R. RATNAGOPAL, Appellant, THE ATTORNEY-GENERAL, RESPONDENT

035-NLR-NLR-V-72-R.-RATNAGOPAL-Appellant-THE-ATTORNEY-GENERAL-RESPONDENT.pdf


Ratnagopal v. The Attorney-General
145
[Privy Council]
Present: Lord Hodson, Lord Guest, Lord Pearce,
Lord Pearson, Lord Diplock
R,RATNAGOPAL, Appellant, and TIIE ATTORNEY-GENERAL, Respondent
Privy Council Atpeal No. 30 op 19GS
APN/GENj2 of 106S—In the matter of a Rule under Section47 of the Courts Ordinance
Commission of Inquiry—Scope of inquiry—Requirement that it should be limited bythe Governor-General and not be left to be decided by the Commissioner—Powerof Commission to summon a person residing in Ceylon—Meaning of expression‘‘ residing in Ceylon ”—A witness's refusal to be sworn or to answer a question—Contempt cf Court—Irrelevancy of allegation of bias or interest on the part ofthe Commissioner—Commissions of Inquiry Act {Cap. 393), ss. 2 (I), 7, JO, 11,12—Courts Ordinance, s. 47.
Tho appellant was convicted of contempt of Court for refusing to be swornwhen ho was summoned to give evidence at a meeting of a Commission appointedunder tho Commissions of Inquiry Act. Tho terms of the warrant ofappointment issued to the Commissioner were that he should inquireinto and report on abuses in connection with certain tenders made to orcontracts entered into by contractors between 1st Juno 1957 and 31st July 1965.Tho scopo of the inquiry was left entirely to tho Commissioner’s discretion.Under the terms of the warrant the Commissioner was entrusted with decidingwhat tenders and what contracts required to be inquired into.
Held, that, inasmuch as the scopo of tho inquiry was not limited by thoGovernor-General and was to bo decided by tho Commissioner, the appointmentof the Commissioner in terms of tho warrant was ultra vires and invalidhaving regard to tho powors of tho Governor-General under section 2 of theCommissions of Inquiry Act. It followed that the conviction of the appellantfor contempt of Court should be set aside.
Obiter : (i) No intention of permanently residing in Ceylon is necessary inorder that a person may bo liable to be summoned under section 7 of thoCommissions of Inquiry Act to give evidence at a meeting of o Commission.
(ii) A person who refuses to bo sworn under tho power given to thoCommissioner by section 7 (b) of the Commissions of Inquiry Act is guiltytinder section 12 (1) (6) of the offence of contempt of Court, whether or not hohas reasonable cause to refuse to take part in the proceedings on the ground of thoCommissioner’s bias or interest. If such refusal bo considered as a refusalto answer a question, this refusal too may well not be justified by an allegationof bias or interest on the part of the Commissioner.
LXXH—7
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7163—2^55 (9/60)
146
LORD GUEST—lialnagopal v. The Attorney-General
Appeal, by special leave, from a judgment of the Supreme Courtreported in {1968) 70 N. L. JR. 409.
Sir Dingle Foot, Q.C., with E. Coiron, for the appellant. [In th,eapplication for special leave to appeal :—Sir Dingle Foot, Q.C., withHamavi Ilaniffa and JR. R. Nalliah, lor the appellant.]
F. N. Graticien, Q.C., with 31. P. Solomon and H. L. de Silva,for the respondent.
Cur. adv. vult.
June 30, 1969. [Delivered by Lord Gckst]—
This is an appeal by special leave against a conviction for contemptof Court by a judgment of the Supromc Court of Ceylon, whereby theappellant was fined 1,000 rupees or in default was sentenced to one month’simprisonment.
Tho matter arises out of a warrant-published in the Ceylon GovernmentGazctto of 22nd October 19G5 whereby Mr. E. G. Wikramanayake, Q.C.,was appointed Commissioner under section 2 of the Commissions ofInquiry Act (Cap. 393) to inquire into and report- on abuses in connectionwith certain tenders made to or contracts entered into b3,‘ contractorsbetween 1st June 1957 and 31st July 1965.
Soction 2 (1) of the Commissions of Inquiry Act is in the followingterms :
“ (i) Whenever it appears to the Governor-General to bo necessarythat an inquiry should bo held and information obtained as to—
{a) tho administration of any department of Government or ofany public or local authority or institution ; or
the conduct of any member of the public service ; or
lo) any matter in resjicct of which an inquiry 'will in his opinion,bo in the interests of tho jmblic safety or welfare,
the Governor-General may, by warrant under tho Public Seal oftho Island, appoint a Commission of Inquiry consisting of onoor more members to inquire into and report upon suchadministration, conduct or matter.”
