PASKARALINGAM BY HIS ATTONEY-AT-LAW v. P. R. P. PERERA AND OTHERS

021-SLLR-SLLR-1998-V-2-PASKARALINGAM-BY-HIS-ATTONEY-AT-LAW-v.-P.-R.-P.-PERERA-AND-OTHERS.pdf


SC Paskaralingam by his Attomey-at-taw v. P. R. P. Perera and Others 169
PASKARALINGAM BY HIS ATTORNEY-AT-LAW
v.P. R. P. PERERA AND OTHERS
SUPREME COURTG. P. S. DE SILVA C.J.
WIJETUNGA, J. ANDGUNASEKERA, J.
SC. SPECIAL (WRIT) NO. 4/97CA APPLICATION NO. 773/9723RD AND 24TH MARCH 1998
Writ of Certiorari – Decision of the Special Presidential Commission of Inquiry- Failure of one of the Commissioners to participate in making the .impugneddecision – Jurisdiction of the other Commissioners to make the decision -S. 3 of the Special Presidential Commissions of Inquiry Law, No. 7 of 1978.
The President by warrant dated 2.2.95 appointed the 1 st, 2nd and 3rd respondentsto inquire into matters mentioned in the said warrant. One of the matters inquiredinto was an allegation against the petitioner as the Secretary, Ministry of Financeand Secretary to the Treasury in respect of a contract to purchase bus chassisand body kits from Ashok Leyland Ltd. The Commission commenced sittingson 20.4.95 and concluded the inquiry on 19.12.96 during which period there were33 sittings out of which the 3rd respondent was not present only on 5 occasions,after 12.11.96, because on 13.11.96 he was hospitalised with a heart ailment.The 3rd respondent, by a letter dated 18.11.96 addressed to the President offeredto resign but the Secretary to the President by a letter dated 28.11.96 informedhim that he could continue to reman a member and take part in proceedingswhen his health improved. The 3rd respondent remained a member of theCommission and in fact recommenced to attend the sittings of the Commission,later on. In the meantime, the date for the final report of the Commission wasenlaged from time to time and finally, until 16.3.89, and the Commission madean interim report dated 2.3.97 which contained inter alia, a finding against thepetitioner and a recommendation that he be subject to civic disability. The 3rdrespondent did not participate in making that decision and the interim report wassigned only by the 1st and 2nd respondents. The report states that the 3rdrespondent was unable to participate in the proceedings of the Commission after12.11.96 due to ill-health on medical advice. Hence the proceedings were continuedbefore the 1st and 2nd Commissioners in terms of s. 3 (2) of Law No. 7 of 1978.However, the petitioner produced evidence to establish that the 3rd respondenthad functioned as a single judge in the Court of Appeal on 10 days in January,1997 and 18 days in February, 1997.
170
Sri Lanka Law Reports
(1998) 2 Sri LR.
Held: (G. P. S. de Silva, C.J. dissenting)
S. 3 (2) of the Law operates only if one of the five situations set out ins. 3 (1) exists. One such situation is where a member of the Commissionhas become unable to act. The material placed before the Court did not indicatethat the situation relied upon namely, that the 3rd respondent was unable toparticipate in the decision-making process in regard to the petitioner between19.12.96 and 2.3.97. In the result while the three Commissioners continuedto be members of the Commission at all times relevant, only two of themparticipated in the decision-making process, consequently, the interim reportwas without jurisdiction.
Per Wijetunga, J.
“What is repugnant to the principles of natural justice is that only two outof the three Commissioners who held the inquiry chose to express their views.Such a report cannot, in my view, be considered a report of the Commission,as contemplated by law."
Cases referred to:
Wijerama v. Paul 76 N.L.R 241.
In the Beck and Jackson (1857) 1 CB(NS) 695.
Parr v. Winteringham the Jurist Reports (1859) Vol. 5 Part I, 787 (CB).
Morris v. Gestetner Ltd. 1973 (1) WLR 1378 (NIRC).
Regina v. Kensington and Chelsea Rent Tribunal Exp. Mac Farlane 1974(1) WLR 1486 (QB).
Chief Constable of North Wales Police v. Evans (1982) 3 All ER (HL) 141.
AN APPLICATION for a Writ of Certiorari against the Special Presidential
Commission of Inquiry.
Ranjith Abeysuriya P.C. with D. S. Wijesinghe P.C., Sanjeewa Jayawardena and
Miss. P. Dias for the petitioner.
S. N. Silva P.C. A. G. with K. C. Kamalasabyason P.C. ASG and Uditha Egalehewa
S.C. for the respondents.
June 22, 1998
P. S. DE SILVA, C.J.
Cur. adv. vult.
By Warrant dated 2.2.95 the President established a "SpecialPresidential Commission of Inquiry 1995" (Commission) in terms ofsection 2 of the Special Presidential Commissions of Inquiry Law, No.7 of 1978. The first respondent was appointed as the Chairman andthe 2nd and the 3rd respondents as members of the Commission.
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(G. P. S. de Silva, C.J.)171
One of the matters inquired into by the Commission (Inquiry No.3/95B) were the allegations against the petitioner, former Secretaryto the Ministry of Finance and Secretary to the Treasury, in respectof a contract to purchase bus chassis and body kits from AshokLeyland Ltd. In his present application for a Writ of Certiorari, thepetitioner's complaint is that the Fourth Interim Report dated 2.3.97submitted by the Commission to the President, which contained find-ings and recommendations adverse to the petitioner, was signed bythe 1st and 2nd respondents but not by the 3rd respondent (Justice
N. D. Jayasuriya). Mr. Abeysuriya for the petitioner strenuouslycontended before us that the President having appointed threeCommissioners, the failure of one of the Commissioners (the 3rdrespondent) to participate "in the decision-making process" (to usecounsel's own words) and his failure to sign the Interim Reportrendered the Interim Report one made without jurisdiction and of noforce or avail in law. Counsel strongly urged "that such report andrecommendation was not in law the act and deed of that SpecialPresidential Commission which has been appointed by the Warrantdated 2.2.95".
It is not disputed that the 3rd respondent who was one of theCommissioners appointed by the President did not sign the InterimReport. It was signed only by the Chairman (1st respondent) and oneof the Commissioners (2nd respondent). It is also not disputed thatthe 3rd respondent was present and participated in the Inquiry fromits commencement upto the 12th of November, 1996. After the 12thof November, 1996 the 3rd respondent was not present. The inquiry,however, continued on 22.11.96, 25.11.96, 26.11.96, and 28.11.96before the 1st and 2nd respondents and on these dates counsel forthe petitioner cross-examined two additional witnesses called by theCommission.
