JAYAWARDENA v. DHARANI WIJAYATILAKE, SECRETARY, MINISTRY OF JUSTICE AND CO

011-SLLR-SLLR-2001-V-1-JAYAWARDENA-v.-DHARANI-WIJAYATILAKE-SECRETARY-MINISTRY-OF-JUSTICE-AND-CO.pdf


JAYAWARD ENA
v.DHARANI WIJAYATILAKE. SECRETARY. MINISTRY OF JUSTICEAND CONSTITUTIONAL AFFAIRS AND OTHERS
SUPREME COURTFERNANDO, J.
DHEERARATNE, J. ANDW1JETUNGA, J.
SC APPLICATION 186/9514™ JULY, 1995
Fundamental rights – Cancellation of appointment of an Inquirer IntoSudden Deaths – Making of a new appointment – Section 108 of theCode of Criminal Procedure Act – Removal of persons holding officewhich is public in character – Rule of Law – Article 12(1} of theConstitution.
The petitioner was an Inquirer Into Sudden Deaths, Gampaha, appointedto that office by the then Minister of Justice by his letter dated 13.12.1993for a period of 3 years from 01.12.1993. He complained that the 1strespondent (Secretary, Ministry of Justice) purported to cancel hisappointment with effect from 31.05.1995 by a letter dated 26.5.1995 writtenby the Is1 respondent; that by another letter dated 26.5.1995 the Is'respondent informed the 3rd respondent that the 2nd respondent (Ministerof Justice) had appointed the 3rd respondent as the Inquirer into SuddenDeaths for the area, effective 01.06.1995.
The petitioner alleged that the 1st respondent had no power to cancel hisappointment and that in any event the cancellation was without cause orinquiry and hence invalid; that the appointment of the 3rd respondent wasalso a nullity and that the respondents thereby Infringed the petitioner'srights under Article 12(1) of the Constitution.
By a letter dated 13.12.1990 the petitioner was first appointed as Inquirerinto Sudden Deaths by the Minister of Justice for 3 years from 01.12.1990in terms of section 108 of the Code of Criminal Procedure Act.
The notice calling for applications in 1990 gave the closing date forapplications as 02.04.1990 and stated that applications, inter alia,-fromemployees of Goverment Departments and Co-operative establishmentswould not be entertained. As on 02.04.1990 the petitioner was a Co-operative Inspector but by a letter dated 17.03.1990 he had opted to retirein terms of PA. Circular No. 30 of 1990. By letter dated 14.05.1990 the
SC Jayawardena v. Dlmranl Wljaytllake, Secretary, Ministry of Justice 133
and Constitutional Affairs and Others (Fernando, J.)
petitioner’s retirement was approved with effect from 02.05.1990. Thepetitioner made this fact known to the Interview board on 15.05.1990.The board considered him eligible and recommended him as themost suitable and placed the 3rd respondent as the second In order ofmerit.
After the expiry of the 1990 appointment the Minister of Justice gave himthe aforesaid second appointment for a further period of 3 years from01.12.1993. The 3rd respondent did not attempt to challange either the1990 or the 1993 appointment by way of a fundamental rights applicationor otherwise and so the petitioner functioned as Inquirer without anylegal challenge from December 1990 until May 1995.
After the change of Government, the 3rd respondent wrote a letter dated25.10.1994 to the 2nd respondent (new Minister of Justice) questioningthe appointment of the petitioner on the ground that on 02.04.1990 thepetitioner was not eligible for the post; further that his appointment wasmade at the behest of a powerful Member of Parliament. The petitioneralso learnt that the 3rd respondent had been given an Interview by the 2ndrespondent. But the petitioner was not informed of the allegations. Assuch, the petitioner by a letter dated 03.05.1995 requested the 2ndrespondent to grant him an Interview. There was no reply to that letter.But without any notice or reasons the 1st respondent purported to cancelthe petitioner’s appointment and further Informed the 3rd respondent thatthe 2nd respondent had appointed him as Inquirer into Sudden Deathseffective 01.06.1995.
The Ist respondent produced with her affidavit a notification under Article46(2) of the Constitution whereby, with effect from 01.12.1994 the 2ndrespondent had delegated to the Deputy Minister of Justice, Inter alia, hispowers and duties in respect of the appointment of Inquirers under section108. The la respondent pleaded that the Deputy Minister determined thatthe petitioner's appointment In the first Instance was wrong and directedthat steps be taken to rectify the same by cancellation. This was notsupported by the production of any minute or document from the officialfiles. It was submitted that in view of the delegation it should be presumedthat the appointment of the 3rd respondent was also made by the DeputyMinister. However, in view of Article 157 of the Constitution, the DeputySolicitor General presented his case on the basis that the 2nd respondentmade the appointment.
Held :
■ It was the 1st respondent who cancelled the petitioner’s appointment.
This Is supported by the clear language of the Is* respondent's letter
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and the failure to produce documentary evidence from official files.She had no legal authority to cancel the appointment. Nor was shecompetent to do so on a directive of the Deputy Minister: that wouldbe an unauthorised sub-delegation.
■ Per Fernando, J.
“Respect for the Rule of Law requires the observence of minimumstandards of openness, fairness and accountability In administration andthis means – In relation to appointments to and removal from, officesInvolving powers, functions and duties which are public In nature – thatthe process of making a decison should not be shrouded In secrecy."
The office of Inquirer Involves functions of a public nature and Inparticular not stated to be held at pleasure – so that the Executive doesnot have an unfettered discretion in respect of termination. Thepetitioner cannot therefore be dismissed without cause and a hearing.Hence the cancellation of the petitioner's appointment was In breachof principles of natural Justice and must be quashed.
Per Fernando, J.
“In my view, while each and every breach of the law does not amountto a denial of the protection of the law, yet some fundamental breacheswill result In denying the protection of the law."
Per Fernando, J.
“It is accepted today that powers of appointment and dismissal areconferred on various authorities in the public Interest, and not for privatebenefit, that they are held In trust for the public and that the exercise ofthese powers must be governed by reason and not caprice."
It was the 2nd respondent, the Minister who purported to appoint the3rd respondent In place of the petitioner who would otherwise haveheld office until 30.11.1996. Since the cancellation of the petitioner'sappointment was illegal and a nullity the 3rd respondent's appointmentwas also a nullity.
