PATHIRANA vs. VICTOR PERERA (DIG PERSONAL TRAINING POLICE) AND OTHERS

033-SLLR-SLLR-2006-V-2-PATHIRANA-vs.-VICTOR-PERERA-DIG-PERSONAL-TRAINING-POLICE-AND-OTHERS.pdf


CA Pathirana v. Victor Perera (DIG Personal Training Police) and Others 281
PATHIRANA
VS
VICTOR PERERA
(DIG PERSONAL TRAINING POLICE) AND OTHERS
COURT OF APPEAL.
SRISKANDRAJAH, J.
CA 1123/2002.
JUNE 21, 2006.
JULY 21,2006.
SEPTEMBER 4, 2006.
Writ of Certiorari – Quashing of a Circular – Locus Standi – Constitution-Articles 13(4), 55(5) and 126 – Laches? – Sinhala/Tamil text of the Establish-ment Code – Different from English Text? – Status of a public officer when legalor criminal proceedings are taken against him? – Mandatory provisions of theEstablishment Code have to be followed.
The petitioner who is the General Secretary of the Organization of Parents andFamily members of the disappeared (OPFMD) and a brother of a “disappeared"person sought to quash a Circular letter issued by the 1st respondent toreinstate officers who have been interdicted following inquiry conducted by theDisappearance Investigation Unit(DIU) and charged in Court but subsequentlybailed out in connection with the cases of disappearance of persons. Therespondents raised two preliminary objections, namely (1) that the petitionerlacks locus siandi and (2) laches.
HELD:
per Sriskandarajah, J.
“In application for writs the Courts have relaxed the rules of standing evenwider than the rules of standing in Fundamental Rights applications in order toensure good administration.” 1
(1)The petitioner is the General Secretary of OPFMD, in addition thepetitioner himself is directly affected by the disappearance of hisbrother – his home front has been left in total misery of life by thedisappearance of his brother.
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(2006) 2 Sri L R.
The impugned circular was issued on 05.01.2001 and the applica-tion was filed on 09.07.2002. The circular is an internal circular andthe petitioner had come to know about the circular only when hereceived the reply from the 2nd respondent dated 18.04.2002. Anapplication for a Writ of Certiorari will not be refused on the ground ofdelay, if the delay is not attributable to the petitioner. Laches could beexcused if the order is a nullity. As the circular is a nullity there are nolaches.
When an order is ultra vires and the order is acted upon the fact thatquashing of that order would cause administerial inconveniencecannot be as criterion to refuse a Writ of Certiorari.
The provisions of paragraph 27.8 and 27.9 of the Establishment Code'(E:Code) on which the respondents claim to have relied on have noapplication. The Police Officers after the investigation by the DIU andafter the consideration of the Attorney General, were charged in courtsfor serious criminal offences relating to disappearance of personsand the cases are not concluded.
The respondents have no authority whatsoever to ignore the manda-tory provisions of 27.10 Establishment Code in issuing the impugnedCircular. The circular is ultra vires.
Reliance has to be placed on the Sinhala and Tamil text of the Estab-lishments Code and not on the English translation. The proper con-struction of the words in the English text in para 27.10 should be readas “criminal offence or bribery or corruption and not as “criminal of-fence of bribery or corruption .
Per Sriskandarajah. J. :
‘If criminal proceedings are taken against a public officer he should have beendealt with under paragraph 27.10 (E Code) he has to be considered as anofficer who has passed the stage of taking into custody and/or remandedpending legal proceedings therefore he cannot be considered under para27.8 or 27.9 – Vol. 2 of E Code. Under paragraph 27.10 if legal proceedings aretaken against a public officer for a criminal offence, it is mandatory for therelevant Authority to forthwith interdict that officer.”
APPLICATION for writ of certiorari.
CA Pathirana v. Victor Perera (DIG Personal Training Police) and Others 283
(Sriskandarajah J.)
