred that as the Chairman of the DisciplinaryBoard of the Public Service Commission, he chaired the meeting ofthe board on 2nd June when the decision was taken to quash theinquiry proceedings and to order a fresh inquiry in respect of the
CA
Gunaratne v. Chandrananda de Silva (Hector Yapa, J.)
275
charges framed against the petitioner, there is no evidence to supportthis statement. According to the available material, I am of the viewthat the decision to quash the inquiry and to order a new inquiry wastaken by the 6th respondent alone on the 30th May. The other 2members had agreed to this decision on the 2nd of June. Taking intoconsideration the sequence of events and all the facts and circum-stances, it is clear that the decision to quash the first inquiry is anarbitrary decision taken by the sixth respondent alone". Thisobservation of the Supreme Court in that case makes it very clearthat the decision-making body should bring their minds to bear onthe matter before them and take a collective decision, and further theremust be evidence to support that such a decision was in fact made.
In this case, one cannot deny the fact that the nature of the findingsagainst the petitioner by the Batalanda Commission are seriousallegations and require further investigations. It would be that, furtherinvestigations may require the petitioner to be placed on compulsoryleave. However, the decision to place the petitioner on compulsoryleave has to be made by the Public Service Commission alone andit is not open to the respondent to take this decision. Therefore, thedecision taken by the respondent to place the petitioner on compulsoryleave, and then seeking the approval of the Public Service Commis-sion, which was granted, is not a decision that is lawful, for the reasonthat it was not a decision taken by the Public Service Commissionafter a proper evaluation of the available material.
Further, at the hearing of this application, the learned AdditionalSolicitor-General for the respondent sought to argue that the courtwas precluded from inquiring into or questioning the conduct of thePublic Service Commission in view of Article 55 (5) of the constitutionprovides :
“Subject to the jurisdiction conferred on the Supreme Courtunder paragraph (1) of Article 126 no court or tribunal shall havepower or jurisdiction to inquire into, pronounce upon or in anymanner call in question, any order or decision of the Cabinet ofMinisters, a Minister, the Public Service Commission, a Committeeof the Public Service Commission or of a public officer, in regardto any matter concerning the appointment, transfer, dismissal ordisciplinary control of a public officer".
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This submission was based on the preclusive clause provided inthis article of the constitution. However, it must be stated here thata decision made by the respondent who had no legal authority tomake such a decision is in law a nullity and such a decision is voidand therfore it is open to a court to declare such a decision a nullity.In the case of Anisminic Ltd. v. Foreign Compensation Commissionmajority of judges held that the wrong decision of the commissionon what they regarded as a "jurisdictional fact" vitiated the decisionsince the tribunal had exceeded its jurisdiction by this wrong decision.The ouster clause, therefore, was not applicable as there was no "truedetermination by the tribunal as required by the statute". In the samecase at page 170 Lord Reid stated as follows: "If you seek to showthat a determination is a nullity, you are not questioning the purporteddetermination – you are maintaining that it does not exist as adetermination. It is one thing to question a determination which doesexist : it is quite another thing to say that there is nothing to bequestioned".
Similarly in the case of Abeywickrama v. Pathirana and others(Supra) it was held that Article 55 (5) of the constitution does notprotect orders or decisions of a Public Officer which are nullities orultra vires from judicial review. Therefore, the ouster clauses do notprevent the court from inquiring or intervening in cases of excess ofjurisdiction or where the order or decision made is a nullity.
In these circumstances therefore, the decision taken in thiscase, to place the petitioner on compulsory leave, is a nullityor ultra vires and has no legal effect. It is appropriate here torefer to the passage that was cited by learned President's counselfor the petitioner from Wade and Forsyth Administrative Law, 7thedition, page 43 "Any administrative act or order which is ultravires or outside jurisdiction is void in law, ie deprived of legaleffect. This is because in order to be valid it needs statutoryauthorisation, and if it is not within the powers given by theAct, it has no legal leg to stand on. The court will then quashit or declare it to be unlawful or prohibit any action to enforceit. The terminology here depends to some extent on the remedygranted. 'Quashing' is used in connection with the remedy ofCertiorari. A declaratory judgment is an alternative remedy withsimilar effect : it declares the offending act to be a nullity in law.Prohibition of execution may be an order of prohibition (a pre-rogative remedy) or an injunction. But these technicalities made
CA Gunaratne v. Chandrananda de Silva (U. De Z. Guhawardana, J.) 277
no difference to the legal result: an act found to be outsidejurisdiction (ultra vires) is void and a nullity, being destitute ofthe statutory authority without it is nothing.