The question arises as to why the 3rd respondent failed to par-ticipate in the inquiry after the 12th of November, 1996? It is commonground that the 3rd respondent fell seriously ill on the 13th of November1996 and on that date he was warded at the Intensive Care CardiologyUnit of the National Hospital, Colombo. He remained in hospital till
In his affidavit filed in these proceedings the 3rd respondent
172
Sri Lanka Law Reports
(1998) 2 Sri LR.
avers that he was discharged from hospital “on the strict assuranceand promise of strict bed rest at home . . . During those periods Iwas so grievously ill that I could not have engaged in my work, withoutimminent risk to my life”.
Admittedly, on 18.11.96 the 3rd respondent tendered to the Presi-dent his letter of resignation from “the post of Commissioner" (3R1).The reason for his resignation stated in 3R1 is that “the doctors haveadvised a detailed investigation and a period of complete bed restthereafter, to overcome risk to my life." (emphasis added). However,the Secretary to the President by 1R1 dated 28.11.96 informed the3rd respondent that he “can continue to remain a member of theCommission and take part in its proceedings again, when your healthpermits you do so." It was the submission of Mr. Abeysuriya that 1R1clearly shows that the 3rd respondent's letter of resignation (3R1) wasnot accepted by the President and that the 3rd respondent continuedto be a member of the Commission.
As submitted by Mr. Abeysuriya, "the key to the decision" of thequestion that arises in this case is section 3 of the Special PresidentialCommissions of Inquiry Law, No. 7 of 1978. Mr. Abeysuriya describedsection 3 as the "pivotal provision" and it reads thus:
"(3) (1) Where any member of a commission dies or resigns,or desires to be discharged from the performance of his dutiesin respect ofthe whole or part of an inquiry, or refuses or becomesunable to act, the President may appoint a new member in hisplace for the whole or any part of such inquiry.
(2) Until such appointment is made, the inquiry may continuebefore the remaining members of the commission, and if no suchappointment is made, the inquiry shall continue and beconcluded before the remaining members of the commission.
Where a new member has been appointed under theprovisions of subsection (1) it shall not be necessary for anyevidence which may have been taken before the commission priorto such appointment to be retaken and the commission shall be
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others(G. P. S. de Silva. C.J.)J73
entitled to continue its proceedings from the stage at which theywere immediately prior to such appointment:
Provided, however, that where a commission consists of onlyone member, the inquiry shall commence de novo."
On a fair reading of the affidavits of the 1st and 3rd respondentsfiled of record, there is little doubt that the 3rd respondent was unableto continue to discharge his functions as a member of the Commissionby reason of a serious illness. In other words, it was a situation wherethe 3rd respondent became "unable to act" within the meaning ofsection 3 (1). This position is strongly supported by what is expresslystated by the 1st and 2nd respondents in the Interim Report itself.The statement which appears at page 7 of the Interim Report readsthus: 'Commissioner Justice F. N. D. Jayasuriya who was a memberof this commission appointed under the Warrant establishing theSpecial Presidential Commission was unable to participate in theproceedings of the Commission after the 12th of November, 1996 dueto ill-health on medical advice. The proceedings were thereaftercontinued before the Chairman and Commissioner Justice H. S. Yapain terms of section 3 subsection 2 of the Special Presidential Com-missions of Inquiry Law, No. 7 1978". (emphasis added). It is to benoted that this is a contemporaneous record made by the 1st and2nd Commissioners long before the petitioner filed the presentapplication for a Writ of Certiorari.
As stated earlier, after the 3rd respondent was hospitalized on
the inquiry proceeded on several dates before the remainingtwo Commissioners (the 1st and 2nd respondents). It is intenselyrelevant to note that no objection whatever was taken on behalf ofthe petitioner to the inquiry proceeding in the absence of the 3rdrespondent. In other words, the decision of the remaining two Com-missioners to continue with the inquiry was not challenged. Indeed,at the hearing before us Mr. Abeysuriya conceded that there was noimpediment to the inquiry proceeding before the 1st and 2nd respond-ents.
174
Sri Lanka Law Reports
(1998) 2 Sri L ft
Admittedly, the President did not appoint a new member in placeof the 3rd respondent. Accordingly section 3 (2) comes into operation- "the inquiry shall continue and be concluded before the remainingmembers of the Commission". The learned Attorney-General rightlydrew our attention to the significant difference in the language betweenthe earlier part of section 3 (2) and the latter part of the section -". . . the inquiry may continue before the remaining members", andthe succeeding words “the inquiry shall continue and be concludedbefore the remaining members". It was also pointed out to us by thelearned Attorney-General that there is no provision similar to section3 (2) in the Commissions of Inquiry Act on which Law No. 7 of 1978is largely based. In my view it is a new provision the object of whichis clearly to ensure the continuation of the proceedings.
The affidavits of the 1st and 3rd respondents and the statementat p^ge 7 of the Interim Report (referred to above) clearly establishthe sequence of events. The 3rd respondent was admitted to hospitalwith a serious illness on 13th November, 1996. The President wasinformed of that fact on 18.11.96. Section 3 (1) vests in the Presidenta discretion to appoint a new member in place of the 3rd respondentwho was taken ill. The remaining two Commissioners decided toproceed with the inquiry in the absence of the 3rd respondent. ThePresident in the exercise of her discretion did not appoint a newmember and so the inquiry continued and was concluded before theremaining two Commissioners. This is precisely what is provided forin section 3 (2).