By the cancellation of the petitioner's appointment and the appointmentof the 3rd respondent the petitioner's fundamental right under Article12( 1) has been infringed by the 1st and 2nd respondents.
SC Jayawardena v. Dharant Wtjaytllake, Secretary, Ministry of Justice 135
and Constitutional Affairs and Others (Fernando, J.)
Cases referred to :
Bandara v. Premachandra (1994) 1 Sri L R 301
Mlgultenne v. Attorney-General (1996) 1 Sri L R 408
Malloch v. Aberdeen Corporation (1971) 1 WLR 1578
Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180
Board of Education o. Rice (1911) AC 179
R.V. Unlvertsty of Cambridge (1723) 1 Str 557
De Mel v. De Silva (1949) 51 NLR 282. 285 – 6
General Medical Council v. Spackman (1943) AC – 627
John v. Rees (1970) Ch 345. 402
Ridge v. Baldwin (1960) AC 40, 47
Abeywickrema v. Pathlrana (1986) 1 Sri LR 120
Perera v. Jayawlckrema (1985) 1 Sri LR 285
Wljestnghe v. A.G. (1978-79-80) 1 Sri LR 102; 1 FRD 40
State of Jammu and Kashmir v. Rasool AIR 1961 SC 1301
W.B. v. Anwar All Sarkar (1952) SCR 284APPLICATION for relief for infringement of fundamental rights.
R.K.W. Goonesekera with J.C. Wellamuna for petitioner
Asoka de Silva, Deputy Solicitor General for l5*, 2nd and 4“’ respondentsMiss Marina Fernando for 3rd respondent.
Cur. adv. vult.
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July 27, 1995FERNANDO, J.
The Petitioner complains that his fundamental rights underArticles 12(1) and(2) of the Constitution were infringed by thepurported cancellation (with effect from 31. 5. 95) of hisappointment as Inquirer into Sudden Deaths, Gampaha, byletter dated 26. 5. 95, written by the 1st Respondent, theSecretary, Ministry of Justice; and by appointment of the 3rdRespondent as Inquirer into Sudden Deaths, Gampaha (witheffect from 1. 6. 95) by another letter dated 26. 5. 95, writtenby the 1st Respondent, in which she stated that thisappointment was by the Minister of Justice. This appointmentwas made without prior advertisement and interview.
Section 108 of the Code of Criminal Procedure Act, No 15of 1979, vests the power of appointment in the Minister ofJustice:
“The Minister may appoint any person by name or office to
be an inquirer for any area the limits of which shall be
specified in such appointment.”
Our attention has not been drawn to any stautory or otherprovision prescribing the qualifications or the procedure forsuch appointments.
Section 14(f) of the Interpretation Ordinance (Cap. 2)provides that “for the purpose of conferring power to dismiss,suspend or re-instate any officer, it shall be deemed to havebeen, and to be sufficient to confer power to appoint him.”Accordingly, the Minister had the power to dismiss, suspend orre-instate an Inquirer. The Respondents have not referred toany other power of removal or cancellation.
FACTSBy a notice dated 15. 2. 90, published in the Gazette of 2.
90, the Government Agent, Gampaha, called for applications
SC Jayawardena u. Dharanl Wljaytllake, Secretary. Ministry of Justice 137
and Constitutional Affairs and Others (Fernando, J.)
for the post of Inquirer Into Sudden Deaths, Gampaha. Theclosing date for applications was 2. 4. 90. That notice statedthat applications from employees, inter alia, of GovernmentDepartments and Co-operative establishments would not beentertained. The Petitioner and the 3rd Respondent were amongthe applicants. The Petitioner was then a Co-operative Inspector.
By his letter dated 17. 3. 90 to the Assistant Commissionerof Co-operative Development, copied to the Director of Pensions,the Petitioner stated that he wished to retire from service underthe provisions of Public Administration Circular No. 30 of 1988with effect from “1st June 1990;” he went on to request that hisretirement be approved with effect from “1st June 1990” (“June”having been originally typed). He appears to have delivered (andnot posted) the original as well as a carbon copy to the AssistantCommissioner, who seems to have returned the carbon copy tohim – because the carbon copy which he has produced has theAssistant Commissioner’s date stamp (“19. 3. 90") andhandwritten endorsement to the Commissioner: “Recommendedand forwarded for necessary action.” In that carbon copy, therequested date of approval has been altered: ’June" has beenscored off, and “April" written In its place. Although learnedCounsel for the Petitioner was not relying on that date, whenthe case was called on 6. 7. 95 to consider the grant of interimrelief, the relevance of this alteration was pointed out to thelearned Deputy Solicitor-General, who appeared for the 1st, 2ndand 4th Respondents. However, the Respondents did not producethe original or the copy sent to the Director of Pensions, both ofwhich must have been in the custody of the State. Immediatelyafter judgment was reserved, the Deputy Solicitor-Generalsought and was granted permission to produce that originaland that copy.
The Learned Deputy Solicitor-General thereafter tenderedthe original (but not the copy sent to the Director of Pensions,as, he had been told, that could not be traced). “June” had beenaltered to “May”. It is therefore clear that the Petitioner did alterthe date “lsl June 1990” when delivering the original, but it is
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not clear why “May” was inserted In the original, and “April" inhis carbon copy. I must take 1st May 1990 as the date ofretirement stipulated by the Petitioner.
PA Circular No 30/88 provides that “a public officer has theright to exercise his option of retirement after 20 (twenty) yearsof service,” and the Petitioner satisfied that requirement.
By letter dated 14. 5. 90 the Petitioner was informed thathis retirement had been approved with effect from 2. 5. 90. It isnot disputed that he made this fact known to the interview boardon 15. 5. 90, when the applicants were interviewed by theGovernment Agent, Gampaha, and two other public officers.The interview board considered that the petitioner was eligible,and recommended him as the most suitable, and the 3rdRespondent as the second in order of merit.
A question arose as to whether the Petitioner was still a Co-operative Inspector on 2. 4. 90, and therefore ineligible to applyand to be appointed. This was brought to the notice of the thenMinister by a minute dated 17. 7. 90 in which the Petitionerwas stated to be ineligible; this view was shared by the thenSecretary to the Ministry who recommended the appointmentof the 3rd Respondent.
