NANDADASA v. M. S. JAYASINGHE, SECRETARY, MINISTRY OF JUSTICE AND CONSTITI

003-SLLR-SLLR-2001-V-1-NANDADASA-v.-M.-S.-JAYASINGHE-SECRETARY-MINISTRY-OF-JUSTICE-AND-CONSTITI.pdf


NANDADASA
v.
M.S. JAYASINGHE, SECRETARY. MINISTRY OP JUSTICE ANDCONSTITUTIONAL AFFAIRS AND OTHERS
SUPREME COURTFERNANDO. J.
WEERASEKERA. J. ANDISMAIL, J.
SC (FR) APPLICATION NO. 674/9724th OCTOBER 2000
Fundamental rights – Prosecution of a public officer for bribery -Disciplinary action upon acquittal – Order by the disciplinary authority -Natural justice – Chapter XLVJII of the Establishments Code – Decision ofthe Public Service Commission in appeal ■ Articles 58(2) and 12(1) of theConstitution.
The petitioner was a public officer coming within the disciplinary controlof the lsl respondent (the Secretary. Ministry of Justice) The petitionerwas prosecuted in the Magistrate’s Court on two charges, (1) for solicitingand (2) for accepting a bribe on 22.07. 1991 for performing an official actnamely, serving an injunction in his capacity of a process server attachedto the District Court of Matugama. Pending the prosecution the Is'respondent interdicted the petitioner on 02. 11. 1993. without pay. On25. 08. 1994 the Magistrate found the petitioner guilty on the first chargeand acquitted him in the second. On 15. 09. 1995 the High Courtacquitted him on the first charge well.
After the conclusion of the criminal case, the 1st respondent caused adisciplinary inquiry to be held against the petitioner under ChapterXLVIII of the Establishments Code on the same charges of bribery andon two other charges namely, acting without integrity expected of apublic officer and bringing the public service into disrepute.
The 3rd respondent (the inquiring officer) exonerated the petitioner on allthe charges, but on 27. 05. 1997 the 1st respondent found him guilty ofall the charges on the basis that the charges had been establishedbefore the Magistrate, the High Court and the disciplinary inquiry andsubjected him to two “punishments" (1) non-payment of salary withheldduring interdiction (ii) a warning. Sections 5.5 and 14.21 of ChapterXLVID of the Establishments Code require the Tribunal to submit a
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report containing findings and reasons. Those reasons and findings werenot disclosed to the petitioner. Nor did the 1st respondent disclose to thepetitioner his own findings and reasons for reversing the inquiringofficer’s findings.
Initially, the petitioner filed his application challenging the 3rdrespondent’s findings and for salary withheld during interdiction inthe belief that the 3rd respondent had found him guilty of the charges.After leave to proceed was granted it was agreed that the petitioner mayappeal to the Public Service Commission. Nearly one year later the15th respondent (the Secretary to the Commission) by letter dated08.09.1999 informed the petitioner that the Commission had confirmedthe 1“ respondent’s decision to withhold his salary for the period ofinterdiction and substituted a reduction of two increments of salary inlieu of the warning. The Commission relied on the statements of BriberyDepartment officers which had not been led at the disciplinary inquiry.It did not furnish to the petitioner or to the court its own finding,reasons or order. Whereupon the petitioner added the members of theCommission.
Held :
The lsl respondent violated the petitioner’s fundamental right underArticle 12(1), read with Article 58(2) of the Constitution.
Per Fernando, J.
“. . . Article 58(2) of the Constitution . . . allows every public officera right of appeal to the Public Service Commission against anydisciplinary order made under delegated authority. That is one of the“protections’’ which the law affords to a public officer, which must notbe arbitrarily denied or impaired, by law, regulations or executiveaction".
Per Fernando, J.
“… not only was there a grave violation of the principles of naturaljustice, but the petitioner was kept in the dark as to the case againsthim and the irregularities which had occurred, and thereby theexercise of his right of appeal to the Commission was seriouslyimpaired”
The Commission too violated the petitioner’s fundamental rightunder Article 12(1), by denying him due exercise of his right of appealunder Article 58(2) in conformity with the requirements of naturaljustice.