Mr. Abeysuriya, however, contended that it was the President andthe President alone who has the power to decide whether theremaining two members were entitled to continue and conclude theinquiry. With this contention, I am afraid I cannot agree. It is incon-sistent with the plain meaning of sections 3 (1) and 3 (2). The openingwords of section 3 (2) : "Until such appointment is made the inquirymay continue before the remaining members of the Commission" tomy mind show that the decision whether the inquiry should continueor not rests with the two remaining members of the Commission. Inthis conncection it is relevant to bear in mind that in terms of section2, the members of the Commission shall consist of Judges “of the
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(G. P. S. de Silva, C.J.)175
Supreme Court or of any other court not below a District Court". Assubmitted by the learned Attorney-General, the President plays no partwhatever in the decision whether the inquiry should continue beforethe remaining members of the Commission. Having regard to thescheme of the statute, it is certainly not a decision which couldappropriately be left to the President. The only discretion vested inthe President relates to the appointment of a new member in the placeof the member who “becomes unable to act". It seems to me thatthe submission of the learned Attorney-General that section 3 (2) hasto be read independently of section 3 (1) is well-founded. Section 3(1) sets out the circumstances in which the "President may appointa new member". Section 3 (2) however "operates" independently ofany action that the President may take in terms of section 3 (1). Ihold that the decision to continue with the inquiry was in terms ofsection 3 (2) in the exercise of the discretion vested in the remainingtwo members of the Commission. As stated earlier, there was nochallenge to the exercise of the discretion vested in the two remainingCommissioners. On the other hand, there was acquiescence on thepart of the petitioner in the continuation of the proceedings. In anyevent, the language in section 3 does not warrant the constructioncontended for by Mr. Abeysuriya.
In an effort to whittle down the "seriousness" of the illness of the3rd respondent, Mr. Abeysuriya relied on the draft minutes of the Courtof Appeal which revealed that the 3rd respondent had sat in the Courtof Appeal as a “single Judge" on several dates in the months ofJanuary and February, 1997. I do not think that this fact detracts fromthe position of the 3rd respondent that he had become unable tofunction as a member of the Commission by reason of his grave illness.The preparation of the Interim Report would undoubtedly involve theclose study of a considerable volume of evidence and the considerationof complicated questions of fact. It was not suggested that theoccasions on which the 3rd respondent sat in the Court of Appealinvolved strenuous work and study. The fact remains that the 3rdrespondent suffered from a grave illness which could haveendangered his life.
176
Sri Lanka Law Reports
(1998) 2 Sri L.R.
Mr. Abeysuriya laid much emphasis on the fact that the correspond-ence (3 R1 and 1 R1) shows that the letter of resignation was notaccepted by the President. But this fact is of little or no significancesince the true basis of the decision of the two remaining membersof the Commission to continue with the inquiry is expressly statedat page 7 of the Interim Report (referred to above). The 1st and2nd respondents had addressed their minds to the relevant questionat the material point of time.
Finally, I must refer to the case of Wijerama v. Paul(l> strongly reliedon by Mr. Abeysuriya. That case has little or no relevance to the issuebefore us, for the court was there not dealing with a statutory provisionwhich was even remotely similar to section 3 of Law No. 7 1978.There is however an observation made by T. S. Fernando, J., in thecourse of his judgment which is not without relevance to the presentcase. "Alles, J. has held that a Judge who has not heard a materialpart of the case becomes disqualified from continuing as a Judge.While a proposition of that nature baldly stated is not unacceptable,it often becomes a difficult task to decide what is such a materialpart", (at page 250). Admittedly, in the case before us the 3rdrespondent was absent on four days when two additional witnessescalled by the Commission were cross-examined.
For these reasons I hold that the non-participation of JusticeF. N. D. Jayasuriya (the 3rd respondent) in the proceedings after 12thNovember, 1996 and his failure to place his signature on the InterimReport do not render the Report one made without jurisdiction. Theapplication is accordingly dismissed but, in all the circumstances,without costs.
WIJETUNGA, J.
I have had the advantage of reading in draft, the judgment of MyLord the Chief Justice. I regret very much that I am unable to agreewith him.
Notice was issued on the respondents only on the following questionof law:
SC Paskaralingam by his Attorney-at-law v. P. ft P. Perera and Others
(Wijetunga, J.)177
"Does the non-participation of Justice F. N. D. Jayasuriya renderthe interim report one made without jurisdiction?"
It is, therefore, unnecessary to go into the facts relating to thisinquiry.
In the written submissions filed on behalf of the respondents, itis claimed that it was grave misconduct on the part of the petitionerto reiterate in the counter affidavit, the averments set out in paragraph54 of his original affidavit, despite the categorical denial by the 1stand 3rd respondents and that the said serious misrepresentationwarrants dismissal of this application in limine.
The petitioner, in paragraphs 54 (b) and (c) of his original affidavitdated 27.9.97 had averred that the 3rd respondent had continuouslyparticipated in the proceedings even after 12.11.96, though the reportstates otherwise and that he did participate in the proceedings on
25.11.96 and 26.11.96.
The 1st and 3rd respondents, in their affidavits dated 23.1.98 and11.1.98 respectively, state that the 3rd respondent had not participatedin any proceedings after 12.11.96 on account of ill-health. The 1strespondent however states that: “even though the 3rd respondent didnot sit, his name appears in the proceedings of a few dates as thatparticular stenographer who maintained the record of the proceedingson those dates specified the names of all the members of theCommission".
The 1st respondent has annexed an affidavit from the Secretaryof the Commission marked (1R2). In that affidavit, the Secretary statesinter alia that: "some of the proceedings after 12th November, 1996,contained the name of the 3rd respondent although he was not presentafter the said date and did not participate in the said proceedings".He further states that: "the last public sitting in which the 3rd respond-ent participated was on 12th November, 1996; and that according tothe summaries prepared by me he did not participate at any publicsittings till 29th April, 1997".
178
Sri Lanka Law Reports
(1998) 2 Sri LR.
It is thus apparent that the averment in the petitioner's originalaffidvit was in consequence of a mistake on the part of the Com-mission's stenographer who included the names of all the membersof the Commission in the record of the proceedings, though the 3rdrespondent did not participate in the proceedings after 12.11.96.
When the petitioner filed his counter-affidavit dated 12.3.98, hestated that: “answering paragraph 3 of the 3rd respondent's affidavit,
I reiterate the averments contained in paragraph 54 of my originalaffidavit". He made a similar averment in respect of the 1st respond-ent's affidavit too.
Paragraph 3 of the 3rd respondent's affidavit states as follows: “Ispecifically deny the averments of paragraph 54 of the said affidavitinsofar as the averments contained therein relate to the matter inrespect of which notice was issued by Your Lordship's Court". The1st respondent too has made a similar denial in his affidavit.
It is relevant in this context to advert to the nature of the avermentscontained in paragraph 54 of the petitioner's original affidavit. He statesinter alia that: “I am advised to state and verily believe that thepurported adverse findings arrived at by the 1st and 2nd respondentsin respect of the allegations/charges preferred against me and thesubsequent recommendations made by the said respondents to HerExcellency the President of the Democratic Socialist Republic of SriLanka are illegal, null and void and of no force or avail in law" andsets out the reasons therefor in 56 sub-paragraphs. The matterreiterated to which objection has been taken is contained in just onesub-paragraph thereof viz (c) of the original affidavit.