There was considerable delay in making an appointment.The 3rd Respondent submitted appeals and protests to the thenMinister as well as the then President; his only complaint thenwas that the Petitioner was not eligible, and he did not suggesteither that he was being discriminated against, or that thePetitioner was being favoured, for political reasons. There weresevered petitions, and a question was asked in Parliamentregarding the Petitioner’s disqualification. The then Secretarysubmitted a report dated 12. 11. 90, maintaining his previousrecommendation. The minute of 17. 7. 90, the report of 12. 11.90, and one explanatory letter dated 25. 9. 90 from theGovernment Agent, have been produced, but not other relevantdocuments: Including several of the documents mentioned in
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and Constitutional Affairs and Others (Fernando, J.)
the report dated 12. 11. 90, such as certain other letters fromthe Government Agent, the Ministry reply In respect of the petitionsent to the then President, the question asked in Parliamentand the reply thereto.
The then Minister decided to appoint the Petitioner.Accordingly, by letter dated 23. 11. 90, the then Secretaryinformed the Petitioner that the Minister had appointed himInquirer into Sudden Deaths, Gampaha, for three years witheffect from 1.12. 90. Upon the expiry of that three-year period,the then Secretary informed him by letter dated 13. 12. 93 that“the Minister had extended his period of service by three yearsfrom 1. 12. 93 in order that he could continue to serve asInquirer.” The 3rd Respondent did not attempt to challenge eitherthe 1990 appointment or the 1993 appointment, by means ofa fundamental rights application, certiorari, declaration, or otherlegal proceedings, and so the petitioner functioned as Inquirer,without any legal challenge, from December 1990 until May1995.
After the Parliamentary General Election of August 1994,the 2nd Respondent assumed office as the new Minister ofJustice. The 3rd Respondent wrote to him on 25.10.94,questioning the Petitioner’s appointment. Neither he nor the 2ndRespondent sent the Petitioner a copy of that letter or informedhim of its contents. In that letter the 3rd Respondent requestedthat he be appointed Inquirer, not only questioning thePetitioner’s eligibility, but making new allegations: thatdisciplinary inquiries had been pending against the Petitionerat the time he sought to retire, and that the Government Agent,Gampaha, had been induced to call the Petitioner for theinterview, despite ineligibility, because of political pressureexerted on the Government Agent by a powerful Member ofParliament of the Government.
The Petitioner says that he received a copy of that letter onor about 2. 5. 95 (how or from whom, he does not say): andthat, realising that his appointment was in jeopardy, he wrote
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to the 2nd Respondent on 3. 5. 95. In his letter he claimed that,on the pretext of political victimization, the 3rd Respondent hadobtained an interview with the 2nd Respondent, at which the 3rdRespondent had made false allegations against the Petitioner, andthat the 2nd Respondent had orally assured the 3rd Respondentthat the Petitioner would be removed and the 3rd Respondentappointed in his place; in the exercise of his rights as a citizen,he requested the 2nd Respondent to grant him an interview.
The 2nd Respondent did not reply to that letter; neither henor anyone dealing with the matter granted the Petitioner aninterview; and he did not file an affidavit in these proceedings.Thus we have no denied of the receipt of that letter or theallegations therein; and no reason why the Petitioner was notgranted an interview to defend himself. In her affidavit, whichshe says was based on the official records and documents ofthe Ministry, the 1st Respondent admits the receipt of the 3rdRespondent's letter dated 25. 10. 94, but says nothing aboutthe Petitioner’s letter of 3. 5. 95. If it was the position of the 1stor the 2nd Respondent that no such letter had been received,this should have been categorically stated. The 3rd Respondentwould not have known of that letter. In his affidavit, while hedenies “the allegations made” against him in that letter, he doesnot deny that the 2nd Respondent did give him an interview andassurances as claimed by the Petitioner. On the material beforeus, the Petitioner’s version, that he did write to the 2ndRespondent, and that the 2nd Respondent had given an interviewand assurances to the 3rd Respondent, is therefore both credibleand probable.
Neither the 2nd Respondent nor anyone dealing with thematter, gave the Petitioner prior notice of the reason for hisproposed removal from office or an opportunity of beingheard in defence. In the absence of.an affidavit from the 2ndRespondent, and in the absence of an explanation from the1st Respondent, based on the official records, there is neithera reason nor an explanation for this want of administrativedue process. In the meantime, in order to fortify himself
SC Jayawardena v. Dharanl Wijaytilake, Secretary, Ministry of Justice 141
and Constitutional Affairs and Others (Fernando, J.)
for the anticipated Interview with the Minister, the Petitionerobtained a letter dated 23. 5. 95 from the High Court Judge ofGampaha certifying that he had discharged his duties asInquirer conscientiously, efficiently and without delay; this hasnot been questioned. No material has been placed before theCourt as to any discipllnaiy proceedings or political pressureas alleged In the 3rd Respondent’s letter dated 25. 10. 94.
It was In that background that by the first Impugned letter,dated 26. 5. 95, the 1stRespondent Informed the Petitioner:
“Effective 31. 5. 95. I cancel the appointment of Inquirerinto Sudden Deaths given to you by letter dated 13. 12. 1993 .
This letter was signed by her as Secretary to the Ministry. Itdid not purport to be written by her on the directions of theMinister or the Deputy Minister, or to be signed by her for or ontheir behalf.
By the second impugned letter, also dated 26. 5. 95. the1 st Respondent informed the 3rd Respondent:
“As directed by the Minister of Justice, I hereby informyou that, under the provisions of section 108 of the Code of
Criminal Procedure Acthe has appointed you as Inquirer
into Sudden Deaths for the area . . . effective 1. 6. 1995.”
SUBMISSIONSThe case for the Petitioner is that he was holding anappointment valid until 30. 11. 96; that the 1st Respondenthad no power to terminate that appointment; that althoughthe Minister had the power to terminate that appointment, itwas not an appointment held at the pleasure of the Minister,and could be terminated only.for cause and in compliance withnatural justice; that the Petitioner had not been informed ofany reason for termination and had not been given anopportunity of being heard in his defence, so that any
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cancellation of the appointment even by the Minister would have• been flawed; and that even if there had been cause fortermination of the original (1990) appointment, there was noreason to terminate the 1993 appointment. Learned Counselfor the Petitioner submitted that, having regard to the law andthe administrative practice in such matters, this was in violationof Article 12; that the cancellation of his own appointment beingbad, that the Petitioner should be restored to office. The Petitionerwas not granted interim relief, and hence did not function whilethe matter was pending. He claimed compensation in a sum ofone million rupees.