The warrant was addressed by tho Governor-General to theCommissioner and appointed him for the purposo of—
“(1) Inquiring into, and reporting on, whether, during the periodcommencing on the first da3* of Juno 1957, and ending on thothirty-first day of July 1965, all or any of tho following actsor things, hereafter referred to as‘abusesoccurred, directly orindirectly, in relation to. or in connection with, all suchtenders (including quotations or other offers by whatsoever
LO&D GUEST—Ralnaqopai v. The Attorney-General
147
namo or description called) made b}' porsons or bodies of persons(other than any local authority or Government department),hereafter referred to as ‘contractors’, fortho performance of contractsfor tho construction of buildings or any other works (includingcontracts for tho supply of services or equipment in connectionwith such first-mentioned contracts), by whatsoever = name ordesignation called, for or on behalf of an}' Government department,and all such contracts of the description hereinbefore referred to' given to contractors, whether in consoqucucc oftho making of tendersor othorwise, as you tho said Commissioner may in 3’our absolutediscretion deem to be, by reason of their implications, financial orotherwise, to or on tho Government, of sufficient importance in thopublic welfare to warrant such inquiry and report (hereafter referredto as ‘ relevant tenders ’ and ‘ relevant contracts ’, respective^ : ”
• There followed—an enumeration in very general terms of “ relevanttenders ” and “relevant contracts
Paragraph 2 (so far as relevant) continues as follows :
“ (2) making such recommendations as 3*011 the said Commissionerdeem neccssaiy as a result of the inquuy to provont the recurrenceof such abuses in tho future, and, in particular, with regard to thelaw, practice and proccduro relating to the custody, receipt, scrutin}ror disposal of tenders for the performance of contracts withGovernment departments, the giving or performance of suchcontracts, and tho supervision of tho performance of suchcontracts: ”
Following upon this thero are two paragraphs in tho following terms :
“ And I do hereby direct }*ou, tho said Commissioner, to recommendto me tho action that should bo taken against tho persons, if any,whom 3*011 have found to be guilty of any such abuses :
Aid I do heroby authorise and appoint 3^011, tho said Commissioner,to hold all such inquiries and mako all such investigations into thoaforesaid and othor like matters as may appear to 3rou to bo necessary,and require 3*011 to transmit to me, with as littlo delay as possiblo,a roport thereon under 3'our hands : “
By section 7 of the Commissions of Inquiry Act the Commissioner haspower inter alia to require tho evidence of an3f witness to bo given onoath or affirmation and—
“ to summon any person rosiding in Ce}*lon to attend any meetingof tho commission to give ovidence.”
By section 10 it is provided—
“ Evor3r olfenco of contempt committed against or in disrespectof tho authority of a commission appointed under this Act shallbo punishable by the Supremo Court or any Judge thereof under
143
LORD GUEST—Rcilnagopal v. The Attorney-General
Soction 47 of tho Courts Ordinanco as though it ■were an offenco ofcontompt committed against or in disrospoct of tho authority ofthat court-”
Soction 11 contains provision regarding service of summonses.
Section 12 provides—
“ (1) If any porson upon whom a summons is served under thisAct—
fails without causo, which in tlio opinion of the commissionis reasonable, to appear boforo tho commission at the time andplace mentioned in tho summons ; or
rofuses to bo sworn or, having been duly sworn, refuses or failswithout cause, which in the opinion of tho commission isreasonable, to answer any quostion put to him touching thematters directed to bo inquired into by tho commission ; •
such porson shall be guilty of the offenco of contempt against or indisrespect of tho authority of tho commission.”
Subsection 2 of section 12 is in tho following terms :
“ (2) Whoro a commission determines that a person has committedany offence of contompt (referred to in subsection (1)) against orin disrespect of its authority, tho commission may cause its secretaryto transmit to tho Supromo Court a certificate setting out suchdetermination ; every such certificate shall bo signed by tho chairmanof tho commission, or where tho commission consists of only oneperson by that person.
In any proceedings for tho punishment of an offence of contemptwhich the Supremo Court may think fit to take cognizance of as. provided in section 10, any documents purporting to bo acertificate signed and transmitted to tho court, undor subsection (2)shall—
(а)bo rocoivod in evidence, and bo deemod to bo such a certificatewithout further proof unless tho contrary is proved ; and
T,
(б)bo conclusive ovidcnco that the determination sot out in thocertificate was made by tho commission and of tho facts statedin tho determination.”