When the learned Attorney-General pointed out at the hearing thatthere, was no express admission by the petitioner in his counter-affidavit of the fact that the 3rd respondent had not participated inthe public sittings held on the three dates aforementioned, learnedcounsel for the petitioner categorically stated that the petitioner wasconceding the fact that the 3rd respondent had not participated inthe proceedings after 12.11.96, since the mistake made in the recordof the proceedings had been explained. He said that the petitioner
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(Wijetunga, J.)179
was guided by the record of the proceedings when he made the saidreference and regretted the lapse in the counter-affidavit.
In the written submissions of the petitioner dated 18.5.98 it is furtherstated as follows:
"14. It is most respectfully pointed out to Your Lordships, thatit is clearly implicit in paragraphs 14, 15 and 16 of the counter-affidavit of the petitioner, that the petitioner was conceding the factthat Justice Jayasuriya had not, as asserted by him, functionedas a member of the Commission after the 12th of November, 1996.
On behalf of the petitioner himself and all the other lawyersassociated with the preparation of the counter-affidavit, we wishto assure Your Lordships that once the actuai position was madeclear by Justice Jayasuriya in his affidavit, no attempt whatsoeverwas made in any way to doubt the correctness of his assertionthat he had been hospitalised on the 13th of November, 1996.
We wish to add that if as a result of failing to expresslyadmit that factual assertion made by Justice Jayasuriya, an op-portunity had been given for the learned Attorney-General to haveraised that matter, we wish to express our deep regret for thatlapse.
We wish also to state that the original assertion made inthe main affidavit that Justice Jayasuriya had sat as a memberof the Commission on 21st, 22nd and 25th November, 1996, hadbeen made by us purely on the basis of what we assumed tobe the correctness of the records relating to the proceedings issuedby the Commission office itself. . . "
As was pointed out by Court to counsel at the hearing itself, thereshould have been an express admission in the counter-affidavit of thepetitioner in regard to this matter, in view of the affidavits of the1st and 3rd respondents. But, taking into consideration the abovesubmissions and the fact that paragraph 54 of the original affidavitof the petitioner contained as many as 56 sub-paragraphs, this lapse
180
Sri Lanka Law Reports
(1996) 2 Sri LR.
on the part of the petitioner cannot be considered an attempt tomisrepresent facts to this Court, as ex fade it is due to inadvertance.
In these circumstances, I cannot agree that it was grave misconducton the part of the petitioner or that it warrants the dismissal of thisapplication in limine.
The President, by Warrant dated 2.2.95, appointed the 1st, 2ndand 3rd respondents to be her Commissioners for the purpose ofinquiring into the matters mentioned in the said Warrant and furtherappointed the 1st respondent to be the Chairman of the said Com-mission. According to the interim report, the inquiry into the allegationsagainst the petitioner lasted 22 days inclusive of 4 preliminary datesof inquiry and was concluded on 19.12.96.
The petitioner, however, states in his petition that the sittings ofthe Commission commenced on 20.4.95 and the allegations againsthim proceeded to inquiry on 33 occasions and the 3rd respondentwas not present only on 5 occasions. The inquiry was admittedlyconcluded on 19.12.96.
There is no dispute that the 3rd respondent did not participate inthe inquiry after 12.11.96. The 3rd respondent, in his affidavit dated11.1.98, states that on 13.11.96 he "became seriously ill and waswarded at the Intensive Care Cardiology Unit of the National HospitalColombo with a heart condition of Cardio Myopathy" and that in viewof his serious illness which incapacitated him and in order to ensurethat the proceedings before the Commission continues without anyundue delay, he submitted his resignation to the President, with acopy to the 1 st respondent who was the Chairman of the Commission,by letter dated 18.11.96 (3R1). The letter states, inter alia that heis "reluctantly induced to submit humbly to Your Excellency my res-ignation from the post of Commissioner of the said Commission, toenable the other two members of the Commission to continue furthersittings of the Commission, without any interruption and delay of itssittings".
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(Wijetunga, J.)181
The President's response was by letter dated 28.11.96 under thehand of the Secretary to the President (1R1), addressed to the 3rdrespondent, with copy to the 1st respondent, which states inter aliaas follows:
"The sections of the Special Presidential Commission Actreferred to by you, viz sections 3 (1) & (2) do not appear to requireyour resignation, in consequence of your present illness. Yourabsence from the proceedings of the Commission on that accountdoes not appear to invalidate those proceedings.
In the circumstances I am directed to inform you that you cancontinue to remain a member of the Commission and take part inits proceedings again, when your health permits you to do so."
In effect, therefore,, the President did not accept the resignationof the 3rd respondent who thus remained a member of the Commissionat every stage relevant to these proceedings, though he did notparticipate in such proceedings during a certain period due to ill-health.
Section 3 of the Special Presidential Commissions of Inquiry Lawprovides-
where any member of a commission dies, or resigns, or desiresto be discharged from the performance of his duties in respectof the whole or part of an inquiry, or refuses or becomes unableto act, the President may appoint a new member in his placefor the whole or any part of such inquiry.
until such appointment is made, the inquiry may continue beforethe remaining members of the commission, and if no suchappointment is made, the inquiry shall continue and beconcluded before the remaining members of the commission.
where a new member has been appointed under the provisionsof subsection (1) it shall not be necessary for any evidencewhich may have been taken before the commission prior to suchappointment to be retaken and the commission shall be entitledto continue its proceedings from the stage at which they wereimmediately prior to such appointment:
182
Sri Lanka Law Reports
(1998) 2 Sri LR.
Provided, however, that where a commission consists of onlyone member, the inquiry shall commence de novo".
It was the submission of learned President's counsel for the pe-titioner that in law there was no resignation of the 3rd respondent.
The response of the President as reflected in the letter (1R1) makesit clear that she did not accept the resignation offered by the 3rdrespondent by (3R1) dated 18.11.96. Instead, the 3rd respondent wasinformed that he can continue to remain a member of the Commissionand take part in its proceedings again when his health permits himto do so. In fact, the 3rd respondent himself states in paragraph IIof his affidavit that he "recommenced to attend the sittings of the saidCommission" which is a clear indication that he not only acceptedthe views of the President and continued to remain a member of theCommission, but also participated in the sittings of the Commissionwhen his health permitted him to do so.