The learned Deputy Solicitor-General, on behalf of the 1st,2nd and 4th Respondents, contended that the Petitioner'soriginal (1990) appointment was fatally flawed, because hisretirement had not been approved on or before 2. 4. 90; thattherefore he was not eligible to apply or to be appointed; thatthe Petitioner’s 1993 appointment was not a fresh appointment,but only an “extension” of the original appointment, and so wasvitiated by the original flaw; and that the 1st Respondent's letterof 26. 5. 95 merely conveyed a Ministerial order, although it didnot say so. He contended that there was no obligation to informthe Petitioner of any reason or to give him an opportunity ofbeing heard before cancelling his appointment, because whatwas done was only the rectification of an injustice done to the3rd Respondent in 1990, when the then Minister failed toappoint him; that in any event, that defect was obvious, andknown to the Petitioner, so that such notice and hearing, priorto cancellation, was unnecessary; and that even if a hearinghad wrongfully been denied, yet that could only be remedied byway of writ, as it did not involve any infringement of fundamentalrights.
Learned Counsel for the 3rd Respondent contended thatthe Petitioner and the 3rd Respondent were not similarlycircumstanced; that they were therefore not in the same class;and that Article 12 did not require that they be treated equally.
SC Jayawardena v. Dharanl Wljaytilake, Secretary, Ministry of Justice 143
and Constitutional Affairs and Others (Fernando, J.)
REMOVAL FROM OFFICEThe 1st Respondent produced with her affidavit anotification under Article 46(2) of the Constitution whereby, witheffect from 1.12. 94, the 2nd Respondent had delegated to theDeputy Minister of Justice, inter alia, his powers and dutiesin respect of the appointment of Inquirers under section 108.
The learned Deputy Solicitor-General submitted that thecancellation of the Petitioner’s appointment, though seeminglyeffected by the 1st Respondent, must be regarded as having beendone on the directions of the Minister or the Deputy Minister,because, he asserted, it must be presumed that the Secretaryacts on the orders of her Ministerial superior. In regard to theappointment of the 3rd Respondent, he submitted that in viewof the delegation to the Deputy Minister, the Court should treatthe appointment as having been made by the Deputy, and notby the Minister. None of the official minutes and documents,relevant to these acts and orders, were produced.
We asked the Deputy Solicitor-General why it should bepresumed, simply because of that delegation, that it was theDeputy Minister – and not the Minister – who had made theappointment, because Article 157 of the Constitution permittedthe Minister, notwithstanding that delegation, to exercise thepower of appointment himself. His reply was that in that eventhe would present his case on the basis that the 2nd Respondenthad made the appointment.
Respect for the Rule of Law requires the observance ofminimum standards of openness, fairness, and accontability,in administration; and this means – in relation to appointmentsto, and removal from, offices involving powers, functions andduties which are public in nature – that the process of making adecision should not be shrouded in secrecy, and that thereshould be no obscurity as to what the decision is and who isresponsible for making it.
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It is therefore necessary to scrutinize the affidavits of thePetitioner and the 1st Respondent. The Petitioner averred:
.. I received on 1.6.95 letter of the 1st Respondent dated
26.5.95 [i.e. P9] cancelling my appointment reflected in theextension letter dated 13.12.93
. . . the 3rd Respondent has been appointed as coroneron. . . 26.5.95 by the 1st Respondent and a copy of the letterof appointment is . . . marked P10.
.. the sudden cancellation of my appointment/extenslonand removal from office as aforesaid is arbitrary and thusdiscriminatory in violation of Article 12( 1).. . inasmuch as:
There was absolutely no reason for such cancellationof my appointment and/or removal from office;
The appointment of the 3rd Respondent without callingfor fresh applications was arbitrary, unreasonable andcapricious, and showed bias on the part of the 1st and2nd Respondents:
My removal without any inquiry and the appointmentof the 3rd Respondent as aforesaid were contrary to allnorms of public administration and the EstablishmentsCode.
(14) . . . my removal and the appointment of the 3rdRespondent as aforesaid is politically motivated to favourthe 3rd Respondent, who was a supporter of the SLFRcontrary to Article 12(2).
(contained averments in respect of interim relief]
The 2nd Respondent is the Minister of Justice. . . . whohas appointed the 3rd Respondent as the Coroner in termsof P10. The 1st Respondent is the Secretary of the saidMinistry who has issued the letter P9 cancelling myappointment. . .”
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and Constitutional Affairs and Others (Fernando, J.)
The 1st Respondent In her affidavit denied paragraphs 13and 14, referring in some detail to the Petitioner’sdisqualification, and the delegation to the Deputy Minister, and
went on to say:
“8. Answering Paragraphs 9 and 10I only admit the
documents P9 and P10.
Answering Paragraph 16 … the Deputy Minister actingunder the said authority determined after inquiry, that theappointment of the Petitioner had in fact been wrong in the firstinstance and that the wrong appointment could not bepermitted to continue, and directed that steps be taken to rectifythe same by its cancellation.
Answering paragraph 15 …. it would be absolutelyimproper to permit the Petitioner to continue in service since .the Petitioner’s appointment in the first instance was wrong.
14 … . the duty of the present appointing authority is toremedy the wrong appointment. The failure to do so in the faceof clear evidence that the impugned appointment was wrongwould amount to permitting continuing discrimination.”
