Sri Lanka Law Reports
(1998) 2 Sri LR.
RAJAGURU, INSPECTOR-GENERAL OF POLICE
v.RANGE BANDARA AND OTHERS
SUPREME COURTFERNANDO, J.,
WIJETUNGA, J. AND
A. DE Z. GUNAWARDANA, J.
S.C. APPLICATION NO. 128/96
Application for revision/review – Judgment of the Supreme Court – FundamentalRights – Interpretation of Articles 15 (8), 55 (5) and 126 of the Constitution.
The petitioner (Inspector-General of Police) who was the 2nd respondent in theabove application and whose order for the summary transfer of the petitioner inthat application (a Sub Inspector) was quashed by the Court later applied for areview of the judgment and for an interpretation of certain Articles of the Con-stitution by a fuller Bench.
Article 15 (8) of the Constitution does not permit derogation from Article12 in the case of members of the Police Force otherwise than by meansof law. For the purpose of Article 15 (8) "Law" means only legislation.
Article 55 (5) does not purport to impose any limitation on the jurisdictionof the Court under Article 126.
Before he invoked the jurisdiction under Article 126 the petitioner neednot have exhausted all other remedies such-as redress from the Ministerof Defence, the President, the Public Service Commission or the Inspector-General of Police.
Per Fernando, J.
"The Questions of Law and fact sought to be raised by the Inspector -General of Police for the first time are patently untenable, and do not meritconsideration by a fuller Bench. The application is thus wholly devoid ofmerit, quite misconceived and inexcusably delayed. . .“
APPLICATION for revision and/or review of a judgment of the Supreme Court*
Cur. adv. vult.
*1997 – 1 – SLR
SC Rajaguru, Inspector-General of Police v. Range Bandara and others 97May 21, 1998
ORDER OF COURT
For the reasons stated in our judgment dated 26.9.97, in which thefacts are fully set out, we quashed the order of the 2nd respondent(the Inspector-General of Police) summarily transferring the petitioner(a Sub-Inspector) from Weerambugedera to Moratuwa. In thisorder, the parties are referred to as in the original applicationSC No. 128/96.
More than six months later, on 2.4.98, the 2nd respondent filedthis application – which is described as being "an application forrevision and/or review, and an application under article 132 of theConstitution for consideration by a fuller Bench, and an applicationfor the interpretation of Article 15 (8), under Articles 118, 125 and126 read with Article 12 of the Constitution and an application tointerpret sections 114 (e), (j) and (h) and section 63 (2) of the EvidenceOrdinance, as matters of general and public importance".
The petitioner had been serving as officer-in-charge,Weerambugedera, from August, 1992; by a Police message receivedon 5.1.96, he was informed that the 2nd respondent had ordered histransfer to Moratuwa, as a sub-inspector (supernumerary) with effectfrom 5.1.96. He filed an application under Article 126 on 30.1.96alleging that that transfer was not in terms of the Establishments Codeand the Departmental regulations, but had been made at the requestof the 3rd respondent, an Attorney-at-law and the SLFP chief organizerfor Polgahawela. Leave to proceed was granted on 5.2.96, and aninterim order staying the transfer was made on 16.2.96.
The petitioner says that on 6.1.96 he "called on the 3rd respondent".The 3rd respondent admits that he gave the petitioner a letter dated6.1.96 (P7), addressed to the 1st respondent, the Deputy Minister forDefence, stating that at the 3rd respondent’s request one sub-inspectorRatnatilleke had been transferred from Puttalam to Weerambugedera(in the Polgahawela electorate) with effect from 6.1.96, and that inconsequence the petitioner had been transferred to Moratuwa. Herequested that the transfer of the petitioner, who was a good, honestand efficient (or enthusiastic) officer, to Moratuwa be cancelled andthat he be transferred to a place like Kegalle, Kandy or Anuradhapura.
Sri Lanka Law Reports
(1998) 2 Sri LR.
The petitioner says that he posted that letter to the 1st respondenton 13.1.96, along with a covering letter (P7A) addressed to the 1strespondent.
The relevant portions of the affidavits of the 1 st and 2nd respond-ents, dated 8.3.96 and 12.3.96, have been quoted in our judgment.The 1st respondent did not frankly admit or deny the receipt of P7and P7A, but claimed that he had no personal recollection as towhether P7 had been received by him. He did not say what stepshe had taken to have his files checked to see whether there hadbeen any such correspondence, and if so what action had been taken.The 2nd respondent said that he was unaware of P7 and P7A,necessarily implying that even if P7 and P7A had reached the 1strespondent, the 2nd respondent had not received them (or copies)from the 1st respondent.