The question then is whether the provisions of section 3 (2) apply,as the 3rd respondent did not cease to be a member of the Commission.In my view, for the President to appoint a new member, there shouldbe a vacancy created by any one of the situations contemplated bysection 3 (1), viz death, resignation, desire to be discharged from theperformance of his duties, refusal, or inability to act. In this instance,though the 3rd respondent states in his affidavit that his serious illnessincapacitated him, he did not become unable to act within the meaningof section 3 (1), necessitating the appointment of a new member inhis place, as is demonstrated by his continued participation in theproceedings of the Commission thereafter.
Even if one assumes that, in view of the letter (3R1) by whichthe 3rd respondent sought to tender his resignation to the President,the other two Commissioners were entitled to assume that a situationcontemplated by section 3 (1) had been brought about, and thereforecontinued with the inquiry, the letter (1R1) dated 28.11.96 put it beyondall doubt that the President did not accept the 3rd respondent'sresignation and in fact informed him that he can continue to remaina member of the Commission. Therefore, the appointment of a newmember did not arise. Equally, there was no question of continuingthe inquiry before the remaining members of the Commission as the3rd respondent had at all times material to this application continuedto be a member of the Commission.
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(Wijetunga, J.)183
The learned Attorney-General in his submissions referred us to theCommissions of Inquiry Act No. 17 of 1948 as amended (cap. 8) anddrew our attention to the fact that there was no provision in that Actwhich corresponds to section 3 (2) of the Special Presidential Com-missions of Inquiry Law as amended. He submitted that the latterprovision was a departure from the provisions of the Commissionsof Inquiry Act and was intended to provide for the continuance ofproceedings, notwithstanding the absence of one of the members ofthe Commission. It contemplates, he said, the physical absence ofa member, even if it be volitional. He submitted that when section3 (2) states that "the inquiry may continue before the remainingmembers of the Commission", it refers to a situation such as thepresent one, and the vires of the Commission were unaffected bythe absence of the other member.
But, this submission fails to take into account the significance ofthe provision in section 3 (1) which states that "the President mayappoint a new member in his place", which implies that a vacancyhas been created in the Commission. The mere temporary absenceof a member does not bring about such a situation.
It was his contention that the President becomes functus officiowith regard to the functioning and continuance of the proceedingsbefore the Commission once the Commissioners are appointed. Section3 (2), he submitted, entirely vests the functional discretion with theCommissioners, who alone will decide on the continuation of proceed-ings, and is independent of any action on the part of the Presidentunder section 3 (1). He further submitted that the decision to continuethe inquiry rested with the remaining members of the Commission andthe President did not have any say in regard to the continuance orconclusion of the inquiry before such members.
Section 3 (1) provides that "the President may appoint a newmember in his place for the whole or any part of such inquiry" if oneof the situations referred to therein occur. It clearly gives the Presidenta discretion as to whether a new member should be appointed ornot. For the President to exercise such discretion, it must be broughtto her notice that one of the five situations aforementioned hasoccurred. That is why subsection 2 commences with the words "untilsuch appointment is made" and provides that "the inquiry may continuebefore the remaining members of the commission". This is an enabling
184
Sri Lanka Law Reports
(1998) 2 Sri LR.
provision where the discretion, at that stage, as to whether the inquirymay continue is vested with the remaining members of the Commis-sion.
The next stage contemplated by section 3 (2) is where the Presidentmakes no such appointment. Then "the inquiry shall continue and beconcluded before the remaining members of the commission".
Section 3 (2), in my view, clearly vests the discretion with thePresident as to whether a new member should be appointed or not.There must, therefore, be a manifestation of the President's intentionnot to appoint a new member for the inquiry to be continued andconcluded before the remaining members of the Commission. Thediscretion of the remaining members of the Commission whether tocontinue the inquiry until such appointment is made is obviously limitedto the interim period between the occurrence of one of the fivesituations mentioned in section 3 (1) and the President’s decision asto whether a new member would be appointed. I cannot, therefore,see how section 3 (2) can operate independently of section 3 (1).Section 2 (1) empowers the President to decide on the number ofmembers that would constitute the Commission. She may well decidenot to appoint a new member even if one of the five situationsaforesaid has taken place. Then and then alone can the remainingmembers of the Commission continue and conclude the inquiry.
But, the factual situation with regard to the present matter is thatnone of the five events specified in section 3 (1) had actually occurred.
As regards the submission of the respondents that there wasacquiescence on the part of the petitioner in the continuation ofproceedings, the position of the petitioner, as borne out by the recordof the proceedings, appears to be that though the 3rd respondentdid not temporarily participate in the proceedings of the Commissionand the other two members continued the sittings, there was noindication that a situation contemplated by section 3 (1) necessitatingthe appointment of a new member had arisen. The petitioner thereforecontinued to participate in the proceedings, apparently in the beliefthat the 3rd respondent remained a member of the Commission forthe purposes of this inquiry.
SC Paskaralingam by his Attorney-at-law v. P. ft. P. Perera and Others
(Wijetunga, J.)185
This is demonstrated by what was stated by learned President'scounsel for the petitioner when he formally handed over three copiesof the affidavit signed by the petitioner for the use of the threeCommissioners on 3.12.96, at which sitting the 3rd respondent wasnot present. He said : "May I be permitted to hand over 3 sets ofthe same document each one bears the original signature of Mr.Paskaralingam. These are for the use of our Lordships and JusticeJayasuriya who will be joining your Lordships soon".
Again, on 16.12.96 when written submissions on behalf of thepetitioner were handed over to the Commission, at which sitting toothe 3rd respondent was not present, counsel for the petitioner stated:"Our written submissions are ready. May I hand over to your Lordshipsthree copies for the use of Justice Jayasuriya also and a 4th copyfor the record". There was, therefore, no necessity for counsel whorepresented the petitioner to object to the continuation ofproceedings after 12.11.96.
On the contrary, the other two members of the Commission madeno indication to counsel even at that stage that the 3rd respondenthad ceased to be a member of the Commission and the proceedingswere being continued before the "remaining members" in terms ofsection 3 (2), as no "new member" had been appointed by thePresident under section 3 (1).
The submission regarding acquiescence thus seems to me to bedevoid of merit.