In respect of the allegation that it was she who cancelledthe Petitioner’s appointment, the 1st Respondent’s reply is inparagraphs 8 and 12; she did not attempt to explain that thewords “/ cancel” in her letter were a mistake, and that she wasmerely communicating an order made by the Minister or DeputyMinister. Nor did she say, clearly and directly, in paragraph 12,that the Deputy Minister “cancelled the Petitioner’sappointment”; instead she said that he “directed that steps betaken to rectify same by its cancellation” – that steps be takenby whom? By him, or by her? What steps? This shows that forsome unexplained reason the Deputy Minister did not himselfcancel the appointment (making, at least, a minute on the file),but left it to the lsl Respondent to effect the cancellation, whichshe then purported to do by means of the Impugned letter. Heraverment in paragraph 14 is vague: “the duty of the present
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appointing authority is to remedy the wrong appointment." Theprimary function of an affidavit is to affirm to the facts, and notto advance submissions of law. If the “Present appointingauthority” did “remedy the wrong appointment”, the affidavitshould have been communicative as to who remedied it andhow; and it was quite insufficient, instead, to assert that therewas a legal duty, and to leave it to be inferred that that duty hadbeen duly performed. The 1st Respondent’s affidavit is whollyinsufficient to contradict the contents of her letter.
The 1st Respondent’s letter to the Petitioner quite clearlystates that it was she who was cancelling the appointment; itreferred not to a cancellation already made, but to a cancellationbeing effected by that letter itself; and that is confirmed by thelack of any contrary averment in her affidavit, as well as thefailure to produce any minute or document from the official files.
I hold that the 1st Respondent cancelled the Petitioner’sappointment; that she had no legal authority to do so; and thateven if she had done so on the direction of the Deputy Minister,that would have been an unauthorised sub-delegation, becauseit is axiomatic that delegatus non protest delegare. Thecancellation was illegal and a nullity.
Leaving aside the Deputy Solicitor-General’s offer to arguethe case on the basis that it was the Minister who had appointedthe 3rd Respondent, 1 must now examine the affidavits in relationto that aspect. Having first said that the 1st Respondentappointed the 3rd Respondent, the Petitioner went on to say inparagraph 16 that it was the 2nd Respondent who had appointedthe 3rd Respondent – which was what the official letter ofappointment disclosed. Here again the 1st Respondentrefrained from making a clear and unambiguous statement thatit was the Deputy Minister who was responsible. In paragraph8 of her affidavit, she was content to “only admit the document”suggesting thereby that the letter spoke for itself, and that itwas the Minister who made the appointment. In paragraphs12, 13 and 14, she merely refers to the Deputy Minister, his“inquiry”, and his directions in respect of the wrong
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and Constitutional Affairs and Others (Fernando, J.)
appointment, but does not say a word about the newappointment or any directions concerning it. It can hardly beinferred that to “remedy the wrong appointment” included themaking of a new appointment, particularly as no reference wasmade to the views of the Deputy Minister, or of the “presentappointing authority”, regarding the suitability of the 3rdRespondent and the making of an appointment without publicadvertisement. If what happened was that “the Deputy Ministercancelled the Petitioner’s appointment, appointed the 3rdRespondent in his place, and directed the 1st Respondent toconvey those decisions”, the 1st Respondent could and shouldhave said so. Here, too, no attempt has been made to clarify thematter by producing the official records. There is no reason toreject what the letter of appointment plainly states.
I hold that it was the 2Dd Respondent, the Minister, whopurported to appoint the 3rd Respondent. This was in place ofthe Petitioner, and was for the balance period of the Petitioner’sterm, i. e. until 30.11.96; it was not intended to be an additionalappointment. Since the cancellation of the Petitioner’sappointment was illegal and a nullity, the 3rd Respondent’sappointment was also a nullity.
CANCELLATION OF THE 1990 APPOINTMENTThe 1st Respondent avers that the Deputy Ministerdetermined after inquiry that the appointment of the Petitionerhad in fact been wrong in the first instance, i. e. when firstmade in 1990. The learned Deputy Solicitor-Generalstrenuously contended that the impugned letteF of cancellationrelated to the 1990 appointment. This contention fails both onthe law and the facts. Even if it was legally possible to cancelthe 1990 appointment, it is plain, beyond argument, that the1st Respondent cancelled “the appointment given by letterdated 13.12.93”, and nothing else; and she cancelled itprospectively, with effect from 31.5.95, and not retrospectively,from 1993, or 1990. In law, the Minister’s power under section108, read with section 14 (f) of.the Interpretation Ordinance, is
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to dismiss, namely to terminate prospectively, and not to cancelor annul an appointment with retrospective effect (apart,perhaps, from exceptions such as fraud), particularly after ithas expired.
It was then submitted that there was really only oneappointment, namely the 1990 appointment; that the letterdated 13.12.93 referred to an "extension"; that the 1990appointment was continued from 1993; and therefore, it wasurged, that what was cancelled was the appointment as extendedand not just the “extension”. Although the letter dated 13.12.93referred to an extension, it was in law a distinct appointmentunder section 108, because section 108 confers only a powerof appointment, and there is no power to “extend” or renew aprevious appointment. And that was obviously how the 1stRespondent understood it, for by her letter of 26.5.95 she didnot cancel the “extension”, but the “appointment”; and shespecified the appointment given by letter dated 13.12.93, andnot the appointment given in 1990. An examination of the letterof 13.12.93 shows that the then Minister intended that thePetitioner should function as Inquirer for three years from1.12.93: section 108 gave him the power to bring about thatresult; and in that context, what was termed “extension" was are-appointment or a further appointment. Whateverdisqualification he might have been subject to in 1990, thePetitioner was eligible for appointment in 1993, and a distinctand severable appointment was made in 1993. Hence, even ifthe 1990 appointment had been flawed, there was no flaw inrespect of the 1993 appointment; and the “cause" relied on bythe Respondents for the cancellation of that appointment wastherefore irrelevant.
DENIAL OF NATURAL JUSTICEEven if it had been possible to overlook the flaws in theimpugned letters as being mere irregularities, and also to assumethat it was the 1990 appointment which had been cancelled, afurther question arises whether the cancellation of the
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Petitioners’s appointment was a nullity, because he had not beengiven prior notice of the reason why it was proposed to removehim and an opportunity of being heard in his defence.
The office of Inquirer Involves functions of a public nature;they are quasi-judicial, though probably not judicial. Whateverits functions, the office is not one stated to be held at the pleasureof the Executive or the appointing authority. Even though publicofficers appointed in terms of chapter IX of the Constitutionhold office “at pleasure”, this is subject to other provisions ofthe Constitution – in particular, the fundamental rights – so thatthe Executive does not have an unfettered and/or unreviewablediscretion in respect of termination (see Bandara vPremachandra,111 Migultenne v Attorney General.121 A fortiori,a person appointed under an ordinary law, which does notstipulate that the office is held at pleasure, cannot be dismissedwithout cause; a hearing is obviously required. Indeed inMalloch v Aberdeen Corporation,131 even though, by statute, heheld his appointment at pleasure, it was held that the Plaintiffcould not be validly dismissed without a hearing.