Cases referred to:
Lama Hewage Lai vs. Officer-in-Charge, Minor Offences, SeeduwaPolice Station – SCM 26.07.2004
Shell Gas vs. Consumer Authority – CAM 22.08.2004
Consumers Association of Sri Lanka vs. Telecommunication Regula-tory Commission of Sri Lanka and others 2006 – Sri LR -174
Jayathilaka vs. Jeevan Kumaratunge – CA 1312/2004 – BASL NewsAugust 2004
In Re Green Movement of Sri Lanka – CA 2047/2003 – CAM 06.06.2006
Elmore Perera vs. Mavor Montegue Jayawickrema Minister of PublicAdministration and Plantation Industries and Others 1985 1 Sri LR285 at 335
Public Services United Nurses Union vs. Montague Jayawickrema -Minister of Public Administration and Others 1988 1 Sri LR 229 at 236
R v. Electricity Commissioner exp. London Electricity Joint CommitteeCo. Ltd. (1920) 1KB 171
The Surveyors Institute of Sri Lanka vs. The Surveyor General andOthers 1994 2 Sri LR 319
Virakeseri Ltd. vs. Fernando 66 NLR 145
Chas P. Hayley and Co. Ltd. vs. Commercial and Industrial Workmenand Others 1995 2 Sri LR 42
Congreve vs. Home Office (1976) QB 623
Hemantha Situge with W. R. Sanjeewa and M. K. P. Chandralal for petitioner.
Farzana Jameel, Senior State Counsel for respondents.
Cur.adv.vult.
October 9,2006SRISKANDARAJAH J.
The Petitioner in this* r^clication is seeking a writ of certiorari to quasha circular letter of 5th January 2001 issued by D. I.G. Personal and Trainingmarked P5 directing all DIGG Ranges, SSPP Divisions(Territorial andFunctional) to reinstate all officers who have been interdicted following theinquiries conducted by Disappearance Investigation Unit (DIU) and chargedin courts but subsequently bailed out in connection with the cases ofdisappearance of persons. The Respondents raised two preliminaryobjections. The first objection is that the Petitioner has no legal interestwith regard to the administrative decision of the Police Force and the
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second objection is that the Petitioner has failed to file this applicationwithin reasonable time from the impugned decision dated 05.01.2001.
I will first deal with the first preliminary objection on the question ofstanding first and the objection of delay will be dealt with at the end of thisjudgment.
The Petitioner submitted that he was subjected to a traumatic sufferingduring the period 1989 • 1990 due to the disappearance of his brotherSeemonmeru Pathiranage Sudath Deshapriya Pathirana who disappearedon 10.12.1989. He is at present the General Secretary to the Organizationof Parents and Family Members of the Disappeared (OPFMD). He furthersubmitted that his brother was the Secretary of the Republic Health WorkersTrade Union, affiliated to the Nava Samasamaja Party. In relation to hisdisappearance his mother made a complaint to the Police Station Borellaand his father made a similar complaint to the Commission ofDisappearances. Copies of the said complaints are marked as P2a toP2j. The Petitioner's brother is found among the disappearance list enlistedby the Commission of Disappearance in 1997 (P3). The Petitionersubmitted that he and his home front has been left in total misery of life bythe disappearance of his brother as the Petitioner was the sole breadwinner of his family. When dealing with the standing of an applicant in aFundamental Rights Application Bandaranayake J. observed, in LamaHewage Lai v. Officer-in-charge, Minor Offences, Seeduwa PoliceStation(1):
“A careful reading of Article 13(4) of the Constitution clearly reveals thatno person should be punished with death or imprisonment except by anorder of a competent court. Accordingly if there is no order, no personshould be punished with death and unless and otherwise such an order ismade by a competent court, any person has a right to live… Article 13(4)should be interpreted broadly to mean that the said article recognizes theright to life impliedly and that by reading Article 13(4) with Article 126(2) ofthe Constitution which would include the lawful heirs and/or dependentsto be able to bring an application in a situation where the death had occuredas a result of a violation of Article 11.”
In applications for writs the courts have relaxed the rules of standingeven wider than the rules of standing in fundamental rights applications in
CA Pathirana v. Victor Perera (DIG Personal Training Police) and Others 285
(Sriskandarajah J.)
order to ensure good administration. In Shell Gas v. Consumer AffairsAuthority(2) Marsoof J (P/CA) observed:
“Courts in Sri Lanka as well as in other jurisdictions have liberallyinterpreted rules of standing in regard to matters of vital concern to society…Time and time again, our Courts have repeated that the fact that theirregularity or the grievance for which redress is sought is shared by alarge number of people or society as a whole would not prevent one of themany affected persons from seeking relief from the courts…. there can beno doubt that a consumer such as the intervenient-Petitioner will havelocus standi to challenge an order or action of a statutory body such asthe Consumer Affairs Authority in an appropriate case….”