Neither the 1st nor the 2nd respondent suggested any reason whythe 3rd respondent should have falsely stated that he had made arequest for the transfer of SI Ratnatilleke.
The petitioner then filed a counter-affidavit dated 19.4.96, andproduced (as P8) a letter dated 6.2.96 signed by Major S. M. Wijeratne,as private secretary to the 1st respondent, addressed to the petitioner.The subject-matter was stated to be the variation of the transfer ofthe petitioner. That was an acknowledgement of the receipt of a letter(date unspecified) addressed to the 1st respondent. P8 stated that,on the instructions of the 1st respondent, that letter had been referred,for suitable action, to the Inspector-General of Police, to whom allfuture queries should be addressed, and P8 also indicated that, onthe directions of the 1st respondent, a copy of P8 was being sentto the Inspector-General of Police, for suitable action and reply,together with the letter in question (presumably, the original).
During the sixteen months between then and the hearing, the 1stand 2nd respondents made no attempt to contradict that affidavit; orto clarify the position as to the receipt of P7 and P7A by the 1strespondent, and their transmission to the 2nd respondent, and whetherP8 referred to P7 and P7A or to some other letter.
As for the petitioner's transfer, the 2nd respondent's position wasthat it was "a continuation of the end of the year transfers for 1995";that the decision to transfer him "to a distant station" was taken after
SC Rajaguru, Inspector-General of Police v. Range Bandara and others 99
considering two reports (made in October, 1994), and because he"was made aware that some other complaints against the petitionerwere pending"; and that he considered a transfer necessary "so thatproper inquiries could be conducted".
Several questions of fact arose. Had SI Ratnatilleke beentransferred at the 3rd respondent's request? Had P7 and P7A reachedthe 1st respondent? Had P7 and P7A been forwarded on the 1strespondent's instructions to the 2nd respondent? Had the 1st and 2ndrespondents denied or adequately explained – the 3rd respondent'sstatement that SI Ratnatilleke had been transferred at the 3rd respond-ent's request? Finally, were the transfers of SI Ratnatilleke and thepetitioner normal year-end transfers for 1995?
In the 2nd respondent's recent affidavit dated 2.4.98, he makesreference both to the letters P7, P7A and P8, as well as to the 1995year-end transfers. He claims that the 1st respondent had, in hisaffidavit dated 8.3.96, "admitted having received a letter from thepetitioner and the fact that his Private Secretary, Major S. M. Wijeratneacknowledged that letter by P8". That averment is quite incorrect,because the 1st respondent had made no such admission. Furtherhe admits that "According to P8, P7 and P7A had been forwardedto the 2nd respondent … for necessary action". However, elsewherein the same affidavit he says, inconsistently, that "P8 … did NOTprove that it referred to P7 and P7A. Copies of P7 and/or P7A wereNOT sent to the IGP by either registered mail or ordinary mail orin any other manner". He also says that P7A is not a true copy ofthe covering letter which the petitioner sent to the 1st respondent,but does not produce that covering letter even now to verify the truthof his allegation.
These are all matters which were within the knowledge of the 1stand 2nd respondents: Did the 1st respondent receive P7 and P7A?What exactly was acknowledged by P8, and forwarded to the 2ndrespondent with a copy of P8? Did the 2nd respondent receive thatcopy of P8, and if so what – if anything – was annexed thereto?They had ample opportunity to clarify the position and to producethe relevant documents from the official files, between 19.4.96 and21.8.97. The 2nd respondent did not do so then, and has not doneso even now. His present affidavit does not frankly admit or denywhether P8 and its enclosure(s) were received by him, and does notannex whatever document he did receive if Pd reached him.
Sri Lanka Law Reports
(1998) 2 Sri L.R.
There is thus absolutely no reason to reconsider our finding thatthe 3rd respondent probably did request the transfer of SI Ratnatilleketo Weerambugedera; that as a result it became necessary to transferthe petitioner out of Weerambugedera; and that the petitioner'stransfer was thus the consequence of the 3rd respondent's request.
