053-SLLR-SLLR-2006-V-2-MENDIS-vs.-BERTY-PREMALAL-DISSANAYAKE-AND-OTHERS.pdf
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MENDISvs
BERTY PREMALAL DISSANAYAKE AND OTHERSCOURT OF APPEAL.
SR1SKANDARAJA. J.
CA 2416/2004.
FEBRUARY 9, 2006.
Writ of Mandamus- Suspension of Chairman/Member of a PradeshiyaSabawa after a Commissioner has been appointed to inquire intocharges – No New material – Validity? Pradeshiya Saba Act, 15 of 1987-Section (1), (2) (3).
The petitioner sought a Writ of Certiorari to quash the decision ofthe 1 st respondent – Chief Minister to suspend the petitioner as memberand Chairman of the Thalawa Pradeshiya Sabawa. The petitioner wasissued with a charge sheet containing 11 charges for acting contraryto certain Rules of the Finance and Administrative Regulations of thePradeshiya Sabha. The 2nd respondent was appointed as a “One manCommission" to inquire into the charges on 30.04.2004. The chargeswere amended and on the amended charges the inquiry commencedon 22.07.2004. The 1st respondent Chief Minister thereafter suspendedthe petitioner as member and Chairman of the Sabha by his orderdated 06.08.2004 ; three months after the appointment of the “Oneman Commission”.
HELD:
The Minister has discretion to suspend the Chairmandepending on the circumstances of each case- Section185(3)clearly lays down the point in time the Minister could exercise
CA
Mendis vs
Berty Premalal Dissanayake and others (SriSkandarajah. J.)
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his discretion i.e. the time of appointing a retired judicial officerunder 185 (2).
The Minister has not taken steps with regard to suspensionat the time of appointing a retired judicial officer and hadallowed the Chairman to function even after the saidappointment, which shows that the Minister was of the opinionthat there is no imminent damage or break down In theadministration of the Sabha and prompt action was notnecessary.
If the Minister had not formed an opinion at the time ofappointing a judical officer, he cannot on a subsequent timeform such an opinion without any new material that warrantsanother inquiry.
AN APPLICATION for a Writ of Certiorari.
Upul Jayasuriya with P. Radhakrishnan for petitioner
M. K. Arulanartdan DSG for 1st, 3rd and 5th respondents.
Cur. adv.vult.
20th March, 2006.
SRISKANDARAJAH. J.The Petitioner in this application has sought a writ of Certiorarito quash the decision of the 1st Respondent to suspend thePetitioner as member and Chairman of the Thalawa PradeshiyaSabha by his Order published in the Gazette No. 1352/34 dated
Marked P8. He has also sought a writ of Certiorari to
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quash the decision of the 1st Respondent to appoint the 2ndRespondent as the Commission of Inquiry and any decision or reportthe 2nd Respondent may issue. This relief was not perused by thePetitioner when this matter was taken up for argument.
The Petitioner submitted that he was elected in the LocalGovernment Elections in March 2002 as a member and wasappointed as the Chairman of the Thalawa Pradeshiya Sabha. Hesubmitted that he was discharging his duties diligently and he hasalways complied with all the laws, rules and regulations governingthe Sabha. He further submitted that the 1st Respondent is hispolitical rival as the Petitioner contested the General Electionsagainst the son of the 1st Respondent in a different political party.He lost the election and after the announcement of the result, hewas arrested by the Police on 03.04.2004 based on false complains.He was enlarged on bail by the Magistrate’s Court on 22.04.2004.The Petitioner submitted that he was issued with a charge sheet(P2) by the 1st Respondent acting under Pradeshya Sabhas ActNo.15 of 1987 on 08.04.2004 containing 11 charges, alleging thatthe Petitioner is guilty of acting contrary to one or more Rules 177to 179 and 208 of the Financial and Administrative Regulations ofPradeshiya Sabhas. The 1st Respondent by his letter dated30.04.2004 (P4) intimated the appointment of the “One ManCommission" to inquire in to the charges served on the Petitioner.
The 1st Respondent admits the fact that a “One ManCommission” was appointed to inquire in to the charges againstthe Petitioner on 30.04.2004 and submitted that the charges wereframed on an investigation of the Commissioner of Local Governmentacting in terms of the Pradeshya Sabhas Act. The 2nd Respondent‘One Man Commission’ thereafter reframed the charges and servedon the Petitioner on 04.06.2004 which contains 8 charges (P6).
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Berty Premalal Dissanayake and others (SriSkandarajah. J.)
The 2nd Respondent commenced the inquiry on 22.07.2004. ThePetitioner while the inquiry was pending invoked the jurisdiction ofthe Provincial High Court to issue a writ to quash the appointmentof the 2nd Respondent as Commission of Inquiry and to stay th.einquiry proceedings. Thereafter the 1st Respondent by an orderdated 06.08.2004 published in the Gazette suspended thePetitioner’s membership and Chairmanship of the said PradeshyaSabha. After the suspension of the Petitioner’s membership andChairmanship an amended Petition was filed in the Provincial HighCourt arid an interim relief was sought to stay the operation ofsuspension. As the Petitioner was not successful in obtaining aninterim relief he withdrew the said application and filed thisapplication.
The learned D. S. G. submitted that the Petitioner is not entitledin invoke the jurisdiction of this Court as he has already invokedthe jurisdiction of the Provincial High Court in the same matter.Even though the Petitioner has sought the same relief in theProvincial High Court the counsel for the Petitioner in this courtrestricted his relief to prayer (c) of the Petition filed in this case.As the application before the Provincial High Court was withdrawnwith liberty to file fresh application and as the Provincial High Courthas not gone into the merits of the application and as this Courthas concurrent jurisdiction to hear and determine this applicationthis Court over rules the objection of the learned counsel for theRespondents and proceeds to consider the merits of thisapplication.