Once the court has declared that some administrative act is legallya nullity, the situation is as if nothing had happened. In this way theunlawful act or decision may be replaced by a lawful one. If acompulsory purchase order is quashed as being ultra vires, there isnothing to prevent another order being made in respect of the sameland, provided that it is done lawfully. Thus a public-authority or tribunalis often given locus poenitentiae and is able correct an error by startinga fresh – something which it might otherwise be unable to do".
For the above reasons, I hold that the order to place the petitioneron compulsory leave contained in P1 dated 17.08.98, made by therespondent has no legal effect. Accordingly I make order granting theWrit of Certiorari as prayed for by the petitioner quashing the saidorder contained in P1. Further, I make an order in the nature of aWrit of Prohibition, prohibiting the respondent from taking any furtheraction in terms of said compulsory leave order contained in P1.1 wouldmake no order as to the costs of the application.
U.DE Z. GUNAWARDANA, J.
I agree with the order proposed by my brother the draft of whichI read on the 18th inst. But in view of the significance of the issuesthat arise, I think, it is fitting that I should give my reasons in a separatejudgment.
This is an application for certiorari and prohibition made by thePetitioner, who had been a Senior Deputy Inspector General of Police,seeking respectively to quash and prohibit the execution of the decisionmade by the respondent who is the Secretary, Ministry of Defence,placing the petitioner on compulsory leave by letter dated 17th August1998 (P1) with effect from that date.
In deciding this application; in the circumstances of this case, theinquiry would centre on two crucial matters : (a) Did the respondenthave the authority to make the impugned decision placing the petitioneron compulsory leave; (b) if, not, could the "granting of approval"subsequently, by the Public Service Commission, validate or giveefficacy to the aforesaid decision in question made by the respondent.
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It is as clear as clear can be that the respondent does not haveany more right than any other public officer to place the petitioneron compulsory leave. The learned Additional Solicitor General whoappeared for the respondent, unreservedly conceded that the PublicService Commission had not delegated to the respondent or any otherauthority its powers of appointment, transfer, dismissal or disciplinarycontrol in respect of the petitioner or in respect of the category ofpublic officers to which the petitioner belonged. So that the resultingposition may aptly and pithily be put as follows: Both the respondent(the secretary/defence) and the petitioner (The Deputy InspectorGeneral of Police) being public servants the former had no moreright to take disciplinary action against the petitioner than thelatter had to initiate or take any such action against the former.That is, perhaps, what one with discernment would have wanted tosay; and that is how he would have said it. It is worth observing thatthe Public Service Commission may under Article 58(1) of the con-stitution delegate its powers in respect, be it noted, of any “categoryof Public Officers". But such delegation must necessarily be madesuject to such conditions as may be prescribed by the cabinet – sothat it is a moot-point which, of course, does not call for considerationin the factual matrix of this case, as to whether such a delegationcan ever be made pursuant to Article 58(1) in respect of one or aparticular officer or a few or several officers – because the article 58(1)in express terms contemplates a “category of public officers" whichmeans a delegation in respect of a class – as opposed to a delegationin respect of an individual officer or a delegation ad hominem.
The arguments of both parties before us were rested on the footingthat although under Article 55(1) of the constitution the appointment,transfer, dismissal and disciplinary control of public officers was vestedin the cabinet of Ministers – yet there had been a delegation of suchpower, in respect of the category of officers to which the petitionerbelonged, to the Public Service Commission. In this regard, it ispertinent to note that it was the Public Service Commission that hadpromoted the petitioner to the rank which he held as at the date thatthe respondent purported to place him on compulsory leave, (vide letterdated 23.12.1993 marked P3 whereby the petitioner was apprised ofthe decision of the Pubic Service Commission promoting him to thepost of Deputy Inspector General of Police. The law, in its sagacity,perhaps, being conscious of the fact that it will lead to a dead-lockin matters, if it had been otherwise, had taken care, as is invariably
CA Gunaratne v. Chandrananda de Silva (U. De Z. Gunawardana, J.) 279
the rule in such matters, to repose powers of appointment, dismissaland disciplinary control and so on in one and the same body, in thisinstance, the Public Service Commission. The respondent does not,under the constitution of the Republic, have the semblance of a rightor power to take any disciplinary action against the petitioner and hisdecision, which had been conveyed to the petitioner by letter dated17.08.1998 under the hand of the respondent (Secretary / Defence),placing the petitioner on compulsory leave, is as void as void canconceivably be. The facts of this case afford a typical and characteristicexample of the most direct and, if I may say so, unproblematicalapplication of the principle of ultra vires because the Secretary/Defencehad purported to place the petitioner on compulsory leave when theSecretary/Defence did not have the shadow of a power to do so.