As for the 1995 year-end transfers, the 2nd respondent now refersto new material in support of this claim that the petitioner's transferwas just one of 69 year-end transfers. Since SI Ratnatilleke's namewas on the same list of transfers, it must necessarily follow that histransfer too was one of the 1995 year-end transfers. The 2ndrespondent has produced a circular dated 11.7.95 signed by him inhis (then) capacity of Senior DIG (Administration) for the Inspector-General of Police. That circular stipulates the following, inter alia:
Such transfers will be made either on application by the officerconcerned, or upon a nomination by supervisory officers (therewas never a suggestion that the petitioner made any suchapplication);
Nominations were possible only in respect of two categories:
those whose work and conduct were considered unsatis-factory and whose transfer out of the Division was considereddesirable: these had to be in Form 51 (pink);
those who had completed 8 years, service in the Division:these had to be in Form 51 (white);
The OIC Divisions had to forward nominations, with his personalcomments and recommendations, to the Range DIG by 31.7.95;the latter had to send them to Headquarters by 10.8.95; TransferBoard decisions had to be conveyed by 1.9.95; the closing datefor appeals was 20.9.95; and Appeal Board decisions had tobe communicated by 15.10.95;
No nominations were to be entertained after the closingdate, unless delay was due to unforeseen or unavoidablecircumstances.
SC Rajaguru, Inspector-General of Police v. Range Bandara and others 101
There are two significant aspects of this scheme. The first is thesafeguard of a decision by the Transfer Board subject to an appealas well. If nothing else, the grant of a right of appeal implies a dutyto give reasons. The second is that the scheme contemplated thatin general there would be no summary transfers; an officer would knowthat he was being transferred by mid October, more than two monthsbefore the commencement of the next year, thus facilitating hisarrangements about housing, spouse's employment, and, mostimportant, children's schooling. Indeed, the circular specified, amongother guidelines, that "the ages of children must be given and if atransfer would affect schooling it must be clearly indicated withreasons"..The scheme did not contemplate that an officer could bedenied the safeguards implicit in the scheme, by delaying orwithholding a "nomination", and then summarily dealing with histransfer as a "continuation of the end of the year transfers"; the samesafeguards applied, mutatis mutandis.
Since SI Ratnatilleke's name was on the same list, it follows thatthere should have been either a pink or a white form for him. Hisform, as well as the petitioner's, has not been produced even now;and there is no explanation why the petitioner's transfer was delayedbeyond the stipulated deadline. But we do have the 3rd respondent'scategorical assertion that transfer was at the 3rd respondent's request.
As for the reasons for the petitioner's transfer, the only two reportswhich the 2nd respondent mentioned were those of October, 1994;the second, dated 28.10.94, was from DIG, Kurunegala, to the 2ndrespondent. He has now produced the sequel to that report. By amemorandum dated 21.12.94, the DIG, Personnel, asked the DIG,Kurunegala, what action had been taken on the seven complaintsreferred to in that report. The reply, minuted on 3.1.95, was that allthe allegations had been dealt with, except a 316 charge pendingbefore the Mediation Board; reference was made to a report "appearingat pages 3 to 4", which has not been produced. There are twohandwritten minutes, of February, 1995, "lay by". Those are the sameallegations in respect of which the 2nd respondent said in his originalaffidavit: "many of the complaints had to be dropped due to lack ofevidence whilst some other complaints had been withdrawn or settledon a later date before steps could be taken to conduct a fuller inquiryor to prosecute the petitioner".
Sri Lanka Law Reports
(1998) 2 Sri LR.
Assuming that a "nomination" under the 1995 year-end transferscheme was nevertheless possible on the basis of those allegations,the process should have commenced by July, 1995; the TransferBoard decision and reasons should have been communicated by1.9.95; and the petitioner ought not to have been deprived of his rightof appeal, and of his right to a timely decision on appeal by 15.10.95.The fact that 2nd respondent has produced neither the relevant pinknomination form, nor any part of the proceedings of the Transfer Boardor the Appeal Board, indicates that some other transfer procedurehad been followed for the petitioner, and perhaps also for SI Ratnatilleke.
The new material produced by the 2nd respondent thus confirmsthat, beyond doubt, the petitioner's transfer was not in accordancewith the circular which he himself issued on 11.7.95. It confirms thepetitioner's claim that his transfer was not in terms of the departmentalregulations.
There is thus no reason whatever to consider issuing notice ofthe 2nd respondent's present application on the other parties.
As noted in our judgment, that judgment does not precludedisciplinary proceedings against the petitioner for any past misconduct,or his transfer, in accordance with the applicable rules and regulations.