An association or group that seeks to represent some or all of itsmembers were also said to have standing in relation to the matters affectingthe interest of their members; Consumers Association of Lanka v.Telecommunications Regulatory Commission of Sri Lanka and Others(3)In Jayathilaka v. Jeevan Kumarathunga and Others(4) A person who hasa long standing association and interest in a particular field such as sportswas given standing to challenge an appointment of the Chef De Missionfor Olympic Games. A movement called Green Movement of Sri Lanka(5)was given standing in C. A. (writ) Application No. 2047/2003 C. A. Minutes
where the Green Movement of Sri Lanka having the objects ofpreserving the environment and natural resources of Sri Lanka, institutedproceedings on the complaint of the villagers who are directly affected butdo not have sufficient resources to present their grievance before a court oflaw.
The Petitioner of this application is the General Secretary to theOrganization of Parents and Family Members of the Disappeared (OPFMD).In addition the Petitioner himself is directly affected by the disappearanceof his brother. The Petitioner submitted that he and his home front havebeen left in total misery of life by the disappearance of his brother. ThePetitioner’s brother is found among the disappearance list enlisted by theCommission of Disappearance in 1997 (P3). In these circumstances thiscourt holds that the Petitioner has locus standi to have and maintain thisapplication.
The Petitioner submitted that during 1989-1990 when disppearance ofpersons both in north and south of the country were at its highest and the
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violations of the rights of people were at optimum levels, persons had beentaken into custody from their homes, at checkpoints or at round-ups andoften confined incommunicado and tortured and many of them are nomore, which includes his brother. A Presidential Commission was appointedby Her Excellency the President in or about 1995 June to inquire intothese disappearances. Consequent to the finding of this Commission, theAttorney General had framed charges against more than 450 police andsecurity force personnel against whom there is adequate evidence toprosecute them in Courts. Ordinarily any officer of State, be it the Policeofficer or otherwise, against whom a criminal case has been filed has tobe interdicted from service until the conclusion of the case and dismissedif he is convicted. This was done in terms of the provisions in theEstablishment Code, which interalia, deal with disciplinary proceduresagainst State officers.
The Petitioner further submitted that the 1st Respondent issued a circularwith the approval of the 3rd Respondent marked P5 in violation of theprovisions envisaged in the Establishment Code. The Petitioner contendedthat by the said circular all DIGG and SSPP are directed to re-instate allofficers who have been interdicted following the inquiries conducted by theDisappearance Investigation Unit and charged in courts but subsequentlybailed out in connection with cases of disappearances of persons; thisdirection is a violation of the provision of 27:10 of the Establishment CodeVolume II.
It is admitted that the power of dismissal and disciplinary control ofPolice officers referred to in the said circular are governed by theEstablishment Code of the Government of the Democratic Socialist Republicof Sri Lanka Volume II which came into force on 1st November 1999.According to the provisions of Chapter XLVIII 2:3 the powers of dismissaland disciplinary control of all Police Officers referred to in the said circularare vested with the Public Service Commission (during the relevant time)and these powers were delegated by the Public Service Commission byits letter dated 14th December 1992 (3R3) and annexture A gives thedetails of delegation.
It provides:
“The power of dismissal and disciplinary control of Police Officersof the rank of Chief Inspector, and Police Officers of and below the rank of
CA Pathirana v. Victor Perera (DIG Personal Training Police) and Others 287
(Sriskandarajah J.)
Inspector in the Police Department, i.e. all subordinate officers to whomdisciplinary powers are not delegated, are delegated to the officers of staffrank (A.S.P. and above as given in the annexed schedule).
The 3rd Respondent contended that subsequent to the filing of cases incourt the relevant officers were interdicted. Most of these cases based onthe complaints made between 1989 and 1990 i.e. more than ten yearsago and the accused were enlarged on bail but continued to be underinterdiction. Some of these police officers filed SC Application Nos. 146/99, 147/99 and 152/99 and one of them applied to the Human RightsCommission by case No. 111/2000 stating that they were kept oninterdiction unfairly for over 10years. The 3rd Respondent further contendedthat considering the facts stated in the above applications, he issuedcirculars dated 05.01.2001, P5 (3R1) and 06.06.2001, 3R2 as per theauthority vested in him under the provisions of 27:8 and 27:9 of ChapterXLVIII of the Establishments Code. It appears that P5 and 3R1 was issuedby the 1st Respondent with the approval of the 3rd Respondent. Thedocument 3R2 which gives discretion in implementing P5 (3R1) to RangesDIGG was issued by the 3rd Respondent.