It now remains to consider the point designated (b) above viz.whether the Public Service Commission could "grant approval" as, infact, it had purported to do, and thereby impart efficacy or validityto the decision of the respondent placing the petitioner on compulsoryleave. It is worth recapitulating the argument of the Learned AdditionalSolicitor-General, perhaps, the only argument that one could conceiveof in the circumstances, rather perfunctorily made, he having not muchof a choice or selection in the matter of arguments – the argumentbeing that although the letter placing the petitioner on compulsoryleave was dated the 17th August 1998 it was, in fact, handed overto the petitioner on the 19th that is, two days later, by which datethe Public Service Commission had “granted approval" to the decisionof the respondent. Assuming that the letter (R2) bears the correctdate on which the Public service Commission had, in fact, "grantedits approval", the date on R2 being the 17th (August) itself, that beingthe date of the letter under the hand of the respondent as well placingthe petitioner on compulsory leave, then the Public Service Commis-sion must be held to have purported to "grant approval" on 17.08.98.It is clear from the averments at paragraph 7(d) and (e) of the affidavitfiled by the respondent (Secretary Defence), taking those avermentsat their face value, that the "steps" taken by the respondent to placethe petitioner on compulsory leave by serving the letter marked P1on the petitioner and seeking the approval of the Public ServiceCommission were "simultaneous", as stated in the respondent's ownaffidavit; so that, assuming that the Public Service Commission hadgranted its approval on 17.08.98 itself to the decision of the respondent- yet that approval would, of necessity, have been granted subsequent
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to the "step" that the respondent took (as averred in his affidavit) “to
place petitioner on compulsory leaveand serve the letter marked
P1 on the petitioner through the Inspector General of police" becauseit was the step that the respondent took to place the petitioner oncompulsory leave and the step that he took to seek the approval ofthe Public Service Commission that were “simultaneous". And "grantingapproval", by the Public Service Commission therefore, must neces-sarily be subsequent (in point of time) to the seeking thereof.
The argument of the learned Additional Solicitor General is akin,if, in fact, it is not really and veritably so, to an argument that thePublic Service Commission by granting its "approval" had ratified theimpugned decision made by the respondent. His argument seems tobe that the ratification had rendered the decision valid, if, in fact, thedecision of the respondent to place the petitioner on compulsory leave,had been invalid at its inception.
The submissions made by the learned President's Counsel for thepetitioner were, to say the least, sceptical of the veracity of theaverments in the affidavit filed by the respondent in court whichaverments were as follows : 7(d) "that in view of the directions receivedfrom Her Excellency the President and having considered the findingsagainst the petitioner, I took steps to place the petitioner on compulsoryleave and accordingly I took steps to serve the letter marked P1 onthe petitioner through the Inspector General of Police. I annex herewitha copy of chapter IX of the said report of the Commission markedR1 which contains the findings and recommendations of the saidCommission;
(e) that Simultaneously I sought the approval of the Public ServiceCommission for placing the petitioner on compulsory leave which wasgranted on the same day as P1 viz. 17th August 1998.1 annex herewitha copy of the said letter dated 17th August 1998 marked R2".