The learned Deputy Solicitor-General relied heavily on the“inquiry” held by the Deputy Minister, in support of hissubmission that there was no breach of natural justice. Whenasked what that inquiry involved, his reply was that the DeputyMinister would have perused the Ministry file and taken adecision. He surmised that the 3rd Respondent’s letter dated25.10.94 and the Petitioner’s letter dated 3.5.95 would havebeen considered. But in her affidavit the 1st Respondent did notadmit that the Petitioner’s letter had been received, or that itwas in the file, or that it had been brought to the notice of theDeputy Minister. Since the 1st Respondent did not say when the“inquiry” was concluded, it is even possible that the letter wasreceived after that “inquiry.” The need for a hearing becamemore important as the 3rd Respondent appears to have beengiven an oral hearing by the 2nd Respondent, by which time thescope of the allegations made by the 3rd Respondent hadextended far beyond ineligibility, into the realm of- disciplinary
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proceedings and improper political pressure; and we have notbeen told what view the Deputy Minister took of these allegations.
The legal principles are clear. In Cooper v. WandsworthBoard of Works14’ it was, laid down that “although there are nopositive words in a statute, requiring that the party shall beheard, yet the justice of the common law will supply the omissionof the legislature.” In a passage which has repeatedly been citedwith approval, Lord Lorebum, LC, referred to the duty of publicbodies and officers when called upon to decide questions, eveninvolving discretion:
“In the present instance, as in many others, what comes fordetermination is a matter to be settled by discretion,involving no law. It will, I suppose, usually be of anadministrative kind; but sometimes it will involve matter oflaw as well as matter of fact, or even depend on matter oflaw alone. In such cases (they] will have to ascertain thelaw and also to ascertain the facts. I need not add that indoing either they must act in good faith and listen fairly toboth sides, for that is a duty lying upon every one whodecides anything. But I do not think they are bound totreat such a question as though it were a trial. They haveno power to administer an oath, and need not examinewitnesses. They can obtain information in any way theythink best, always giving a fair opportunity to those whoare parties in the controversy for correcting orcontradicting anything prejudicial to their view.” Boardof Education v Rice, [1911] AC 179.'5'
Professor Wade (Administrative Law, 5th ed, p 444) refersto the picturesque judicial dictum in R. v. University ojCambridge,161
“I remember to have heard it observed by a very learnedman upon such an occasion, that even God himeself didnot pass sentence upon Adam, before he was called uponto make his defence.” Adam, says God, where art thou? Hastthou not eaten of the tree, whereof I commanded thee that
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thou shouldst not eat?, And the same question was put toEve also.”
Wade’s observations (p 442) are apposite:
"As the authorities will show, the courts took their standseveral centuries ago on the broad principle that bodiesentrusted with legal power could not validly exercise itwithout first hearing the person who was going ro suffer.This principle was applied very widely to administrative aswell as to judicial acts, and to the acts of individual ministersand officials as well as to the acts of collective bodies suchas justices and committees. The hypothesis on which thecourts built up their jurisdiction was that the duty to giveevery victim a fair hearing was just as much a canon ofgood administration as of good legal procedure. Evenwhere an order or determination is unchallengeable asregards its substance, the court can at least control thepreliminary procedure so as to require fair consideration ofboth sides of the case. Nothing is more likely to conduceto good administration.
Since the courts have been enforcing this for centuries andsince it is self-evidently desirable, it might be thought thatno trained professional, whether judge or administrator,would be likely to overlook it. But the stream of cases thatcome before the British and Commonwealth courts showsthat overlooking it is one of the most common legal errorsto which human nature is prone. When a Lord Chief Justice,an Archbishop of Canterbury and a three – judge Court ofAppeal, have strayed from the path of rectitude, it is notsurprising that it is one of the more frequent mistakes ofordinary mortals.”
The same principles have applied in Sri Lanka for manyyears. Gratiaen, J, in de Mel v de Silva,171 expressly approved ofthe following observations in General Medical Council vSpackman,8>
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“ …. in the absence of special provisions as to how thetribunal is to proceed, the law will imply no more than thatthe substantial requirements of justice shall not beviolated. It must give the party who may be affected by itsdecision an opportunity of being heard and of stating hiscase. It must give him notice when it will proceed with thematter and it must act honestly and impartially, and notunder the dictation of some person or persons to whom theauthority is not given by law. There must be no malversationof any kind. There would be no decision within the meaningof the statute if there were anything of the sort done contraryto the essence of justice.”
In other words, “the essential requirements of justiceand fair play” must be observed.
In these circumstances, I have no hesitation in holding thatthe Petitioner was denied a hearing. He was entitled to be toldwhat exactly was being alleged against him, and then given anopportunity to state his case in relation to those allegations. Itwas hardly enough for the Deputy Minister to take a decisionafter reading the file, even if it did include the Petitioner’s letter.
I hold that the cancellation of the Petitioner’s appointment wasin breach of the principles of natural justice, and must bequashed.
It was suggested that a hearing was unnecessary becausethe Petitioner’s ineligibility was obvious. The reason why thisexcuse cannot be entertained has been compellingly stated thus :
“As everybody who has anything to do with the law wellknows, the path of the law is strewn with examples of openand shut cases which, somehow, were not; of unanswerablecharges which, in the event, were completely answered; ofinexplicable conduct which was fully explained; of fixed andunalterable determination that, by discussion, suffered achange.” (John v. Rees [1970] ch 345, 402)f9)
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This Is not one of the rare exceptions to the rule.
As Wade points out (PP 476-7), the basic principle Is thatfair procedure comes first, and It Is only after hearing both sidesthat the merits can be properly considered; and hearing thecase may bring about a change of views (as happened In Ridgev. Baldwin110') or soften the heart of the authority to reduce thepunishment, e.g. from summary termination to termination withreasonable notice or a negotiated resignation. “This is theessence of good and considerate administration, and the lawshould take care to preserve it.”