It is an admitted fact that the charges against the Petitionerwere framed and served on 08.04.2004 containing 11 charges. The2nd Respondent was appointed as a ‘One Man Commission’ toinquire into the charges against the Petitioner on 30.04.2004. The
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charges were amended and on the amended charges the inquirycommenced on 22.07.2004. It is also admitted that the 1stRespondent suspended the Petitioner as member and Chairman oftheThalawa Pradeshiya Sabha by his Order published in the GazetteNo. 1352/34 dated 06.08.2004, Marked P8, three months after theappointment of the ‘One Man Commission’
It is relevant at this point to consider the relevant provisions oflaw.
Section 185 of the Pradeshiya Sabhas Act provides :
185. (1) If any time the Minister is satisfied that there is sufficientproof of –
incompetence and mismanagement, or
persistent refusal or willful neglect to perform the dutiesimposed by this act, or
misconduct in the performance of those duties, or
persistent disobedience to or disregard of the directions,instructions or recommendations of the Minister, or theCommissioner, or
abuse of the powers conferred by this Act on the part ofthe chairman of a Pradeshiya Sabha or any of theMembers of the Pradeshiya, Sabha,
the Minister may as the circumstances of each case mayrequire, by Order published in the Gazette.
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remove the Chairman from office, or
remove all or any of the members frorri office ; or
dissolve the Pradeshiya Sabha
and such Order shall as soon as may be convenient be laidbefore Parliament
The Minister shall before making an Order under subsection(1), appoint, for the purpose of satisfying himself in regard to anyof the matters referred to in subsection (1), a retired judicial officerto inquire into and report upon such matter within a period of threemonths, and such officer shall in relation to such inquiry have thepowers of a Commission of Inquiry appointed under theCommissions of Inquiry Act.
(a) When the Minister appoints a retired Judicial officer undersubsection (2) to inquire into any matter, the Minister may, as thecircumstances of each case may require, by Order published inthe Gazette-
suspend the Chairman from office and direct the ViceChairman or, where the office of the Vice-Chairman isvacant or where the Vice- Chairman has been suspended,the Assistant Commissioner of the region, to exercise thepowers and perform the duties of the Chairman; or
suspend any of the members from office ; or
suspend the Pradeshiya Sabha and direct the AssistantCommissioner of the region to exercise the powers andperform the duties of that Pradeshiya Sabha and itsChairman.
2-CM 8104
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(b) Upon the receipt of the report of the person appointed undersubsection (2), the Minister may make an Order under subsection
or revoke the Order made under paragraph (a) of thissubsection.
Where the Minister removes any member of a PradeshiyaSabha from office by Order under subsection (1), the memberappointed in place of such member who is removed, shall holdoffice for the unexpired period or portion of the term of office ofhis predecessor.
(7)Section 185 (3) specifically provides that when the Ministerappoints a retired judicial officer under subsection (2) to inquireinto any matter, the Minister may, as the circumstances of eachcase may require by order published in the Gazette suspendthe Chairman from office.
By this provision the Minister has discretion to suspend theChairman depending on the circumstances of each case.Suspension may involve hardship and may cast a slur on thegood name and reputation of a duly elected member of a localauthority ; as such the discretion must be exercised reasonablyand with circumspection. But this subsection has clearly laiddown the point in time the Minister could exercise his discretion/. e. at the timeof appointing a retired judicial officer
CAMendis Vs. Berty Premalal Dissanayake and Others409
(Srikandarajah, J.)
under subsection (2). the specification of this time has a purpose;that the Minister appoints a retired judicial officer to satisfy himselfwith regard to any of the matters referred to in subsection(1 )(a) to
, these matters are of serious nature. The suspension is due toan exceptional situation which plainly call for swift and immediateaction; action directed to prevent a beakdown in the administrationof the Sabha; that the circumstances call for {he suspension ofthe Chairman from office in order to control the maladministration.In other words, what is envisaged is a state of affairs which call forprompt action in order to arrest a rapidly deteriorating situation,lest there be a breakdown in the administration of the Sabha.Therefore the Minister is given a discretion to suspend the Chairmanat the time of the appointment of the retired judicial officer to inquireinto the matters in issue. At the time of this appointment the Ministerwas aware of the allegations and the charges against the Chairmanand the Minister was in a position to decide whether thoseallegations and charges are so serious that warrants the suspensionof the Chairman. But the Minister has not taken any steps withregard to suspension at the time of appointing a retired judicialofficer to inquire into the allegations and the charges against theChairman and allowed the Chairman to function even after theappointment of a retired judicial officer, that shows that the ministerwas of the opinion there is no imminent danger or breakdown theadministration of the Sabha and prompt action was not necessary.If the Minister had not formed an opinion at the time of appointinga retired judicial officer that the suspension of the Chairman wasnecessary, he cannot on a subsequent time, in this case afterthree months, form such an opinion without any new material thatwarrants another inquiry. The Respondents have not taken up theposition that they had new material to suspend the Chairman on asubsequent day. For the aforesaid reasons the Ministers decisionto suspend the Chairman without additional material on a date
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subsequent to the appointment of the retired officer the "One ManCommission" is illegal and unreasonable. Therefore this Courtissues a writ of Certiorari quashing the decision of the 1stRespondent to suspend the Petitioner as a member and Chairmanof the Thalawa Pradeshiya Sabha published in Gazette No. 1352/'34 dated 06.08.2004. The court makes no order with regard to costs.
Application allowed.