The learned President's Counsel for the petitioner made severalpertinent observations with regard to the above factual averments inthe affidavit of the respondent, of course, keeping within the limits ofgood taste, as is his wont. He impressed upon us the improbabilityof seeking and obtaining the approval of the Public Service Commis-sion on the same day as the 17th of August 1998 – that being thedate of P1, that is, the letter addressed to the Petitioner, under the
CA Gunaratne v. Chandrananda de Silva (U. De Z. Gunawardana, J.) 281
hand of the respondent (Secretary Defence) conveying to the Petitionerthe decision to place him (the petitioner) on compulsory leave. Thelearned President's Counsel for the Petitioner also stressed the needfor getting together of a quorum of the members of the Public ServiceCommission to make any decision, the convening of which would taketime. Further, the learned President's Counsel for the petitioner madea point of the fact that although it was averred at paragraph 7(e) ofthe affidavit of the respondent that he (the Secretary Defence) soughtthe approval of the Public Service Commission on the 17th (August)itself-a copy of the letter whereby the respondent (Secretary Defence)stated that he sought such approval had not been produced in courtmaking, as the learned President's Counsel argued, the said aver-ments highly suspect-that is, those averments as to seeking andobtaining "the approval" of the Public Service Commission on the samedate (17.08.98) as the date on which he (the respondent – SecretaryDefence) "took steps to serve the letter marked P1 on the Petitioner".(It is to be recalled that P1 was the letter dated 17.08.98 under thehand of the Secretary Defence placing the petitioner on compulsoryleave). Further, the learned President's Counsel for the petitionersubmitted that the fact that the respondent (Secretary Defence) hadnowhere in his letter P1 stated that he sought or would be seekingthe approval or ratification of the Public Service Commission immeas-urably aided one to discover on which side the truth lay. The pointthat the learned President's counsel made was that if, as stated inthe respondent's affidavit filed in the Court of Appeal subsequentlyi.e. on 23.09.98, the respondent (Secretary Defence) had, in fact,"sought the approval of the Public Service Commission simultaneouslywith taking steps to place the petitioner on compulsory leave. . . byserving the letter marked P1 on the petitioner,” the respondent wouldnot have omitted to state that vital fact that he would be seeking orthat he had sought the approval of the Public Service Commission,in letter P1 – as was also his duty to have done. But the above pointsmade by the learned President's Counsel for the Petitioner althoughthey have a telling force, yet fail to establish convincingly the propo-sition that the respondent (Secretary Defence) did not seek and obtainthe approval of the Public Service Commision on 17.08.1998 itselfwhich was the date of P1 above referred to – because, sometimes,the truth is stranger than fiction. As stated above, it is wholly irrelevantto consider as to when or how soon after the decision made by therespondent to place the petitioner on compulsory leave, that the Public. Service Commission purported to "grant approval" or ratify the decision
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of the respondent because the Public Service Commission was aswholly destitute of power to “grant approval" or ratify the decision ofthe respondent as the respondent was destitute of authority to makethe decision to place the petitioner on compulsory leave – therebyresulting in the act of ratification on the part of the Public ServiceCommission being as blatant a nullity as the act or decision of therespondent was in placing the petitioner on compulsory leave – asthe sequel would further serve to show.
The true and correct constitutional position, as at present, againstthe background or in the light of which the validity of the decisionsor the acts of both the respondent and the Public Service Commissionhave to be tested is as follows: as explained above as well, in termsof article 55(1) of the constitution the appointment, transfer dismissaland disciplinary control of the Public officers is vested in the cabinetof ministers. However in terms of article 55(3) the cabinet of ministersmay delegate its powers (referred to above) to the Public serviceCommission as had been admittedly done in respect of the petitioneror rather in respect of the category of public officers of whom thepetitioner is one (such officer). The Public Service Commission pursuantto article 58(1) however, may delegate to a public oficer the aforesaidpowers in respect of public officers reposed in it or delegated to itby the cabinet. But, admittedly the powers delegated to the PublicService Commission in respect of the petitioner, had not been sub-delegated (by the Public Service Commission) in turn to any officeror to the respondent. So that as at the relevant date i.e. 17th August1998, that being the date on which the petitioner was placed oncompulsory leave, the power to take disciplinary action by way ofplacing the petitioner on compulsory leave was solely and exclusivelyvested in the Public Service Commission and in no other body orperson – thus making this case a straight – forward one: the decisionof the respondent is void ab initio i.e. void from the beginning as ifit never existed because the respondent (Secretary-Defence) had nolegal authority to make the decision and therefore, in law, it does notexist; and legally it never had existed. Not only is the decision ofthe respondent a nullity but also the professed or ostensible ratificationof the said decision by the Public Service Commission by purportingto "grant approval" is also a nullity. It is worth recalling the solitaryargument put forward on behalf the respondent viz. that as the PublicService Commission had "granted its approval" to the decision madeby the respondent by the date that the letter P1 was, in fact, served
CA Gunaratne v. Chandrananda de Silva (U. De Z. Gunawardana, J.) 283
on the petitioner – the Public Service Commission must be deemed,if not, held to have ratified the impugned decision made by therespondent. At any rate, the Public Service Commission could not,in law, "grant approval" and so ratify or impart validity and efficacyto the decision of the respondent, reasons being at least four-fold:
(i) it is an inflexible and deep-rooted principle of law, which is aselementary as it is well-known, that no act or decision whichis void at its inception, as is the decision of the respondent,can ever be ratified vide Halsbury's Laws of England (4th edition-vol. 01) page 452. In Brook vs. Hook(5) Kelly C. B. said thus
: "….that although a voidable act may be ratified by matter
subsequent it is otherwise when an act is originally and in itsinception void",
another principle which is as basic as it is rudimentary isembedded in the maxim: delegatus non potest delegare whichmeans that a statutory power must be exercised only by thebody or officer in whom it has been reposed or confided-unlesssub delegation of the power is authorized by express wordsor necessary implication. This principle has been recognized tosome extent, if not wholly, in article 58(1) of our constitutionin the following terms: "The Public Service Commission or anycommittee thereof may delegate to a public officer, subject tosuch conditions as may be prescribed by the cabinet of Min-isters, its powers of appointment, transfer, dismissal or disci-plinary control of any category of public officers".