In answer to a question by Court as to what the position wouldbe if one member is temporarily unable to take part in the proceedings,but wishes to resume his participation, the Attorney-General submittedthat once the remaining members decide to continue with the inquiryin the absence of the other member, he cannot participate in thoseproceedings thereafter. But, in the words of the 3rd respondent himselfin his affidavit, he "recommenced to attend the sittings of the saidCommission". In fact, the validity of his Warrant stands extended until16.3.99.
If the learned Attorney-General's contention is correct that oncethe 'remaining' Commissioners exercise their discretion to continuewith the inquiry, the other Commissioner no longer has a status in
186
Sri Lanka Law Reports
(1998) 2 Sri LR.
regard to that inquiry, it raises a serious fundamental question asregards the validity of the Warrant issued by the President. In effect,his submission is that two of the three Commissioners can unilaterallykeep the third Commissioner out of the inquiry, purporting to act undersection 3 (2). In other words, they can countermand the very Act ofAppointment by which the President empowered them to inquire intothe matters specified in the Warrant.
However, the learned Attorney-General added that the 3rdrespondent resumed duties on the Commission only after the Presidentrenewed and extended the Warrant in April, 1997, implying therebythat the 3rd respondent could not have continued to function until then.
I cannot agree with this submission either. The Warrant dated 2.2.95appointing the 1st, 2nd and 3rd respondents to be her Commissionersfor the purposes specified therein continued to be in force at allmaterial times, and required them initially to transmit their reports orinterim reports to the President within 6 months from the date thereof.No fresh Warrant of appointment has been issued thereafter.
By the subsequent orders made by the President, only the timefor the rendering of the final report of the Commission has beenenlarged under section 4; on 24.7.95 until 2.2.96, on 1.2.96 until2.8.96, on 1.8.96 until 2.2.97, on 31.1.97 until 2.3.97, on 28.2.97 until30.6.97, on 30.6.97 until 14.1.98, on 14.1.98 until 17.3.98, and on17.3.98 until 16.3.99. There was no change in the terms of referenceand the original Warrant has been in force throughout. There wastherefore no reason why the 3rd respondent could not have resumedhis functions as a Commissioner once his health permitted him todo so, as he always remained a duly appointed Commissioner, hisresignation not having been accepted by the President and the 3rdrespondent having implicitly agreed to continue as a Commissioner.
I therefore hold that a situation contemplated by section 3 (1) didnot occur and the question of appointing a new member did notconsequently arise. All that did take place was a period of temporaryabsence on the part of the 3rd respondent, which in no way precludedhim from resuming his functions as a Commissioner and participatingin the decision-making process.
The proceedings of the said inquiry had concluded on 19.12.96and the report is dated 2.3.97.
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(Wijetunga, J.)187
The petitioner in his counter-affidavit dated 12.3.98 averred thatduring the period between 12.11.96 and 2.3.97 the 3rd respondentsat as a single Judge in the Court of Appeal on 10 days in January,1997, and 18 days in February, 1997. As such, he submitted thatwell before the adverse findings made against him and the compilationof the report thereon, the 3rd respondent was no longer unable toparticipate, at the very least in the decision-making process bysubscribing to the report. He has submitted certified copies of the draftminutes of the Court of Appeal in respect of those 28 days, in Januaryand February, 1997, marked CA-1 and CA-2, respectively.
There is no dispute that the 3rd respondent was unable toparticipate in the proceedings after 12.11.96, until the inquiry wasconcluded on 19.12.96.
But, I am unable to agree with the 3rd respondent when he statesin paragraph 7 of his affidavit that "having not participated in theproceedings held before the Commission after the 12th November,1996, having not observed and heard the adduction of evidence andnot heard the submissions of counsel, it would have been an uncon-scionable pretence and sham, not befitting judicial office, to haveplaced my signature to a report prepared by the other Commissioners.Likewise, I state that no new Commissioner appointed in my placecould have lawfully arrived at findings based on evidence which wasnot led before him." This is the sole reason given by the 3rdrespondent for his non-participation in the decision-making process.
But this averment is contrary to the very provisions of section 3
which states that "where a new member has been appointed underthe provisions of subsection (1) it shall not be necessary for anyevidence which may have been taken before the commission priorto such appointment to be retaken and the commission shall be entitledto continue its proceedings from the stage at which they were im-mediately prior to such appointment". This subsection clearlyrecognises that such evidence shall be acted upon though not takenbefore a particular Commissioner. In other words, these provisionsenable the Commission of Inquiry to adopt such evidence even withoutthe consent of parties, unlike in proceedings before a normal Courtof law where evidence led before a Judge's predecessor in office couldbe adopted, but generally with the consent of parties (vide section48 of the Judicature Act).
188
Sri Lanka Law Reports
(1998) 2 Sri LR.
Learned President’s counsel for the petitioner relied on Wijeramav. Paul, for the proposition that the non-participation of the 3rdrespondent on a few dates of the inquiry did not prevent him fromparticipating in the decision-making process, as a verbatim transcriptof such proceedings was available to him and the proceedings wereeven tape-recorded.
In the aforementioned case, the then Court of Appeal of Sri Lankaobserved (at page 250) that: "the phenomenon of one judge actingon evidence taken before another is not one wholly repugnant toour law, and our legislators have themselves recognised (see eg.sections 88 of the Courts Ordinance and 292 of the Criminal ProcedureCode) the acceptability of decisions reached in that way”.
The 3rd respondent having continued as a Commissioner, was thusnot justified in not participating in the decision-making process on thegrounds adduced by him.
Neither the Warrant of appointment nor the principles applicableto the conduct of such inquiries required him "to have placed (his)signature to a report prepared by the other Commissioners". Onepresumes that all three Commissioners were required to participatein the decision-making process and before a report or interim reportis transmitted to the President, a full and proper analysis is madeof the evidence relevant to the inquiry by all the Commissioners, aswould enable them to arrive at a collective opinion. No material hasbeen placed before this Court to indicate that the 3rd respondent wasunable to participate in the decision-making process in regard to thepetitioner between 19.12.96 (on which date the proceedings in theaforesaid inquiry had been concluded) and 2.3.97 when the reportwas signed by the other two Commissioners.
It is also relevant to note that on 28.2.97 the President had enlargedthe time for rendering of the report of the Commission until 30.6.97,and if the Commissioners were so disposed, they had almost fourmore months within which to prepare the report.
The resulting position then is that while the three respondentscontinued to be members of the Commission at all times relevant,by reason of the President having enlarged the period of validity oftheir Warrant of appointment without interruption, which Warrant wasand still is in force, only two of those members participated in thedecision-making process.
