033-SLLR-SLLR-1999-V-2-RAJAPAKSE-v.-TISSA-DEVENDRA-CHAIRMAN-PUBLIC-SERVICE-COMMISSION-AND-OTHERS.pdf
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Rajapakse v. Tissa Devendra, Chairman,
Public Service Commission and Others
331
RAJAPAKSE
v.TISSA DEVENDRA,
CHAIRMAN, PUBLIC SERVICE COMMISSION AND OTHERS
SUPREME COURTFERNANDO, J.,
AMERASINGHE, J. ANDGUNASEKERA, J.
S.C. APPLICATION NO. (FR) 310/96MAY 28, 1999.
Fundamental Rights – Interdiction of an officer – Appropriate procedure for takingdisciplinary action – Article 12 (1) of the Constitution.
The petitioner who was a Director of Customs was interdicted from service bythe Public Service Commission and a charge-sheet containing five allegations wasserved on him. The petitioner was required to show cause within a month whyhe should not be dismissed or otherwise punished. The petitioner did not respondto that communication but instead, filed an application before the Supreme Court.He complained that no statement was recorded from him; nor was he asked toexplain before he was interdicted; and no preliminary investigation was conductedbefore serving the charge-sheet.
Held:
The allegation that there was no preliminary investigation prior to the interdictionof the petitioner was without foundation. There was no discrimination; and therewas no need for the petitioner's statement to be recorded for that was not aprescribed requirement.
APPLICATION for relief for infringement of fundamental rights.
Romesh de Silva, PC with Palitha Kumarasinghe for the petitioner.
R.K. W. Goonesekera with J. C. Weliamuna for the 10th respondent.
S.Marsoof, PC, Addl. Solicitor-General for the 1st to 9th and 11th and 12threspondents.
Cur. adv. vult.
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June 23. 1999AMERASINGHE, J.
The petitioner joined the Customs Department as a casual clerk in1965 and was promoted to the posts of Class I Customs Officer,Superintendent of Customs, Assistant Director of Customs and DeputyDirector of Customs. On the 20th of April, 1993, the petitioner wasinformed that he had been allowed one year's extension of serviceuntil the 2nd of May. 1994, when he would reach the age offifty-eight. The then Director-General of Customs, Mr. L. A. Heengama,by a publication dated the 28th of January, 1993, called for applicationsfor four posts of Director of Customs from Deputy-Directors whosatisfied certain specified requirements. There were eleven applicants,of whom ten presented themselves for interview. The Interview Boardmade the following recommendations:
”. . . We found that [the petitioner] had an exemplary perform-ance after his promotion to the grade of Deputy Director. Noneof the other candidates had any record equal to that of [thepetitioner]. However, we find that there is a requirement that theapplicants should have a service of five years in the Staff Grade.[The petitioner] has only 3 years of such service. If the AppointingAuthority feels that he should be promoted in view of his excellentservice record and waive the service requirement, we recommendthat he be promoted above the others."
By letter dated the 27th of May, 1993, the Secretary to the PublicService Commission informed the Secretary to the Ministry of Finance,and the Director-General of Customs of the appointment of fourpersons, as Directors of Customs. The petitioner was not one of them.In SC Application No. 274/94, the petitioner challenged the decisionof the Public Service Commission.
My brother Fernando, J. for the reasons set out in his Lordship'sjudgment, held that the petitioner had been denied equal treatmentin violation of Article 12 (1) of the Constitution in insisting on a servicequalification in excess of what was stipulated in the publication of the
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Public Service Commission and Others (Amerasinghe, J.)
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28th of January, 1993, calling for applications for the posts of Directorof Customs, and by denying him the opportunity of establishing thathe had the qualifications to be appointed Director of Customs. ThePublic Service Commission was directed, among other things, to issuethe petitioner a letter appointing or promoting him as Director ofCustoms (with effect from the same date as the four officers referredto in the Commission's letter dated the 27th of May, 1993. Thepetitioner was declared entitled to resume work forthwith, asDirector of Customs, and to continue to work as.if he had receivedtwo annual extensions of service up to the 2nd of May, 1996. Mybrother, Dheeraratne, J. and I concurred with the opinion of ourbrother Fernando, J.
Pursuant to the decision of this Court, by a letter dated the 8thof November, 1995, the petitioner was appointed a Director of Customs.He was appointed as Director of Customs (Air Cargo), Katunayake.