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APPLICATION for relief for infringement of fundamental rights.
Ms. Priyanthl Guneratne for petitioner.
U. Egctlahewa. State Counsel, for respondents.
Cur. adv. uult.
November 21, 2000.
FERNANDO, J.The Petitioner is a public officer coming within thedisciplinary control of the Secretary, Ministry of Justice. Heclaims that the adverse orders made against him. after adisciplinary inquiry held by the 3rd Respondent (InquiringOfficer, Ministry of Justice), were in violation of hisfundamental right under Article 12(1).
The Petitioner was transferred to the District Court ofMatugama as a process server with effect from 01. 12. 1989.In an action filed by one H.J.A. Siripala, that Court issued aninjunction restraining one of the defendants from proceedingwith the construction of a house. The Petitioner wasinstructed, in the course of his duties, to serve a notice ofinjunction on that defendant, which he did on 22. 07. 91. Inearly October he gave evidence in that case about the serviceof that notice as well as the state of construction of the houseat that time.
According to the Petitioner, shortly thereafter Siripalaaccosted him at the Matugama bus stand, accused himof having given false evidence, and threatened to lodge acomplaint that he had taken a bribe of Rs. 200/- in order tocarry out his official duties.
At no stage did Siripala make a complaint to the Court, thePolice or the Bribery Commissioner. It was only three monthslater, by a letter dated 16. 01. 92, that he complained to thePresidential Mobile Service that the Petitioner had takena bribe of Rs. 200/-. Having made inquiries, the BriberyCommissioner instituted proceedings against the Petitioner in
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the Magistrate’s Court of Colombo on two charges: of acceptinga bribe on 22. 07. 91 for performing an official act, and ofaccepting a sum of Rs. 200/- from Siripala, while being apublic servant – offences punishable under sections 19B and19C, respectively, of the Bribery Act.
Thereupon, by letter dated 08. 11. 93, the then Secretaryto the Ministry of Justice informed the Petitioner that he wasinterdicted without pay with immediate effect, in terms ofsection 18:5 of Chapter XLVIII of the Establishments Code(“the Code”). Despite the subsequent lapse of well over threemonths, he did not exercise the discretion (which he had interms of section 21:5(iii) of the Code) to order the payment ofat least a part of the Petitioner’s salary.
On 25. 08. 94, the Magistrate’s Court found the Petitionerguilty of the first charge, and acquitted him of the second. On
09. 95 the High Court, on appeal, acquitted him of the firstcharge as well. The prosecution made no attempt to have thatorder set aside on appeal or in revision.
On 10. 10.95 the Petitioner requested reinstatement. Thethen Secretary replied on 24. 11. 95 that he was reinstatedsubject to a disciplinary inquiry, and that a decision as to thepayment of salary withheld during interdiction would be takenafter that inquiry. It is not disputed that the Code permits adisciplinary inquiry even after an acquittal by the Courts.
A charge sheet dated 19. 03. 96 was issued. It containedfour charges, alleged to fall under Schedule A to ChapterXLVIII of the Code: that he had solicited a bribe of Rs. 250/-from Siripala; taken a bribe of Rs. 200/- from Siripala; actedwithout the integrity expected of a public officer; and broughtthe public service into disrepute.
Although I do not intend to review the findings of the twoCourts and of the disciplinary inquiry, it is necessary tostate the nature of the case that was presented against the
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Petitioner, because that was the context in which the ordersnow impugned were made. In the Magistrate’s Court, Siripala'sallegation of bribery was denied by the Petitioner, on whosebehalf it was stressed that the complaint was extremelybelated, and that Siripala was actuated by malice because theevidence which the Petitioner gave in October 1991 wasunfavourable to him. Siripala’s allegation was supported bythe evidence of one Amerasinghe, the proprietor of a hotel, whosaid that Siripala borrowed Rs. 200/- from him at that hotel,and gave it to the Petitioner in his presence; however, he didnot know for what reason it was given. The Petitioner claimedthat Amerasinghe had a grievance against him. PoliceConstable Udayakantha, of the Bribery Commissioner’sDepartment, testified that on 27. 04. 92, after recordingSiripala’s statement, it was agreed that Siripala would engagein conversation with the Petitioner, and make reference to thebribe of Rs. 200/- in Udayakantha’s hearing; and that such aconversation did take place that same day. The Petitionerrelied on certain contradictions between Udayakantha andSiripala; and in addition claimed that he did not hear Siripalamake any reference to a bribe – and a doctor gave evidence thathe had a hearing disability.