THE FINDING THAT THE PETITIONER WAS NOT ELIGIBLEIN 1990.Learned Counsel for the Petitioner was content to presenthis case on the basis that his retirement was effective only from
5. 90, the date from which retirement was approved. TheRespondents contended that the Petitioner was Ineligible toapply, because he was still in public service on 2. 4. 90. Thequestion thus arose as to when the petitioner’s retirement tookeffect. PA circular 30/88 gave the Petitioner the “right” to retire,and did not provide that retirement would be effective oroperative only upon approval (unlike the provisions of theEstablishments Code regarding resignation, which wereconsidered in Abeywtckrema c Pathirana111'). If the Petitionerhad specified “1.4. 90” as the desired date of retirement, it isarguable that his retirement would have been effective from thatdate. However, the original of his letter dated 17. 3. 90 stipulates
5. 90 as the date of retirement.
Learned Counsel for the petitioner submitted that the factshad been fully disclosed to the interview board; that the boardtook the view that he was eligible; that even if there had been atechnical defect, the 3rd Respondent had failed to challengethe 1990 appointment in the proper way, by appropriate legalproceedings; and that thus, with full knowledge, there waswaiver and acquiescence by all concerned.
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Interesting questions arise In relation to the Petltoner'seligibility In 1990. Does “entertaining an application” refer toIts physical receipt on the closing date (2. 4. 90), or to itsconsideration by the Interview board (i. e. on a date after 2. 5.90)? Was there waiver or acquiescence? Can the question ofeligibility be raised after the expiration of the whole term of office?It is not necessary to decide these questions In this case In viewof my finding that it was the 1993 appointment which wasterminated, prospectively on 31. 5. 95, and not the 1990appointment; that the 1993 appointment was a distinctappointment; and that the Minister had no power to terminatethe 1990 appointment after it had expired by aflluxion oftime.
In any event questions of this sort could not have beendecided without due inquiry, conforming to natural justice.Justice requires that an injustice be put right In a just manner;If not, what we have Is not justice, but two injustices.
VIOLATION ARTICLE 12(1)The Deputy Solicitor-General contended that no relief shouldbe granted to the Petitioner for three reasons.
Firstly, he submitted that the Petitioner had deliberatelyaltered the date – from “June” to “April” – in the carbon copy ofhis letter dated 17. 3. 90, and thereby attempted to misleadthis Court. This is quite unjustified and unfounded. ThePetitioner did not rely on this date In this Petition, and hisCounsel did not seem even to have noticed the altered date: infact, Counsel declined to pursue the line of argument thatretirement might have been effective from 1. 4. 90, despitesurmise from the bench, and consistently contended thatretirement took effect only on 2. 5. 90, upon approval. Therehas not been the slightest attempt to mislead the Court. Thissubmission falls.
His second argument was that certiorari was the properremedy for a breach of natural justice, and not a fundamental
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rights application. That is a grave over-simplification of the facts.In this case there was a total failure of natural justice, becausethere was not even the semblance of a hearing; and not merelya defective hearing. This happened in relation to an office whosefunctions are such that the public interest demands that theindependence of its incumbent be safeguarded, by permittingremoval only for cause, and by precluding arbitrary, capriciousor summary termination. Farther, the alleged cause for removalpertained not to the relevant appointment, but to a distinct priorappointment, which had long expired. And that removal wasby an official devoid of legal authority. Simultaneously, anotherappointment was made without prior advertisement. As I willendeavour to show, such a case is plainly covered by thelanguage of Article 12( 1), without the need for any amendmentor expansion under the guise of “activist” interpretation.
His third submission (as well as the contention of the 3rdRespondent) is based on Perera v. Jayawickreme,1121 andobservations in Wifesinghe v. A.G,n3> In Wijesinghe v. A.G. thePetitioner had been appointed sub-postmistress in 1975, inpreference to a rival applicant, who – after the change ofgovernment in 1977 – complained to a Political VictimizationCommittee (“the Committee”). Without giving the Petitioner ahearing, the Committee held that there had been politicalvictimization, and recommended that the Petitioner'sappointment be cancelled and the rival applicant appointed.The Cabinet considered the matter and decided accordingly.Thereafter, the notice of termination due under the contract wasgiven to the Petitioner, and the riveil applicant was thenappointed. All three judges agreed in dismissing the Petitioner’scomplaint of the infringement of Article 12, but for differingreasons – so that the ratio decidendi is by no means clear. Ismail,J, held that politiced victimization had been established, andthat the Petitioner had no status before the Committee – whichimplies that there was no breach of natural justice. With muchrespect, the precedents I have cited persuade me that Ismail, J,was in error: a view shared by the other two Judges.Wanasundera, J.observed that the absence of a hearing –
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. is one of the unfortunate aspects of this case, and thereis very little we can do in the matter if we were to hold thatthe action taken by the state falls within its competenceand can be justified by the law, except perhaps to observethat an appeal by her to the executive for' relief deservessome consideration. This Court is undoubtedly theguardian and protector of the fundamental rights securedfor the people and our powers are given in very wide terms;but our authority is not absolute for these powers are subjectto certain well defined principles and we have to concedethat there are limits which we cannot transgress, howeverhard and unfortunate a case may be. We have to takecognizance of the distinction between ordinary rights thatcalls for our intervention.
Every wrong decision or breach of law does not attract theconstitutional remedies relating to fundamental rights.Where a transgression of the law takes place, due solely tosome corruption [sic], negligence or error of Judgment, 1 donot think a person can be allowed to come under Article126 and allege that there had been a violation ofconstitutional guarantees. There may also be otherinstances where mistakes or wrongful acts are done in thecourse of proceedings for which ordinarily there are built-in safeguards or adequate procedures for obtaining relief….
[citing foreign decisions]…. what may superficially appearto be an unequal application of the law may not necessarilyamount to a denial of equal protection of law unless thereis shown to be present in it an element of intentionaland purposeful discrimination. . . .
The Cabinet cannot be expected, in the course of itsmultifarious duties, to give its mind to intricate and technicalquestions of law in the same manner as a Court of law. Thetermination of the Petitioner’s services under clause 11 ofthe contract was a course of action available to the Cabinetand it was prlmajacle lawful."