The petitioner alleged that he requested the 10th respondent,Mr. P. Weerasekera, the Director-General of Customs, not to transferhim to Katunayake "since there were numerous threats on thepetitioner's life … but he did not pay any heed to this request".The petitioner was attacked by certain persons and sufferedsevere physical injuries.
After recovering from the injuries he had sustained, the petitionerreported for duties on the 4th of January, 1996. On the 15th ofFebruary, 1996, he was served with a charge-sheet alleging thecommission of five offences. On the 16th of February, 1996, thepetitioner received a letter from the Secretary of the Public ServiceCommission together with a covering letter from the Director-Generalof Customs, the tenth respondent, interdicting him from further service.The correspondence stated, among other things, that a charge-sheetwould be served on the petitioner in due course.
A charge-sheet dated the 14th of February, 1996, was served onthe petitioner containing five allegations of misconduct. The petitionerwas required to submit an explanation within a month why he shoulc^not be dismissed from service or otherwise punished. The petitioner
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did not respond to that communication but, instead, filed the applicationbefore me.
Learned counsel for the petitioner endeavoured in a most persua-sive manner to explain away each of the five charges against thepetitioner. Such explanations ought, in my view, to be submitted tothe Public Service Commission, for it is that body that was empoweredto issue the charge-sheet, consider the explanations of the petitionerand decide what further action it should take. It is my consideredopinion that I should refrain from commenting on matters referred toin the charge-sheet, lest I should either encroach on the functionsof the Public Service Commission or even unwittingly prejudice thedisciplinary inquiry.
Article 55 of the Constitution, among other things, states as follows:
Subject to the provisions of the Constitution, the appointment,transfer, dismissal and disciplinary control of public officers ishereby vested in the Cabinet of Ministers, and all public officersshall hold office at pleasure.
The Cabinet of Ministers shall not delegate its powers ofappointment, transfer, dismissal and disciplinary control inrespect of Heads of Departments.
The Cabinet of Ministers may, from time to time, delegate itspowers of appointment, transfer, dismissal and disciplinary controlof other public officers to the Public Service Commission. . .
Subject to the provisions of the Constitution, the Cabinet ofMinisters shall provide for and determine all matters relating topublic officers, including the formulation of schemes ofrecruitment and codes of conduct for public officers, theprinciples to be followed in making promotions arid transfers,and the procedure for the exercise and the delegation of thepowers of appointment, transfer, dismissal and disciplinary controlof public officers . . ."
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Public Service Commission and Others (Amerasinghe, J.)
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Vo1. II, ch. XLVIII, section 2 of the Establishments Code issuedby the Secretary to the Ministry of Public Administration under theauthority of the Cabinet of Ministers in 1981 states as follows:
"2 : 1 The power of dismissal and disciplinary control of publicofficers is vested in the Cabinet of Ministers, who willdirectly exercise these powers in respect of –
Additional Secretaries to Ministries, Heads of Depart-ments, Government Agents and Senior AssistantSecretaries.
: 2 The Cabinet of Ministers has delegated its powers ofdismissal and disciplinary control in respect of all othercategories of officers to the Commission.
2:2:1 The Commission has delegated its powers ofdismissal and disciplinary control in respect of all othersuch categories of officers in Staff Grades to Secretariesto Ministries, except …"
On the 26th of February, 1992, the Public Service Commissionin a circular letter (No. 01/92) addressed to all Secretaries, Headsof Departments and Government Agents stated:
"The Cabinet of Ministers has vested the Public Service Commis-sion (PSC) with the powers of appointment, transfer, dismissal anddisciplinary control of all public officers other than the Heads ofDepartments and above in terms of Article 55 (3) of the Constitution."
Circular No. E. 01/92 lays down certain "guidelines" in order toimplement the decision of the Cabinet with effect from the 1st of March,1992. On the face of it, the "guidelines" were intended to apply to"All Island Services" specified in the Circular; "Combined Services(Non-Staff)" and "Officers other than those in the All Island Servicesand the Combined Services".
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The petitioner filed Circular No. E. 01/92 and Circular No. 03/92as part and parcel of his petition and stated that "in terms of thesaid circulars of the Public Service Commission a preliminaryinvestigation must be conducted by the 11th respondent (sic) andnotes and report of such investigations must be forwarded tothe Public Service Commission”. The petitioner stated that “No pre-liminary inquiry has been conducted in respect of the alleged offencesby the 10th respondent and/or the 11th respondent and/or the PublicService Commission; as such there was no report and/or notes ofpreliminary investigation by the 11th respondent (sic) in respect ofthe alleged offences".