Thus in the criminal proceedings, if Amerasinghe andUdayakantha were believed, there was corroboration ofSiripala’s evidence from two different sources. Nevertheless,the High Court acquitted the Petitioner – and whether thatdecision was right or wrong was not within the purview of adisciplinary inquiry held under the Code.
Among the witnesses listed in the charge sheet dated19. 03. 96 were Amerasinghe and Udayakantha. Thedocuments listed did not include the proceedings andjudgments of the Magistrate’s Court and the High Court.
The disciplinary inquiry was held by the 3rd Respondent.It commenced on 30. 11. 96. Neither Amerasinghe norUdayakantha gave evidence. The proceedings and judgements
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of the Magistrate’s Court and the High Court were notproduced in the course of that inquiiy.
By letter dated 27. 05. 97 the 1st Respondent informed thePetitioner that upon the facts disclosed at the disciplinaryinquiry held pursuant to the charge sheet dated 19.03.96, hefound the Petitioner guilty of all the charges, and imposed two“punishments”: the non-payment of salary withheld duringthe period of interdiction, and a warning. The 1st Respondentdid not specify the facts disclosed at the disciplinary inquiry orstate what the 3rd Respondent’s findings were, nor did hefurnish a copy of his order or even state the reasons for hisfindings.
Acting in the belief (to which the 1st Respondent’s lettercontributed) that it was the 3rd Respondent who had found himguilty of the charges, the Petitioner filed this application,pleading that on the evidence led at the inquiiy the 3rdRespondent could not reasonably have found him guilty of thecharges, and asked this Court to quash those findings and todirect the payment of arrears of salary and other benefitswithheld. After leave to proceed under Article 12(1) had beengranted, it was agreed that the Petitioner may file an appealto the Public Service Commission (“the Commission”).Mr. Egalahewa very fairly stated that the Commission wouldentertain the appeal notwithstanding the lapse of time. ThePetitioner accordingly submitted an appeal dated 26. 08. 98,addressed to the Commission through the Magistrate and theSecretary, Ministry of Justice, briefly stating the facts andrequesting a variation of the punishment as well as thepayment of arrears.
The former Secretary to the Commission replied on
10.98, raising several technical objections: that the appealwas undated; that it (jlid not disclose what the charges were,what injustice the Petitioner alleged, and what relief he sought;that it did not state whether he was in service; and that if hewas in service, the appeal should be forwarded through theHead of his department. All were entirely devoid of merit.
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It was nearly one year later that, by letter dated 08. 09.99.the 15th Respondent (the present Secretary to the Commission)informed the Petitioner that the Commission had confirmedthe 1st Respondent’s decision to withhold his salary for theperiod of interdiction and had further decided to substitute areduction of two increments in lieu of the warning imposed byhim. No reasons were stated.
The petitioner then filed an amended petition, adding themembers of the Commission as respondents, and challengingtheir decision as well. The 1st and the IS01 Respondents filedaffidavits in reply. It was only then that the Petitioner wasmade aware of certain crucially important facts. The Is'Respondent’s affidavit disclosed that the 3rd Respondent hadfound the Petitioner not guilty of all the charges; however, eventhen he did not produce the 3rd Respondent’s report. While thesubstance of those findings is not in issue in this case, it is notat all surprising that without the evidence of Amerasinghe andUdayakantha the 3rd Respondent exonerated the Petitioner.
The 1st Respondent only produced the minute whichhe himself had made when refusing to accept the 3rdRespondent’s findings exonerating the Petitioner. Hismain conclusion was that in the proceedings before theMagistrate, as well as in the High Court and in thedisciplinary inquiry, it was established that the Petitionerhad received Rs. 200/- from Siripala; and that there was noevidence that that sum had not been received at Amerasinghe’shotel or that it had been received for some other purpose.