The Petitioner filed certified copies of the orders of the aforesaid SCApplications with his written submissions. It appears all the aforesaidapplications were withdrawn and the Supreme Court has dismissed thesaid applications.
Chapter XLVIII of the Establishments Code provides in
27:8 When a public officer taken into custody by the Police or anyother statutory authority is released from custody he should bereinstated. However, if such reinstatement would obstruct a formaldisciplinary inquiry scheduled to be held by the DisciplinaryAuthority, the accused officer should not be reinstated butinterdicted.
27:9 When an officer remanded pending legal proceedings againsthim is released on bail, he should be reinstated in service if theDisciplinary Authority determines that his reinstatement will notadversely affect the interests of the public service. If thedisciplinary authority is satisfied that his reinstatement in service
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will adversely affect the interest of the public service he shouldbe further kept on compulsory leave. Similarly, where theDisciplinary Authority contemplates disciplinary action againstthe officer and his reinstatement is an impediment to thecontemplated disciplinary proceedings the officer should beinterdicted as appropriate. Procedure to be followed when a Courtof Law or a Statutory Authority proceeds against a public officeris provided in paragraph 27 of Chapter XLVII of the EstablishmentCode. Paragraph 27:1 deals with a criminal offence punishableunder the Law of Sri Lanka by a Court of Law is disclosed,paragraph 27:2 deals with an offence of bribery or corruption isdisclosed and paragraph 27:3 deals with an offence punishablethrough a duly authorized statutory authority or institution (e.g.Director General of Customs, Commissioner General of IncomeTax) for violating any provision in an Act passed by the Legislatureof Sri Lanka is disclosed. Paragraph 27:8 deals with a publicofficer who had been taken into custody by the Police or anyother statutory authority and released from custody and paragraph27:9 deals with an officer remanded pending legal proceedingsand released on bail. This position cannot be construed as astage falling under paragraph 27:8 or 27:9 but it is a stage coveredby paragraph 27:10.
Paragraph 27:10 provides:
27:10 where legal proceedings are taken against a public office for acriminal offence or bribery or corruption the relevant officer should beforthwith interdicted by the appropriate authority (the emphasis is mine)
Instead of the word “or” the word “of is used in the English translation ofthe Establishment Code. The Sinhala version of the Establishment Codereads as “criminal offence or bribery or corruption”. The EstablishmentCode contains matters relating to public officers including powers ofappointment, transfer, dismissal and disciplinary control based on cabinetapproval. It is an official document and its original has to be in the officiallanguage. Therefore reliance has to be placed on the Sinhala and Tamiltext of the Establishment Code and not on the English translation. It alsoappears that the criminal offences and the offence of bribery or corruptionare dealt with separately in 27:1 and 27:2 and therefore the proper
CA Pathirana v. Victor Perera (DIG Personal Training Police) and Others 289
(Sriskandarajah J.)
construction of the words in the English text in paragraph 27:10 should beread as “criminal offence or bribery or corruption” but not as “criminaloffence of bribery or corruption”.
If criminal proceedings are taken against a public officer he should havebeen dealt with under paragraph 27:10. When legal proceedings are takenagainst a public officer he has to be considered as an officer who haspassed the stage of taking into custody and/or remanded pending legalproceedings therefore he cannot be considered under paragraph 27:8 or27:9 of Volume II of the Establishment Code. Under paragraph 27:10 iflegal proceedings are taken against a public officer for a criminal offence itis mandatory for the relevant authority to forthwith interdict that officer.
In Elmore Perera v. Major Montagu Jayawickrema, Minister of PublicAdministration and Plantation Industries and Others<6) Wanasundara J.observed:
‘The Establishments Code is the basic document relating to proceduresof disciplinary action against public officers. It has been formulated by theCabinet of Ministers under Article 55(4) of the Constitution in whom sucha power is reposed. This formulation has the characteristics of a policydecision as it deals with the broad principles and procedures governingdisciplinary action against officers of practically the entire public servicein this country. The particular weight to be attached to this Code could bejudged from the fact that public officers in this country under the newconstitutional provisions have now been brought entirely within the domainof the Executive. Any complaints from public officers relating to theirappointment, tranfer, dismissal or disciplinary control, cannot be entertainedby the ordinary courts and decisions of the Cabinet, the Public ServiceCommission, or their delegates in regard to any of the above matterscannot be canvassed in a court of law – Article 55(5). The only matter thata public officer can take to the courts – and that only to the Supreme Courtunder Article 126 – is a violation of a fundamental right and no other. Theadministration of the public service is now an internal matter of theExecutive. It would however appear that the Cabinet, after due deliberation,has sought to formulate a Code of regulations containing fair proceduresand safeguards balancing the requirements and interests of the Governmentwith the rights of public officers, and the legal protection now provided bythe law to public officers is contained in this Code. These procedures are
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therefore mandatory and cannot be superceded or disrgarded without duelegal authority.”