It was not, as supposed by the petitioner, incumbent on the 11threspondent, the Secretary to the Ministry of Finance, or the PublicService Commission itself, to make any preliminary investigation priorto the issue of the charge-sheet.
The petitioner's case is based on the assumption that CircularNo. E. 01/92 and Circular No. 03/92 on the question of "DisciplinaryControl" were applicable to his case. Circular No. E. 01/92 stated asfollows:
”3:5:1 Secretaries to Ministries should conduct preliminaryinvestigations and interdict officers where necessary. The draft charge-sheet together with the connected papers should be forwarded to thePSC. As the PSC is the Disciplinary Authority in respect of theaforementioned services, the PSC will issue a charge-sheet."
Circular No. 03/92 stated as follows :
"Following clarifications are made on instructions given underpara. 3 : 5 of the Public Service Commission Circular No. E. 01/92:
: 1 Where disciplinary action is contemplated against an officerit is incumbent on the Secretary to the Ministry to cause preliminaryinvestigations to be carried out and completed with the least possible%lela'y . . .
SCRajapakse v. Tissa Devendra, Chairman,.
Public Service Commission and Others (Amerasinghe, J.)337
3:2 All draft charge-sheets should conform substantially to FormA appended hereto, and when forwarded for Public ServiceCommission approval should bear the certificate of the staff officerwho drafted it to the effect that they are correct and in order. Certifiedcopies of notes and the report of the preliminary investigations, alongwith any other relevant documents should be forwarded together withthe draft charge-sheet STRICTLY (sic) under confidential cover. .
It will be seen that there was no duty on the Secretary, the 11threspondent, himself to hold the preliminary investigation; he wasrequired to "cause preliminary investigations to be carried out". Aswe have seen, the Cabinet of Ministers retained disciplinary powersover certain categories of officers and delegated their powers inrespect of other officers to the Public Service Commission. Sections3 – 5, ch. XLVIII, vol. II of the Establishments Code separately setout (a) the procedure for disciplinary action by the Cabinet of Ministers;
the procedure for disciplinary action by a Secretary to a Ministry;and (c) the procedure for disciplinary action by a Head of Department/Public Officer holding delegated authority. What would be relevantin the case of a person like the petitioner would be the "Procedurefor Disciplinary Action by. the Secretary to a Ministry". With regardto the matter under consideration, namely, whether there wascompliance with the relevant provisions governing disciplinary actionby the Secretary, section 4 states as follows :
"4 : 1 Where the disciplinary action is contemplated against anofficer … the Head of Department will cause to be made suchpreliminary investigations as are necessary.
: 2 If a prima facie case against the officer is disclosed thedisciplinary authority will furnish the officer with a statement of thecharges against him, and call for his explanation to the chargeswithin the stipulated period . . ."
As we have seen, the relevant disciplinary authority, namely, thePublic Service Commission, furnished the petitioner with a statementof the charges against him. The petitioner's complaint is that this wasdone without a preliminary investigation. The Additional Solicitor-General,
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Mr. Marsoof, assisted us by drawing attention to the fact that thesubject of "Preliminary Investigations into Alleged Offences" is dealtwith in section 9, ch. XLVIII, vol. II of the Establishments Code. Itstates as follows :
“9 : 1 Investigations of the type referred to in section . . . 4 :
1 … are purely a fact finding process and do not constitute apreliminary inquiry. They are meant to be a search for material thatmay disclose an offence and provide evidence for the charges thatmay be framed against an officer under suspicion. This may involvethe recording of statements of witnesses and the search for anexamination of documents. The suspect officer or any other personon his behalf need riot be present when any statements arerecorded. . ."
The tenth respondent, the Director-General of Customs, who wasthe petitioner's Head of Department, stated in his affidavit that the"correct procedure was followed in the disciplinary matter and for-warding the charge-sheet." The first respondent, the Chairman of thePublic Service Commission, in his affidavit stated that the charge-sheet was issued "in accordance with the recommendations made inpursuance of the preliminary investigations made in respect ofaforesaid charges".