The 15th Respondent’s affidavit did not state the basis ofthe Commission’s decision. The only relevant averment wasthat “the Commission also took into consideration the fact thatofficials of the Bribery Department who gave evidence atthe Magistrate’s Court were not present to testify at thedisciplinary inquiry which finally led to his exoneration”. Shedid not produce the Commission’s decision, or even a minutethereof.
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PROVISIONS OF THE ESTABLISHMENTS CODEIt is necessary to refer to some relevant provisions ofChapter XLVIII of the Code, in regard to (a) the different typesof offences and punishments, (b) interdiction and withholdingof salary during interdiction, (c) the need for a Tribunal toinquire into, and report on, serious offences, and (d) theimposition of punishments by the disciplinary authority andthe refund of salary withheld during interdiction.
Section 16 of that Chapter distinguishes between“minor” punishments, which are “appropriate for offencesof the type similar to those in Schedule B”, and “major”punishments for offences similar to those in Schedule A.Section 16:2 provides that “minor” punishments include:
“. . . reprimand, severe reprimand or censure. (A“warning" is not a punishment). Suspension, stoppagefor a period not exceeding one year of increment. Adisciplinary transfer at the officer’s expense. A finenot exceeding one week’s pay. Any other form ofDepartmentally recognised punishment not more severethan those listed above.” [Emphasis added]
Under section 16:3, “major” punishments include:”… Dismissal. Termination of service (after disciplinaryinquiry). Retirement for general inefficiency. Retirementfor inefficiency as a merciful alternative to dismissal.Reduction in seniority (i.e. by a specified number of placesin the grade to which the officer belongs). Reduction inrank . . . Reduction of salary/deferment of increment.Deferment of promotion for a specified period.Disqualification from sitting any promotional examinationfor a specified period. Any other form of punishment ofgreater severity then those described in section 16:2.”
Appendix I to that Chapter contains a “schedule ofoffences”, which, however, is not comprehensive. Offences are
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categorized under six heads: inefficiency, incompetence,negligence, improper conduct (whether connected with anofficer’s official duties or not), indiscipline, and “lack ofintegrity”, which is defined as relating to:
”… acts or omissions arising from motives of improperpersonal gain, fraud, cheating, theft, forgery, dishonesty,concealment of the truth or portions of the truth in writingreports, suppression of documents or facts, bribery, theuse of his official position or the exercise of his officialfunctions for own private advantage or the advantage ofhis friends or relatives …”
Schedules A and B do not describe the offences whichmerit “major” and “minor" punishments. Schedule B merelyrefers in general to:
“Offences of a type which are not serious enough towarrant compulsory retirement, dismissal or a majorpunishment.”
Likewise, Schedule A refers (insofar as is relevant to thiscase) only to:
“. . . 2. Offences of the type that are serious enough towarrant dismissal or a major punishment.
Repeated offences of a type which considered singly arenot serious enough to warrant dismissal or a majorpunishment, but where repetition justifies dismissal or amajor punishment.”
Section 21:1 of that Chapter authorizes interdictionwhere criminal proceedings are pending “on charges which ifestablished are sufficiently serious to warrant dismissal”; andwhere there is a prima facie case of bribery, section 21:5(ii)provides that no emoluments shall be paid. Although section21:5(iii) does give the Secretary the discretion to authorize a
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payment (not exceeding half salaiy) if disciplinary proceedingsare not completed within three months, in this case it cannotbe said that the Secretary acted improperly in not exercisingthat discretion.
Where the offence falls under Schedule A, section5:3:1 requires the disciplinary authority to appoint a Tribunalto inquire into the charge. Section 5:4, read with section 14:21,requires the Tribunal to submit a report containing specificfindings on each charge, together with “the reasons andarguments on which the Tribunal has arrived at thesefindings”. Section 14:23 stipulates that the Tribunal shouldbase its findings solely on the evidence led before it. Section5:5, read with sections 15:1 and 15:5, empowers thedisciplinary authority to accept, reject or revise any or all thefindings of the Tribunal, and to order such punishment as hedeems fit. Section 15:2 empowers him to refer a matter backto the Tribunal for further inquiry, or even to quash theproceedings and to order a fresh inquiry.