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Sharvananda, J, (as he then was) had no hesitation Inholding that:
"the entire proceeding (before the Committee] is vitiated bythe fact that the Petitioner, who was the person mostconcerned, was not even noticed, and recommendationsprejudicial to the Petitioner have been made behind herback
. . . the proceedings and recommendations of the(Committee] are a nullity . . . and such a recommendationcan never form the basis for termination of services on goodground. Since the Cabinet decision to discontinue thePetitioner is grounded on such a recommendation, thetermination of the Petitioner’s services is not based on anygood ground. .
With those obervations, I am in respectful agreement.
Ultimately, that case rests on the ruling is State of Jammuand Kashmir V Rasool,1141:
“. . . the respondent [contended that he] was entitled tohave the procedure prescribed by the Kashmir Civil ServiceRules followed before the order demoting him could be made,and as that procedure was not followed, [he] had beendenied the equal protection of the laws. … all that can besaid to have happened is that the appellant acted in breachof the law. But that does not amount to a violation of theright to the equal protection of the laws. Otherwise everybreach of law by a Government would amount to a denialof the equal protection of the laws. … it is not therespondent’s case that other servants of the appellant hadbeen given the benefit of those Rules and such benefit hasbeen designedly denied only to him. . .”
Seervai (Constitutional Law of India, 3rd ed, vol 1,PP 285,287, 288) points out that it is not proper to import into the
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Indian Constitution any requirement of hostile. Intentional, orpurposeful discrimination adopted by the American Courts:because there Is no reference to Intention in the Article and thegravamen of the equality provision is equality of treatment, sothat it would be dangerous to introduce a subjective test, whenthe Article itself lays down a clear and objective test (citing W.B.v. Anwar AliSarkar*151.)
In my view, while each and every breach of the law does notamount to a denial of the protection of the law, yet somefundamental breaches of the law will result in denying theprotection of the law. Thus where Constitutional safeguardswhich amount to the “protection of the law” – permit removalfrom office only on specified grounds or after following aparticular procedure, a breach of any such provision would bea denial of the protection of the law – whatever the intention. Itis no answer that intricate or complex questions may beinvolyed, because the administrative system ensures that thosecharged with important duties and functions may not onlydelegate their powers, where necessary, but may also utilisethe services of persons with the requisite expertise andexperience to assist in making such decisions.
The further question whether, in order to establish a denialof the “equal” protection of the law, there must be proof thatothers were differently treated, was considered in Perera v.Jayawickremetl2>. There the Petitioner’s complaint was that hehad been denied the equal protection of the law because a wrongprocedure (laid down in a Circular) was applied to him, insteadof the Establishments Code, in attempting to retire him forgeneral inefficiency. The majority of a bench of nine Judges heldthat he failed because his petition failed to disclose at least oneinstance of another public officer, of a similar category, who hadbeen compulsorily retired after following the correct procedure(per Sharvananda, CJ, 299-300).
That case is distinguishable. Here the Petitioner’s removalwas accompanied by the simultaneous appointment, without
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advertisement and Interview, of the 3rd Respondent who hadbeen assessed as being less suitable for that post. Hence If acomparison Is essential, It was available. Further, In that casesome attempt was made to give notice of allegations and anopportunity to answer them, whereas here there was none.
However, I must point out that Sharvananda, CJ, did notconsider an important question relating to proof. Whiledismissing the application on the ground that there was noevidence, and that the maxim omnia praesumuntur rite esseacta could not be invoked, he did not consider whether in somecircumstances judicial notice could and should be taken of thefact that certain fundamental safeguards are generally observed.Thus if it is ever urged that an accused had been denied theequal protection of the law in a criminal trial because he wasinformed of the charge only after the verdict was given, could itbe said that in order to prove the denial of equal protectionevidence should have been led of other trials in which the chargehad been disclosed at the outset? Must not the Court takejudicial notice of the fact that in criminal trials an accused ismade aware of the charge before the trial commences? It isaccepted today that powers of appointment and dismissal areconferred on various authorities in the public interest, and notfor private benefit, that they are held in trust for the public andthat the exercise of these powers must be governed by reasonand not caprice: Bandara v. Premachandra,(supra) I am ofthe view that this Court can, and indeed must, take judicialnotice of the fact that, generally, a person holding an office whichis public in character, is not removed without legal authoritywithout cause, without complying with the audi alteram partemrule, and without notice. Since the Petitioner was not treated inaccordance with “these essential requirements of justice andfair play,” he was denied the equal protection of the law.
VIOLATION OF ARTICLE 12(2)
The Petitioner averred that the 3rd Respondent was asupporter of the Sri Lanka Freedom Party. Like every citizen he
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is entitled to his political views, and the petition he sent to thethen President in 1990 does not suggest that there was anypolitical hostility or ill-will because of his opinions. Certainly,they did not stand in the way of his being appointed a memberof the Gampaha Mediation Board in September 1991. LearnedCounsel for the Petitioner submitted that it was an OppositionMember of Parliament who had asked a question in Parliamentin 1990, but in my view from that it is not a necessary inferencethat either the question, or the action taken after the change ofgovernment, was politically motivated. The mere fact that the3rd Respondent was a supporter of the SLFP does not meanthat he was favoured. On the other hand, the Petitioner has notshown that he was removed because of his political views, as towhich we have no evidence.
The alligation of political discrimination fails.
RELIEF
I hold that, by the cancellation of the Petitioner’sappointment and the appointment of the 3rd Respondent, thePetitioner’s fundamental right under Article 12(1) has beeninfringed by the 1st and 2nd Respondents. This infringement wasset in motion by the 3rd Respondent, who made seriousallegations which he did not even attempt to prove. Thecancellation of the Petitioner’s appointment, and theappointment of the 3rd Respondent are illegal, and null and void,and are quashed. The Petitioner is entitled to function as Inquireruntil 30. 11. 96. Although the 1st and 2nd Respondents haveacted in total disregard of “the essential requirements of justiceand fairplay,” this was not because of malice or spite againstthe Petitioner; an order to pay compensation personally is notcalled for. In the circumstances, I consider it equitable to awardthe Petitioner a sum of Rs 25,000 as compensation and Rs
as costs, payable by the State.
DHEERARATNE, J. I agree.
WIJETUNGA, J.- I agree.
Relief granted.