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(Wijetunga, J.)189
The President as the appointing authority, the petitioner as the partyaggrieved by the findings and recommendations of the Commission,Parliament which under Article 81 of the Constitution is empoweredto give effect to the recommendation that the petitioner be madesubject to civic disability, and last but not least, the 'People' in whom'Sovereignty' is vested by Article 3 of the Constitution have a rightto know the views of the 3rd respondent in regard to this matter, ashe continued to be a member of the Commission. Though undoubtedlysuch a decision could be made by a majority of the members of theCommission, I see no warrant in law for a member of the Commissionto refrain from expressing his views one way or the other, whilecontinuing to be a member of such Commission. It is immaterialwhether by the 3rd respondent's participation in the decision-makingprocess, the conclusions reached and the recommendations made bythe other Commissioners could have been different, or whether theircollective thinking could have tilted the scales differently. What isrepugnant to the principles of natural justice is that only two out ofthe three Commissioners who held the inquiry chose to express theirviews. Such a report cannot, in my view, be considered a report ofthe Commission, as contemplated by law.
Mustill & Boyd in the Law and Practice of Commercial Arbitrationin England (1982 edition) state at pages 322 and 323 that where thereference is to more than one arbitrator, all the arbitrators must acttogether, unless the arbitration agreement provides otherwise andquote Creswell, J's observations in Re. Beck and Jackson(e> (citingRussel) that: "the parties are entitled to have recourse to the argu-ments, experience and judgment of each arbitrator at every stage ofthe proceedings brought to bear on the minds of his fellow Judgesso that by conference they shall mutually assist each other in arrivingtogether at a just conclusion”.
Russel on The Law of Arbitration (20th edition, 1982) states atpage 221 that: "arbitrations need not follow the procedure laid downfor actions in a court of law" but goes on to state at page 234 that"on a reference to more than one arbitrator, . . . each of them mustact personally in performance of the duties of his office, as if he weresole arbitrator; for, as the office is joint, if one refuses or omits toact, the others can make no valid award".
190
Sri Lanka Law Reports
(1998) 2 Sri L.R.
If this principle applies to arbitrators who are 'Judges' selected bythe parties, then with how much greater force does it apply to pro-ceedings before a Commission of Inquiry such as the one we areconcerned with, which is appointed by no less a person than the Headof the State.
In Parr v. Winteringham131 three persons were appointed to act asstewards of a horse race, the rule of the course being that all disputeswere to be settled by the stewards and all such decisions were tobe final. Two of the stewards, not being together at the time, signeda paper containing their decision in favour of the plaintiffs horse, fromwhich the third steward dissented. In an action by the plaintiff torecover the stakes, it was held that the decision was valid and binding.
But, Lord Campbell, C.J. expressed the opinion that: “if thesefunctionaries were in the nature of Arbitrators or Judges, they mustmeet together, deliberate, and give a joint judgment. But stewardsof races are Judges of a peculiar description . . ."
In Morris v. Gestetner Ltd.<4> where an employee applied to theIndustrial Tribunal for unfair dismissal and the majority of the Tribunaldecided that the employee had been unfairly dismissed and theminority took no part in a decision on whether to make a recommen-dation under section 106 (4) of the Industrial Relations Act, 1971 andno such recommendation was made, on appeal by the employee itwas held, allowing the appeal, that even though the decision that theemployee had been unfairly dismissed was a majority decision, it wasfor the Tribunal and every member of it to consider whether thereshould be a recommendation for re-engagement under section106 (4).
In Natural Justice by Paul Jackson (2nd edition, 1979) it is statedat page 90 that: "once it is established who constitutes a tribunal,it is clear that all the members must participate in its decision".
In Regina v. Kensingtion and Chelsea Rent Tribunal, ex. p. MacFarlanet5> Lord Widgery, C.J. recognised this principle when he statedat page 1490 that: counsel "has given us a timely reminder that underthe Act the tribunal consists of a chairman and two other members;he submits quite rightly that no decision can be taken except by atribunal so constituted".
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(Gunasekera, J.)191
In Chief Constable of the North Wales Police v. Evans!® LordBrightman observed at page 154 that "judicial review is concerned,
' not with the decision, but with the decision-making process".
Having regard to the authorities cited above and for the reasonsstated' in my judgment, I cannot but come to the conclusion that theinterim report of the Commission in respect of this inquiry is thus fatallyflawed.
I therefore hold that the non-participation of Justice F. N. D.Jayasuriya does render the interim report one made withoutjurisdiction.
Accordingly, I direct that a mandate in the nature of a Writ ofCertiorari do issue, as prayed for by the petitioner, quashing theadverse findings made by the 1st and 2nd respondents against thepetitioner and the recommendations made by them to the Presidentin pursuance of such findings.
I make no Order as regards costs.
GUNASEKERA, J.
I have had the benefit of reading the draft judgments of my Lord theChief Justice and that of Hon. Wijetunga, J. with whom I wasassociated at the hearing of this application. Having given my anxiousconsideration to both drafts, on a careful examination of the submis-sions made on behalf of the parties and upon an analysis of therelevant provisions of the statute namely the Special PresidentialCommissions of Inquiry Law, No. 7 of 1978, as amended I mostrespectfully regret that I am unable to agree with the findings of myLord the Chief Justice.
Whilst I agree with the observations and findings of Hon. Wijetunga,J. I concur with his Order that a Mandate in the Nature of a Writof Certiorari be issued to quash the adverse findings made by the1st and 2nd respondents against the petitioner and the recommen-dations made by them to Her Excellency the President in pursuanceof such findings in their interim report dated 2.3.1997 in respect ofinquiry No. 3/95B.
192
Sri Lanka Law Reports
(1998) 2 Sri LR.
As the facts relating to this application are fully set out in thejudgments of my Lord the Chief Justice and that of my brotherWijetunga, J. it is unnecessary for me to repeat them.
The only question of law upon which notice was issued on therespondents is as follows:
"Does the non-participation of Justice F. N. D. Jayasuriya render
the interim report one made without jurisdiction".
In regard to this question I wish to make the following observationsas well:
The interpretation section, namely section 22 of the Special Presi-dential Commissions of Inquiry Law, No. 7 of 1978, as amended statesthat "in this law unless the context otherwise requires 'Commission'means a Special Presidential Commission of Inquiry established underthis Law".