The same view was expressed by Wanasundara J. with L. H. D. AlwisJ. and Seneviratne J. agreeing in the Public Services United Nurses Unionvs. Montague Jayewickrema, Minister of Public Administration and Others
at 236.
The contention of the 3rd Respondent is that he relied on the provisionsin paragraph 27:8 and 27:9 of the Code and issued the impugned circular.The provisions in paragraph 27:8 and 27:9 on which the 3rd Respondentclaims to have relied on has no application in this instant situation. Here,the Police Officers after an investigation by the Disappearances InvestigationUnit and after the consideration of the Attorney General were charged inCourts for serious criminal offences relating to disappearance of personsand the cases are not concluded. As I have discussed above the 1stRespondent or the 3rd Respondent the Inspector General of Police has noauthority what so ever to ignore the mandatory provisions laid down inparagraph 27:10 of the Code in issuing the impugned circular P5. In thesecircumstances I hold that the circular issued by the 1st Respondent on5th January 2001 (P5) with the approval of the 3rd Respondent to reinstateall officers who have been interdicted and charged in courts but subsequentlybailed out in connection with cases of disppearance of persons is ultravires. Atkin L. J. in R. vs. Electricity Commissioners exp. London ElectricityJoint Committee Co.(8) held that the writ of certiorari will be issued “whereverany body of persons having legal authority to determine questions affectingthe rights of subjects, and having the duty to act judicially, act in excessof their legal authority.” In this instant case the 3rd Respondent has actedin excess of its legal authority in issuing the said circular. In The Surveyors,Institute of Sri Lanka v. The Surveyor ■ General and Another(9) KulatungaJ. with G.P.S. De Silva, CJ and Ramanathan J. agreeing issued a writ ofcetiorari to quash a circular issued by the Surveyor – General as it is ultravires. I
I will now deal with the second preliminary objection raised by therespondents i.e. the application is belated. The impugned circular was
CA Pathirana v. Vidor Perera (DIG Personal Training Police) and Others 291
(Sriskandarajah J.)
issued on 05.01.2001 and this application was filed on 9th July, 2002. ThePetitioner submitted that the said circular is an internal circular sent bythe 1st Respondent to all DIGG ranges, SSPP Divisions (Territorial andFunctional) and the Petitioner came to know about the said circular P5only when he received the reply from the 2nd Respondent dated 18.04.2002(P4) to a letter written by his Attorney at Law on 08.03.2002. In VeerakesariLtd. v. Fernando<10) the court held that an application for a writ of certiorariwill not be refused on the ground of delay if the delay is not attributable tothe petitioner. Senanayake, J. in Chas P. Hayleyand Co. Ltdv. Commercialand Industrial Workers and Others(1,) held that laches could be excusedif the order is a nullity. In the above circumstances as the circular P5 is anullity this courts over rules the second preliminary objection of laches.
The learned Senior State Counsel for the Respondents objected tothe relief claimed by the Petitioner on an additional ground urged at thetime of argument namely; that the impugned circular was in operationfrom 2001 January and if it is quashed by this court now it will causeadministrative inconvenience. In view of this submission this courtrequested the Counsel for the Respondent to produce the list of officerswho were benefited by the impugned circular. Document X, Y and Z wereproduced by the respondents giving the list of officers. A perusal of this listshows that twelve officers were reinstated after the circular came intoeffect and one of them were reinstated after this action was instituted. InConsumers Association of Lanka v. Telecommunications RegulatoryCommission of Sri Lanka and three Others (supra) this Court held; citingthe Judgment Congreve v. Home Office(,2) that when an order is ultravires, the order was acted upon and the quashing of that order wouldcause administrative inconvenience cannot be a criteria to refuse a writ ofcertiorari.
For the reasons stated above this Court issues a writ of certiorari quashingthe circular dated 5th January 2001 issued by the 1 st Respondent withthe approval of the 3rd Respondent marked P5. The application for writ ofcertiorari is allowed with costs.
Application allowed.