Section 21:5(vi) provides that if the punishment isdismissal, the officer will not be paid any further emoluments.In other cases, section 15:6 applies:
“If punishment less than dismissal is imposed . . . thedisciplinary order will include an order as to whether thewhole of the emoluments withheld from him, or a specifiedproportion thereof should be paid, or whether the whole ofthe emoluments withheld should not be paid. In decidingon such an order, consideration should be given to thelength of the period of interdiction, to the extent to whichit cannot be directly attributed to the accused officer."[Emphasis added]
Section 21:5(vii) makes similar provision. Where theaccused officer is exonerated, section 21:5(viii) entitles him tobe paid the emoluments withheld.
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NON-PAYMENT OF SALARY WITHHELDMs. Guneratne submitted that the 1st Respondent shouldhave exercised his discretion (under section 15:6) in favour ofthe Petitioner who, she urged, was not responsible for thedelay. Indeed, it would seem that the 1st Respondent did nottake into consideration, as required by section 15:6, the lengthof the period of interdiction. However, there appears to be amore fundamental flaw.
The initial withholding of salary during interdiction is nota punishment. It cannot be a punishment, because it is anorder made before there is any finding of guilt. Is a subsequentorder for the non-payment of salary thus withheld apunishment? It is not among the punishments listed insection 16. But section 16 does not set out comprehensivedefinitions. If section 16 is interpreted in isolation, such anorder might be regarded as being (in terms of section 16:3) “anyother form of punishment of greater severity than thosedescribed in section 16:2.”
But section 16 must be considered in the context of otherprovisions of the same Chapter. Section 15:6 proceeds on thebasis that such an order is not itself a punishment, but ismerely a consequence of punishment. If – and only if – apunishment is imposed, then section 15:6 requires that anorder be made in respect of salary withheld. In this case,the 1st Respondent only warned the Petitioner: and section16:2 expressly states that a warning is not a punishment.Accordingly, he could not have ordered non-payment of thesalary withheld.
In the absence of an order under section 15.6, would thePetitioner be automatically entitled to the refund of the salarywithheld? Had he been exonerated, section 21:5(viii) wouldhave entitled him to a refund. However, the Code makes noprovision for the situation in which an officer is neitherexonerated nor punished (although found guilty). The fact that
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the disciplinary authority does not impose a punishment onan officer found guilty, suggests that he considered the offenceto be so trifling that no punishment was warranted. I inclineto the view that in such circumstances the Code should beinterpreted, contra proferentem and in favour of public officers,to mean that the officer would be entitled to receive the salarywithheld, but it is unnecessary to decide that question in viewof my decision that the findings of guilt must be quashed.
1st respondent s findings and order
The Petitioner had been charged with a serious offenceunder Schedule A, i.e. one warranting dismissal or a majorpunishment. The very fact that the 1st Respondent did notimpose a major punishment – and, indeed, imposed nopunishment at all – gives rise to serious questions as to hisfindings.
Bribery, and indeed any form of corruption and lack ofintegrity, on the part of officers entrusted with dutiesconnected with the administration of justice – even if they arenot directly performing judicial functions – undermines thejudiciary, diminishes its ability to administer justice, anderodes public confidence. It is a matter of common knowledgethat various forms of bribery and corruption are rampant.Accordingly everyone, and certainly officers of the Ministry ofJustice, must endeavour to eradicate bribery and corruption,by every means: prevention, investigation, prosecution andpunishment. It is very easy to make allegations of bribery andcorruption against Judges and other officers engaged in theadministration of justice, but it is very difficult to substantiatethem. If the 1st Respondent had honestly considered that thePetitioner was guilty of bribery as charged, was a warning andthe deprivation of salary during interdiction appropriate oradequate? The leniency of the “punishment” which the 1stRespondent imposed shows that he either did not appreciatethe need to eradicate bribery and corruption or did not reallybelieve that the offences had been duly proved.