In as much as the Public Service Commission can sub-delegateits powers only subject to such conditions ordanied or prescribed bythe cabinet of Ministers it follows logically and by necessary implicationthat the Public Service Commission can approve or ratify also onlysubject to such conditions as may be prescribed by the cabinetbecause ratification by the delegate, in this instance, the Public ServiceCommission, may be said to be a concomitant of the power to sub-delegte. In other words, as admittedly, there is no sub-delegation ofits powers by the Public Service Commission to the respondent interms of Article 58(1) of the constitution in the manner contemplatedthereby-the Public Service Commission must be held not to have beenauthorized by the constitution to ratify the decisions of the respondent
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as the Public Service Commission could have ratified also only inregard to matters within the area of authority delegated to the re-spondent in terms of article 58(1) of the constitution, if, in fact, therehad been such a sub-delegation (with the concurrence of the cabinet).But as there is, admittedly, no such express sub-delegation to therespondent of the powers of appointment and so on in respect ofthe petitioner in terms of article 58(1) of the constitution there cannotbe any legal ratification by the Public Service Commission of thedecision in question – as the power to ratify is subsumed in delegationor subdelegation of authority. Delegation or sub-delegation (of author-ity) means granting precedent authority or granting authority before-hand whereas ratification also means, in a way, granting authoritysubsequent to the event. Thus, ratification (being, so to say, a speciesof delegation) is subject to the same rule as delegation viz. delegatusnon potest delegare and in the admitted absence of an expresssubdelegation in terms of article 58(1) of the constitution the PublicService Commission could not have legally approved the decision ofthe respondent with a view to conferring or in an attempt to confervalidity thereon;
as a legal principle one cannot act or decide on his own account,as the respondent (Secretary Defence) had obviously done inthis instance, when in fact, one is devoid of power to so actor decide and seek to validate that act or decision thereafter,under the colour of the concept of ratification. The respondent(Secretary/Defence) had not in his letter P1 (placing the pe-titioner on compulsory leave) indicated that he was acting onbehalf of the Public Service Commission, nor had he even statedtherein, that is in PI, that he would be seeking ratification orapproval of his decision from the Public Service Commission.The respondent had clearly acted on his own responsibility. Theterms of the letter P1 under the hand of the respondent placeit beyond any controversy that he (the Secretary/Defence) hadpurported to act for himself and not professed to act on behalfthe Public Service Commission. There is not the faintest ref-erence to the Public Service Commission in P1 whereby therespondent purported to place the petitioner on compulsoryleave. It is not possible to cite any judgments from the areaof Public or Constitutional Law to illustrate the general propo-sition of law enunciated above because the concept of ratifi-
CA Gunaratne v. Chandrananda de Silva (U. Oe Z Gunawardana, J.) 285
cation belongs almost exclusively (of course, not wholly) to thesphere of the law of contract and agency. As such, I consider,it not wholly inappropriate to refer to a case from the field ofcontracts to exemplify the rule that an act that a person or bodyhad done on his own account without power to do so cannotbe later ratified by the another person even if that person bethe proper authority. Judicial bench – mark was set on thissubject in Keighley vs. Maxsted16’ A corn merchant was author-ized to buy wheat at a certain price on a joint account for himselfand the appellants. Acting in excess of his authority he pur-chased wheat at a higher price from the respondents but inhis own name. The appellants next day ratified the transactionbut later failed to take delivery of the wheat. The respondentbrought an action against them for breach.