It is evident from the statement of charges that the charges werebased on the evidence of the witnesses and the documents mentionedtherein. The petitioner was expressly invited to examine the documentsmentioned in the charge-sheet. The petitioner in the circumstancescannot be heard to complain that there was no preliminary investigationbefore the statement of charges was issued. I am unable to acceptthe petitioner's averment that the charge-sheet was merely "the endresult of several malicious and mala fide acts of the 10th respondent".
The Public Service Commission issued the petitioner a letter ofinterdiction. Section 3 of Public Service Commission CircularNo. 03/92 states that a preliminary investigation should be carried outwith the least possible delay. It is further stated as follows : "Whereit is considered undesirable that an officer should continue to exercise
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Rajapakse v. Ttssa Devendra, Chairman,
Public Service Commission and Others (Amerasinghe, J.)
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the functions of his office he may forthwith be interdicted by theSecretary and covering approval of the Public Service Commissionobtained therefor promptly, after reporting the full circumstances thatled to such interdiction". Section 21 : 1 of ch. XLVIII, vol. II, of theEstablishments Code states as follows :
"Where it is considered undesirable that an officer should continueto exercise the functions of his office, he may forthwith be interdictedfrom office by the disciplinary authority provided that disciplinaryproceedings or criminal proceedings have been initiated or are aboutto be initiated on charges which if established are sufficiently seriousto warrant his dismissal . .
The petitioner prayed that this Court directs the 1st to 10threspondents “to withdraw the letter of interdiction dated 14th February,1996, marked "A18" and/or to set aside the said letter of interdiction. . The petitioner alleged that "no statement was recorded fromthe petitioner nor was he asked to explain either by the 10th respond-ent or 11th respondent or by the Public Service Commission beforeserving the letter of interdiction on him. No preliminary investigationwhatsoever was conducted by the 1st to 10th respondents beforeserving the charge-sheet". He stated that "no officer in the CustomsService has ever been interdicted without preliminary inquiries". Thepetitioner stated that the letter of interdiction was "illegal and/or ultravires in that provisions in para (3) (Disciplinary Proceedings) of PublicService Commission Circular No. 3/92 . . . have not been adheredto by the Secretary in this instance". The petitioner stated that theletter of interdiction was "discriminatory, mala fide, arbitrary andcapricious".
The 10th respondent in his affidavit stated that “there was aninquiry to the satisfaction of the Department before the interdictionof the petitioner". The first respondent, the Chairman of the PublicService Commission, in his affidavit stated as follows :
6 (a) … in pursuance of preliminary investigations conducted bythe 10th respondent in respect of allegations of irregularities andmisconduct levelled against the petitioner, recommendations weremade finding the petitioner guilty of the charges submitted along with
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the letter of the 10th respondent dated 6. 2. 96. I annex marked 1R1the said recommendations made in consequence of the saidpreliminary investigations conducted in this regard.
(b) . . . upon receipt of the said proceedings relating to theinvestigations and the recommendations made thereon and uponbeing satisfied with the evidence adduced in support of the saidcharge, an order was made interdicting the petitioner with effect from14. 02. 96. I annex marked 1R2 the said letter of interdiction issuedto the petitioner . . ."
The procedures laid down in the Public Service Commission Circularsand in the Establishments Code have been followed in interdictingthe petitioner : his allegation that there was no preliminary investi-gation, as we have seen, is without foundation, and therefore hisallegation that he was the only officer in the Customs Service whohad been interdicted without a preliminary investigation, must berejected. There was no discrimination. There was no need for thepetitioner’s statement to be recorded, for that was not a prescribedrequirement. The letter of interdiction was issued by the Public ServiceCommission, and it did so on the basis of the investigations andrecommendations of the Head of the petitioner's Department, and wasnot arbitrary or capricious. ”
For the reasons stated in my judgment, I hold that the petitioner'sfundamental rights guaranteed by Article 12 (1) of the Constitutionhave not been violated and I dismiss the application.
The petitioner has made very serious charges against the 10threspondent personally, more for the purpose of generating heat thanfor shedding light on matters relevant to his application. Consequently,the 10th respondent has ben compelled to have his interests watchedby learned counsel. I, therefore, make further order that the petitionershall pay the tenth respondent a sum of Rs. 25,000 as costs.
FERNANDO, J. – I agree.
GUNASEKERA, J. – I agree.
Application dismissed.