It is, however, necessary to refer to some other aspects of thisapplication. A petitioner has to lodge an application under article 126within one month. Here eighteen months elapsed between the grantof leave to proceed and the hearing; the 2nd respondent had ampleopportunity to place all the material he wished to before the Court,but he did not seek to reply to the petitioner's counter-affidavit of19.4.96. After judgment was delivered on 26.9.97 the petitioner, althoughrepresented by the Attorney-General, apparently took no steps toobtain advice about seeking review, for nearly four months until21.1.98. While the proxy he had given the state attorney remainedin force, another attorney-at-law (presumably on the instructions ofthe state attorney, cf. Rule 4 of the Code of Conduct and Etiquettefor attorneys-at-law) advised him on the merits of a revision appli-cation. That delay of nearly four months in seeking advice isunacceptable, as is the subsequent delay of over two months in filingthis application. However, the 2nd respondent seeks to explain thatdelay, by giving all sorts of reasons. One is that "the Jayasikuruoperation was to recapture the Northern and Eastern Provinces
SC Rajaguru, Inspector-General of Police v. Range Bandara and others 103
from the LTTE terrorists. . . I was extremely busy with the attendantwork in the operations"; another is that “the Provincial CouncilElections in the North-Eastern Provinces doubled the work of thePolice Department". Errors and omissions are possible in affidavits,but the Head of the Police Force should have been able, withoutany difficulty, to describe correctly the objective of the Jayasikuruoperation, as well as the nature of the elections which took placerecently in the Jaffna District. Such a lack of care and accuracy, ina 23 page affidavit stated to have been drafted by counsel and "readover and explained" by a DIG (instead of an independent Justiceof the Peace), creates doubts as to the reliability of the other aver-ments therein.
Having delayed for over six months to file this application until2.4.98 – which was one but the last working day for the first term- it was tendered with a letter addressed to the Registrar from thenew registered attorney-at-law stating that counsel who would beappearing to support the application was a practitioner in Australia;that he was “long overdue in Australia to appear in the cases hehas undertaken to do there"; that cases in which he is appearingare adjourned until his arrival in Australia; and that "any day in Aprilwould be convenient". Since the second term commenced on 27thApril, the Court was in effect being asked to fix this application forone of the last four days of April – regardless of benches alreadyconstituted, and other cases set down, much earlier, for hearing duringthat period, as well as of the need to issue notice on the other partiesgiving them adequate time for preparation. Undoubtedly, the judiciaryin the course of its service to the community in the administrationof justice does consider the convenience of Attorneys-at-law, but neverto the extent of subservience to their convenience.
In support of that request two facsimile messages from Australiawere annexed to the 2nd respondent's affidavit, in order "to emphasisethe need to obtain priority to get this case listed at your earliest".One facsimile message is dated 13.2.98 and refers to an appointmentin District Court chambers on 17.2.98, while the other is dated 16.3.98and refers to a hearing on 10.4.98. The messages do not indicatethat counsel was required for either matter. In any event, they haveno bearing on counsel's alleged inability to appear in Sri Lanka inMay or thereafter.
Sri Lanka Law Reports
(1998) 2 Sri LR.
Other submissions have been simply thrown into the 2ndrespondent's petition. One is that Article 15 (8) permits derogation fromArticle 12, in the case of members of the Police Force, otherwisethan by means of legislation: that is patently untenable, because "law"is defined; in regard to the entire chapter on fundamental rights, "law”includes only legislation, save in the exceptional cases whereemergency regulations are expressly included; and the definition of"written law" is totally irrelevant. Another is that Article 157 recognisesbilateral treaties, and that the court should therefore have consideredthe Universal Declaration on Human Rights and the InternationalCovenant on Civil and Political Rights. In what way that would haveaffected our decision is not stated. An examination of Article 157reveals that it is confined to bilateral investment treaties (entered intofor the specific purpose of promotion and protection of foreign invest-ments in Sri Lanka) after approval by Parliament in the mannerprescribed therein, and has no application in this instance. A thirdargument is that Article 55 (5) gives only a limited power to this Courtin respect of transfers of police officers. It is enough to say that Article55 (5) does not purport to impose any limitation on the jurisdictionof this Court under Article 126. Finally, it is urged that "an applicantmust exhaust all the other remedies under the law, if available, beforehe invokes [the jurisdiction under Article 126] . . : and the petitionerfailed to [first] seek redress from the Minister of Defence, HerExcellency the President, the Public Service Commission or theInspector-General of Police or the District Court". All these contentionsare wholly devoid of merit, and were quite rightly not urged by learnedstate counsel who appeared at the original hearing. *
The material now furnished by the 2nd respondent confirms thefindings of this Court in its judgment delivered , on 26.9.97. Thequestions of law and fact sought to be raised for the first time arepatently untenable, and do not merit consideration by a fuller bench.The application is thus wholly devoid of merit, quite misconceived, •and inexcusably delayed, and there is therefore no reason to issuenotice on the other parties. The application is rejected.
FERNANDO, J. – I agree.
WIJETUNGA, J. – I agree.
GUNAWARDENA, J. – I agree.