By section 47 of tho Courts Ordinanco it is provided that the SupremeCourt has power to tako coguisanco of and try in a summary mannerany offence of contempt committed againstor in disrospoct of the authorityof itsolf or any othor Court.
LORD GUEST—Ttalnagopal v. The Attorney-Qtntral
149
Tho Commissioner commenced tho inquiry proceedings on 2ndSeptember 1967. After a number of witnesses had given evidenco onoath, the appellant after being duly summoned to attend as a witnessappoared at tho proceedings on Sth January 1968. Boforo tho proceedingscommonccd tho appellant placed boforc tho Commissioner an affidavit inwhich ho alleged that ho had no confidence in tho Commissioner becausetho Commissioner was associated cither as a shareholder or a directorin a number of companies with which tho company (in which theappellant’s wife was tho chief shareholder and of which ho (tho appellant)was Overseas Representative) would be in business competition. Thoappellant also stated that ho was not residing in Ce3*lon havingsurrendered his passport and bocomo registered as a British citizen. Aftermaking certain observations regarding tho allegations contained in thoappellant’s affidavit the Commissioner directed the appellant to bo swornor take an affirmation. Tho appellant then said that ho would not proceedfurther with tho proceedings. Ho was again called upon by thoCommissioner to take tho oath or affirmation and to testify: 'Thoappellant again doclined.
On 16th January 1968 tho Commissioner issued a certificate in termsof section 12 (2) of the Commissions of Inquiry Act in which thoCommissioner after narrating tho facts as above stated :
“ When directed to bo sworn or affirmed, he rofused to proceedany further and refused either to bo sworn or to give evidenco. Indoing so, lie has been guilty in my viow of contempt of thisCommission.”
Tho matter then proceeded by means of a Rule under Soot ion 47 oftho Courts Ordinance directing tho appellant to show cause.
The judgment of tho Supreme Court was given on 9th April 1968 andthe relevant order was issued on 15th April 196S in which it was adjudgedthat tho appellant was guilty of the offence of contempt committed againstand in respect of tho Commissioner.
Three points wero taken by the appellant before their Lordships. Apoint regarding service of the summons was excluded when special leaveto appeal was granted. It was argued, firstly, that tho appointment oftho Commissioner was ultra vires of the Act; secondly, that the appellantwas not residing in Cejdon at tho relevant timo and that tho Commissioneraccordingly had no jurisdiction to summon him to attend as a witness,and thirdly, that the appollant had reasonable causo to refuso to giveevidence on the ground that tho Commissioner in view of his conflict ofinterest might bo biased against tho appollant.
The main question which arises accordingly is whether the appointmentof the Commissioner in terms of the warrant was ultra vires and invalidhaving regard to the powers of the Governor-General under section 2of the Commissions of Inquiry Act. Under that section he is empowered
J 7153 (9/09)
15U
LORD GUEST—Rain a go pul v. The Attorney-General
if it appears to him to be necessary that an inquiry should be held andinformation obtained as to any matter in respect of which an inquirywould in his opinion be in the interests of the public safety or welfareto appoint a Commission of Inquiry to inquire into and report upon thematter. When the appointment of the Commissioner is examined it willbe found that the scope of the inquiry is left entirely to the Commissioner’sdiscretion. In effect he is empowered to inquire into whether during theperiod in question any abuses occurred in relation to such tenders andsuch contracts as the Commissioner should in his absolute discretiondeem to be by reason of their implications financial or otherwise on theGovernment of sufficient importance in the public welfare to warrant aninquiry and report. Under the terms of the warrant the Commissioneris being entrusted with deciding what tenders and what contracts requireto be inquired into. Under section 2 of the Act the matter to beinquired into must be one in rcsj^cct of which an inquiry will “ in theopinion of the Governor-General ” be in the interests of the publicwelfare. Under the warrant the Commissioner is given the power ofselecting the matters which he will inquire into and report upon whereasthe selection is by the Act imposed on the Governor-General. The scojicof the inquiry instead of being limited by the Governor-General, as interms of the Act it should be, is to be decided by the Commissioner.Thus the power of selection is by the Gazette delegated to the Commis-sioner. Oh behalf of the respondent it was submitted that in the natureof such an inquiry into a great number of different transactions theremust in the necessity of things be a roving inquiry by the Commissionerat the initial stage in order to decide which matters require investigationand report and that it would be impracticable to remit all the contractsand all the tenders to the Commissioner at the outset. It was suggestedthat when the Commissioner had made this preliminary investigation itmight be open to the Governor-General to appoint the same or anotherCommissioner to inquire into specified matters. This argument isreflected in the point taken bv the Chief Justice in his judgment where liesuggested that if the terms of reference had been drafted in such a formthat the inquiry was to be into all tenders and contracts and if theCommissioner reported that lie had inquired into certain selected mattersthe report would not be rendered invalid because the Commissioner haddecided not to report in the certain other matters. But- the answer tothis point is that the Commission did not take this form and that thevalidity of the appointment of the Commissioner cannot be tested by theresult of the inquiry. It imay be that another form of reference mightby different means have achieved the same end. But their Lordships’attention must be confined to the terms of the actual warrant ofappointment.