The action failed. The corn merchant had contracted in his ownname without mentioning that the appellants were his principals. Anypurported ratification by them was therefore ineffective and they were,consequently, under no obligation to the respondents. It is worthrepeating in this context that the letter, if there be one, whereby therespondent (Secretary/defence) claims to have sought the approvalof the Public Service Commission had not been tendered to this courtto this day. That the rule that it is not possible for an undisclosedprincipal, that is, a principal who is not disclosed by the agent to thethird party at the relevant time to step in later and ratify the acts ofthe agent is a principle of universal application and therefore, is justas much a recognised principle in the field of Administrative Law asit, undoubtedly, is in the field of contracts;
in an any event the Public service Commission entrusted, asit was with powers of the cabinet in respect of the categoryof officers to which the petitioner belonged, could not havemechanically "granted approval" to place the petitioner oncompulsory leave, to use the very words in the letter P1 signedby Secretary to the Public Service Commission: "on the rec-ommendation" of the respondent. The Public Service Commis-sion, as evidenced by its own letter "granting approval" to thedecision of the respondent, had evidently acted under dictationof the respondent which it could not have done. To quote fromHalsbury's Laws of England (4th edition) Vol 01 – page 33: "Abody entrusted with a statutory discretion must address itself
286Sri Lanka Law Reports[1998] 3 Sri L.R.
independently to the matter for consideration. It cannot lawfullyaccept instructions from or mechanically adopt the view ofanother body as to the manner of exercising its jurisdiction ina particular case unless that other body has been expresslyempowered to issue such directions or unless the deciding bodyor officer is a subordinate element in an administrative hierarchywithin which instructions from above may properly be given onthe question at issue."
There is a wrongful failure on the part of the Public ServiceCommission to exercise its discretion and its own judgment becauseit had improperly parted with its own powers by accepting the"recommendation" or dictation from the respondent (Secretary/De-fence). The Public Service Commission is not the alter ego of theSecretary/Defence although it had acted as if it were. And if thereis one body from which the Public Service Commision could havelawfully accepted instructions or "recommendation" – perhaps, it wasnone other than the Cabinet of Ministers itself – for, in general,delegation of power does not imply parting with authority. The del-egating body, in this instance, the Cabinet of Ministers will retain notonly the power to revoke the grant or delegation but also the powerto act concurrently on matters within the area of delegated authority.
In this context, it would be apposite to reproduce the relevant letterdated 17.08.1998 addressed by the Secretary Public Service Com-mission, to the respondent (Secretary/Defence) which is as follow:
Compulsory Leave – Officers of the Police Department
This refers to Your letter dated 17.08.1998
02. Public Service Commission has granted approval for placing thefollowing officers on compulsory leave AS RECOMMENDED BYYOU. (emphasis is mine)
1. Mr. M. M. Gunaratne – Senior D.I.G.
-A.S.P.
-A.S.P.
-A.S.P.
-ChiefInspector
CA Gunaratne v. Chandrananda de Silva (U. De Z. Gunawardana, J.) 287
S.D. Piyadasa,
Secretary,
Public Service Commission
The above letter has been reproduced in extenso to show thatthe members of the Public Service Commission had not exercisedtheir own (personal) judgment even in the matter of deciding whetherto grant approval or not to the decision of the Secretary/Defence toplace the petitioner on compulsory leave – let alone decide, (by theexercise of their own judgment) whether the petitioner ought to beplaced on compulsory leave or not for as amply manifested by theterms of its own letter the Public Service Commission had grantedapproval or had agreed, willynilly, to place the petitioner on compulsoryleave "as recommended" by the Secretary/Defence. What does "granted
approval as recommended by you" mean? It means exactly
what it says. “Approval had also been granted" on the “recommen-dation" of the respondent (Secretary/Defence). In a way, it is nothingshort of the respondent "approving" his own decision because the oneand only factor that had prompted the Public Service Commission togrant approval to the decision of the respondent to place the petitioneron compulsory leave was the respondent's own “recommendation".It is manifest that the Public Service Commission had resignedlysubstituted the respondent's recommendation for their own judgmentthus ousting its own (judgment).
I think we have now arrived at almost the end of our discussionof the matters relevant to the issues arising for decision. The clockhas to be put back to how things were before the void decision wasmade to place the petitioner on compulsory leave. Perhaps, the goingback of the clock will be automatic-working of itself.