The establishment of the Commission in the present applicationis referable to section 2 (1) which inter alia states that “The Presidentmay by Warrant under public seal of the Republic of Sri Lankaestablish a Special Commission of Inquiry consisting of such memberor members, each of whom shall be a Judge of the Supreme Courtor any other Court not below a District Court as shall be specifiedin the Warrant, to inquire into and report upon such administration,conduct or . matter".
Subsection 2 of section 2 of the statute is in the following terms."Every Warrant issued under this law shall –
set out the name of the member or each of the membersof the Commission;
where a Commission consists of more than one member,specify the member who is to be the Chairman of theCommission".
In the instant case Her Excellency the President by virtue of thepowers vested in her under section 2 of the Special PresidentialCommissions of Inquiry Law. by Warrant dated 2.2.1995 established
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(Gunasekera, J.)193
a Special Presidential Commission of Inquiry 1995 naming the firstrespondent as its chairman and the second and third respondentsas the other two members of the said Commission".
Thus it is clear that the Special Presidential Commission of Inquiry,1995 aforesaid was to consist of 3 members the first respondent beingits chairman and the second and third respondents being the othertwo members.
Section 2 (2) (e) provides that every Warrant issued under thislaw shall require the rendering of such reports, including interim reportsas to the "Commission" may appear fit.
There is no dispute that the 4th interim report dated 2.3.1997pertaining to inquiry No. 3/95B relating to the petitioner has beensigned only by the 1st and 2nd respondents, for at page 7 of theinterim report it is stated as follows: "Commissioner Justice F. N. D.Jayasuriya who was a member of this Commission appointed underthe Warrant establishing the Special Presidential Commission wasunable to participate in the proceedings of the Commission after the12th of November, 1996, due to ill-health on medical advice. Theproceedings were thereafter continued before the chairman andCommissioner Justice H. S. Vapa in terms of section 3 (2) of theSpecial Presidential Commissions of Inquiry Law, 7 of 1978".
Since the chairman and the other member who have signed theinterim report dated 2.3.1997 have set out the above to be. the basisfor the non-participation of Justice F. N. D. Jayasuriya, the 3rd memberof the Commission, in the decision-making process, I wish to considerthe provisions of section 3 in order to decide as to whether the saidsection has any application to the facts relating to the present applicationand consider whether the 1st and 2nd respondents were lawfullyentitled to have acted under the provisions of section 3 (2) of thestatute.
Section 3 (1) provides that: “where any member of a Commissiondies, or resigns, or desires to be discharged from the performanceof his duties in respect of the whole or part of an inquiry, or refusesor becomes unable to act, the President may appoint a new memberin his place for the whole or any part of such inquiry" and section3 (2) states that "until such appointment is made, the inquiry may
194
Sri Lanka Law Reports
(1998) 2 Sri LR.
continue before the remaining members of the Commission, and ifno such appointment is made, the inquiry shall continue and beconcluded before the remaining members of the Commission".
There is no dispute that the 3rd respondent did not participatein the inquiry after 12.11.1996. In his affidavit dated 11.1.1998 the3rd respondent states that on 13.11.1996 he became seriously ill andwas warded at the Intensive Care, Cardiology Unit of the NationalHospital, Colombo, with a heart condition of Cardio Myopathy andin view of his serious illness which incapacitated him, in order toensure that the proceedings before the Commission continued withoutany undue delay that he submitted his resignation as a member ofthe Commission to Her Excellency the President by letter dated18.11.1996 marked '3R1' with a copy to the 1st respondent who wasthe chairman of the Commission. Her Excellency's response wasconveyed to the 3rd respondent with a copy to the 1st respondentunder the hand of the Secretary to the President by letter *1R1 * dated28.11.1996. It states as follows:
"Her excellency the President has directed me to acknowledgereceipt of your letter dated 18.11.1996 by which you have submittedyour resignation from the membership of the abovementioned SpecialPresidential Commission.
The sections of the Special Presidential Commission Act referredto by you viz sections 3 (1) & (2) do not appear to require yourresignation in consequence of your present illness. Your absence fromthe proceedings on that account does not appear to invalidate theproceedings.
In the circumstances I am directed to inform you that you cancontinue to remain a member of the Commission and take partin its proceedings when your health permits you to do so."
Thus it is clear, to my mind, that the resignation of the 3rdrespondent was not accepted by Her Excellency and that the situationcontemplated in section 3 (1) did not arise and consequently thechairman and the 2nd respondent could not lawfully have continuedwith and concluded the inquiry purporting to act under the provisionsof subsection 3 (2) without the participation of the 3rd respondentwho in fact and in law continued to be the 3rd member of the
SC Paskaralingam by his Attorney-at-law v. P. R. P. Perera and Others
(Gunasekera, J.)•195
commission appointed by Her Excellency by virtue of the powersvested in her under section 2 and in my view the acts and deedsof the 1st and 2nd respondents only cannot in law be consideredto be the acts and deeds as envisaged in section 2 of the statute.
The only reason adduced by the 3rd respondent for non-partici-pation in the decision-making process was that the proceedings ofthe inquiry had concluded on 19.12.1996 and having not observedand heard the evidence or the submissions of counsel after 12.11.1996it would have been an unconscionable pretence not befitting judicialoffice to have placed his signature to a report prepared by the otherCommissioners and that no new Commissioner appointed in his placecould have lawfully arrived at findings based on evidence which wasnot led before him.
The petitioner along with his counter-affidavit dated 12.3.1998 hasproduced certified copies of the draft minutes of proceedings heldbefore the 3rd respondent who had functioned as a single Judge ofthe Court of Appear marked 'CA1' and 'CA2' which establish that hehad performed judicial functions on 10 days in January, 1997, and18 days in February, 1997.
In my view the fact that the 3rd respondent functioned on 28 daysin the months of January and February, 1997, negatives the assertionthat he was unable to participate in the decision-making process, asit appears in the interim report dated 2.3.1997. Further an examinationof section 3 (3) shows that it enabled the 3rd respondent to havelawfully examined the proceedings held after 12.11.1996 and to haveconsidered the written submissions tendered on behalf of the partiesand to have participated in the decision-making process.
For the reasons stated I am of the view that the interim reportdated 2.3.1997 in respect of Inquiry No. 3/95B signed by the 1st and2nd respondents without the participation of Justice F. N. D. Jayasuriyawas not one made by the Commission as contemplated by the lawunder which it was established and was one made without jurisdiction.
I make no Order for costs.
Application allowed.
Certiorari issued.