The importance of construing section 2 of the Commissions of InquiryAct quite strictly is illustrated when section 12 (1) (i>) is considered. Inthat section the safeguard provided to a witness against being required toanswer irrelevant questions is to be tested b}’ whether tlie question touchesthe matter directed to be inquired into by the Commissioner. If the
LORD GUEST—Rat nagojtal i The Attorney-General
151
nmbit of the inquiry is not limited to any particular matter but is atlarge, then there would be no limit to the questions which a witnessmight be obliged to answer.
Their Lordships have reached the conclusion that for these reasonsthe appointment of the Commissioner was vltra vires of the Act andcannot stand. It follows that the conviction for contempt by the SupremeCourt must be set aside.
Such a decision rendors unnecessary an examination of the remainingpoints taken by the appellant, but as they were forcefully argued theirLordships propose quito shortly to state their views.
The appollant argued that as ho was not “ residing in Ceylon ” on therelevant date he was not amenable to the jurisdiction of tho Commissionerunder sectioxr 7 of tho Act . Tho Supreme Court havo carefully examinedthe facts in relation to the appellant's visits to Ceylon-and.tlioinLordshipsagree with tho view of the Supreme Court that no intention of permanentlyresiding in Ceylon is necessary in order that tho appellant may fallwithin the terms of the section. They do not propose to elaborate furtheron tho necessary requirements of residence. There was clearly matorialin tho facts as narrated by the Supremo Court upon which they could holdthat tho appollant was residing in Ceylon at tho relevant time. If thepoint had been alive, their Lordships do not consider that any reasonshad boon shown why they should interfere with the Supreme Court’sjudgment.
Tho last matter related to the allegation of bias or interest made againsttho Commissioner. This arose in relation to the appellant’s refusal tobo sworn under the power given to tho Commissioner by section 7 (b) oftho Act. The appollant submitted that he had rcasonablo cause to rofusoto tako part in tho proceedings on the ground cf the Commissioner’sinterest and possible bias and he was therefore not guilty of contemptof Court. As can be seen from the certificate by the Commissioner whichby soction 12 (3) (b) of tho Act is conclusive cvidenco of the facts thereinstated, his refusal was to being sworn. The offence in relation to sucha refusal is under section 12 (1) (6) absolute. No question of rcasonablocause arises in regard to this refusal. If however the refusal be consideredas a refusal to answer a quostion, this refusal to answer a question maywell not be justified by an allegation of bias or interest on tho part of tboCommissioner. It is the Commissioner’s duty to require a witness toanswer a question touching tho matter directed to be inquired into by theCommissioner. Whether his refusal is without reasonable cause relatesto tho form of the quostion. It is unlikely that tho section would imposeon the Commissioner the duty of deciding whether ho is a suitable personto require tho witness to answer a question. He is appointed asCommissioner by tho Governor-General and his authority to require awitness to answer a question derives from section 12. But quite apartfrom those technical considerations their Lordships agree with tho views
152
Nona v. Engal'hxnahamy
oxprossod by the Supreme Court that tho allegations of bias and interestaro vaguo and unsubstantial and quite insufficient to justify thoappellant’s rofusal to tako part in tho proceedings. If thereforo thislatter point had boon open thoir Lordships would liavo agreed with thejudgment of the Suprome Court.
Thoir Lordships will therefore humbly adviso Her Majesty that thoapjioal should be allowed and that tho Dccroo of tho Supreme Court bywhich tho appellant was adjudged guilty of contompt and was punishedaccordingly should be set aside. Thorc will bo no order as to tho costsof tho appeal.
Appeal allowed.