The facts above stated would show that decision of the respondentis as void as the purported ratification thereof by means of “grantingapproval" by the Public Service Commission and the decision of therespondent continues to be a nullity. The purported ratification bymeans of "granting approval" had not improved matters from the stand-point of the respondent. If there is anything that matches the decisionof the respondent, to place the petitioner on compulsory leave, in pointof nullity, it is the decision or act of- the Public Service Commission
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in "granting approval" to the former decision thereby seeking to validateit by ratification.
The decision of the respondent (Secretary/Defence) being vitiated,as it is by a jurisdictional error, that is, a decision that had been madein the exercise of a power or jurisdiction which the (Secretary/Defence)clearly did not possess- the decision had been legally void from thebeginning. The impact and the relevance of jurisdictional and no-jurisdictional error had been explained in the Text Book on Administrative Law by Peter Leyland, Terry Woods, and Janetta Harden -all three writers being lecturers in the University of North London. ToQuote from Page 309: "the distinction between jurisdictional and non-jurisdictional error is particularly relevant to the applicability of certioraribecause it is a remedy which is retrospective in its effect. That is,it quashes a decision that has already been made and therefore willhave markedly different impact for matters going to the Jurisdiction.When a jurisdictional error is deemed to have occured, it means thatthe decision has always been legally void: it is as if that decisionhad never been reached in the first place and never existed. A grantof Certiorari in these circumstances seeks to put the clock-back tohow things were before the void decision was made. In contrast, forerror made within the jurisdiction, an error on the face of the recorddoes not result in a fundamental illegality and thus a challenge willonly overturn the decision and take effect from the moment thatcertiorari is issued".
I have explained the above aspect viz. the effect of what, in law,is termed a jurisdictional error in order to point out and lay emphasison the fact that the petitioner ought to be treated as one who hadbeen in the service, without any interregnum or break, (notwithstandingthe respondent's purporting to place him on compulsory leave as from17.08.1998) – so far as his rights as a Public Officer are concerned- because the error that had affected the respondent's decision ispatently a jurisdictional one.
As a final note, I wish to state that the decision takers should bekeenly aware of their responsibilities. That would lead to a moreconsidered exercise of the powers at their disposal. Proper observanceof the law on their part should undoubtedly affect the quality of decisionmaking for the better – thereby avoiding the need for intervention bythe courts, however soothing and beneficial – in the generality of cases
CA Guriaratne v. Chandrananda de Silva (U. De Z. Gunawardana, J.) 289
– such wise and benevolent intervention would be. And, in this case,the court, has of necessity, to intervene, more so, because:
"Thrice is he arm'd that hath his quarrel just;
And be he naked, thought lock'd up in steel,
whose conscience with injustice is corrupted."
• I was not all that certain as to whether prohibition could be grantedin the circumstances of this case. At first, I thought that granting awrit of prohibition at this stage would bear an analogy with lockingthe stable door after the horse is stolen. Because I felt that prohibitionoperates in a different fashion to certiorari the object of granting aprohibition, in my view, being to prevent the illegal action occuringin the first place. But upon further reflection I felt that the respondentcould still persist in seeking to execute his decision although thedecision was void – and, as such, I felt almost instinctively thatprohibition could rightly be granted. Strangely enough, later I foundan authority for this course of action in (1937) AC 898 which in thiscontext would serve a dual purpose of not only showing that certioraraiand prohibition can keep their motion in one sphere and can go handin hand but also that we decide rightly as un-wittingly as we do decidewrongly – for it is sheer chance that brought the above authority inmy way to accord with my intuition. Wade points out that whereprohibition was applied for to prevent the enforcement of an ultra-vires decision, as happened in the case cited above "the effect isthe same as if certiorari had been granted to quash it; for the courtnecessarily declares its invalidity before prohibiting its enforcement."
For the aforesaid reasons I do hereby make order granting theWrit of Certiorari formally quashing the decision made by the respond-ent on 17.08.1998 purporting to place the petitioner on compulsoryleave because the decision of the respondent represents or typifiesan illustrative and vivid example of a "naked usurpation" of the powerthat only the Pubic Service Commission and/or perhaps, the Cabinetof Ministers alone could have lawfully exercised; in addition, prohibitionis also granted forbidding the respondent from further execution ofthe impugned decision dated 17.08.1998 made by him.
Writ of Certiorari/Writ of Prohibition granted.