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I must now turn to the 1st Respondent's findings andorder. These must be considered in the context of Article 58(2)of the Constitution, which allows every public officer a rightof appeal to the Public Service Commission against anydisciplinary order made under delegated authority. That is oneof the “protections” which the law affords to a public officer,which must not be arbitrarily or unreasonably denied orimpaired, by law, regulations or executive action. A publicofficer will not be able, effectively, to exercise that right ofappeal unless he is informed of the findings against him(whether of fact or law) and the reasons therefor, and 1hold that that is a necessary implication of Article 58(2).Consistently with that, sections 5:5 and 14:21 of the Coderequire the Tribunal to submit a report containing findingsand reasons. Although the Code does not expressly so provide,those findings and reasons must be disclosed to the officer. Ifnot, how can he effectively present an appeal, stating whichfindings and reasons are wrong, and why they are wrong? Itfollows, further, that if the disciplinary authority reversesthose findings, he too must disclose his findings and reasons,for otherwise an appeal will be nugatory.
In this case, when communicating his decision to thePetitioner the 1st Respondent did' not, straightforwardly,disclose to the Petitioner that the 3rd Respondent hadexonerated him and the reasons therefor. Further, he statedthat his findings were based on the facts disclosed at thedisciplinary inquiry – deliberately concealing the fact that hehad acted on material disclosed in the criminal proceedings,which formed no part of the evidence led against the Petitionerat the disciplinary inquiry. It was not permissible for thedisciplinary authority to consider evidence not led at thedisciplinary inquiry. If he was of the view that such evidenceshould be considered, he should have referred the matter backto the 3rd Respondent or ordered a fresh inquiry (under section15:2). Whatever procedure was adopted, natural justicedemanded that before any finding was made on the basis ofnew evidence, the Petitioner should have been given an
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opportunity of being heard. The fact that section 14.23expressly requires the Tribunal to base its findings solely onthe evidence led before it, and makes no reference to thedisciplinary authority, makes no difference: that merelyre-states one requirement of natural justice, and thatrequirement would have applied even without section 14:23.
In the result, not only was there a grave violation of theprinciples of natural justice, but the Petitioner was kept in thedark as to the case against him and the irregularities whichhad occurred, and thereby the exercise of his right of appeal tothe Commission was seriously impaired.
I therefore hold that the Is* Respondent violated thePetitioner’s fundamental right under Article 12(1), read withArticle 58(2), and that the nature and extent of that violationwas such that he should pay the Petitioner’s costs.
PUBLIC SERVICE COMMISSION ORDERThe Commission took nearly an year to decide. The 15thRespondent’s affidavit mentions only one matter which theCommission took into account: that the prosecution did notlead the evidence of Bribery Department officials at thedisciplinary inquiry. It is clear that this was consideredadversely to the Petitioner, either as confirming guilt or asjustifying enhanced punishment. That was unreasonable.
The flaws which vitiated the 1st Respondent’s findings andorder would have been manifest to the Commission from thePetitioner’s personal file. Nevertheless, the Commissionneither informed the Petitioner of what had actually takenplace nor gave him an opportunity of challenging the ls(Respondent’s findings, reasons, and order. Neither the 15thRespondent’s affidavit nor the documents produced suggestthat the Commission even considered the several flaws in thelsl Respondent’s order before confirming that order; andaccordingly its own order is vitiated by those flaws. That
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affidavit also stated that the Commission “examines . . . theobservations of the . . . Secretary on the averments in theappeal”. It appears that the Petitioner was not informed evenof those observations. Finally, the Commission did not furnishthis Court or the Petitioner with its own findings, reasons andorder.
I hold that the Commission too violated the Petitioner'sfundamental right under Article 12(1), by denying him the dueexercise of his right of appeal under Article 58(2) in conformitywith the requirements of natural justice.
ORDERI hold that the Petitioner’s fundamental right under Article12(1) has been violated by the 1st Respondent as well asthe Public Service Commission, and quash the orderscommunicated to the Petitioner by letters dated 27. 05. 97 and08. 09. 99. The Petitioner will be entitled to (a) the salarywithheld during the period of interdiction, together withsimple interest at 15% p.a. from 27. 05. 97 up to date ofpayment; (b) compensation in a sum of Rs. 100,000 payable bythe State; and (c) costs in a sum of Rs. 10,000 payablepersonally by the 1st Respondent.
WEERASEKERA, J.I agree.
ISMAIL, J.I agree.
Relief granted.