RAMAMOORTHY v. DOUGLAS DEVANANDA AND OTHERS

024-SLLR-SLLR-1999-V-2-RAMAMOORTHY-v.-DOUGLAS-DEVANANDA-AND-OTHERS.pdf


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RAMAMOORTHY
v.DOUGLAS DEVANANDA AND OTHERS
SUPREME COURTFERNANDO, J.,
WADUGODAPITIYA, J. ANDGUNASEKERA, J.
S.C. SPECIAL (E)
APPLICATION NO. 2/99 WITHS.C. SPECIAL (E)
APPLICATION NO. 3/99MARCH 24, 1999.
Expulsion of a Member of an Independent Group – Article 99 (13) (a) ofthe Constitution – Validity of the expulsion – Non-co-operation with the Group
Failure to explain alleged misconduct – Wilful failure to attend disciplinary inquiry
Ex parte decision to expel the Member – Natural justice.
The petitioners were Members of Parliament representing Independent GroupNo. 2 which contested the 1994 election for the Jaffna District. In allthere were 09 Members of the Group who had been selected by the Eelam People'sDemocratic Party (the 10th respondent). In June, 1997, the petitioner in thisapplication and the petitioner in the connected SC special (E) applicationNo. 3/99 were expelled from the group which expulsion was declared invalidon an application made to Court in terms of Article 99 (13) (a) of the Constitution.Thereafter, the 1st respondent (the Leader of the Group) summoned a meetingof Members of Parliament of the Group for 9.9.97, inter alia to call for theexplanation of the petitioners in respect of vilifications made againstthe Group and its leader. But, the petitioner replied that he would not attend it.Following this event the petitioner adopted a persistent and wilful policyof non-co-operation with the Group and its activities and failed to attend Groupmeetings. He also failed without excuse to speak in debates in Parliament asrequired by the Group. The 1st respondent called for the petitioner's explanationpursuant to a decision of the Group. By letter dated 23.3.98, the 1st respondentcalled for the petitioner's explanation for the allegation of misconduct set outtherein. The petitioner failed to give an explanation.
He was given extensions of time and every possible opportunity to explain.But, he did not respond. Hence, on a decision of the Group a Committeeof three was appointed to hold a disciplinary inquiry into the conduct ofthe petitioner.
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The petitioner informed the Committee that the meetings of the group weremala Me and that he will not attend meetings of the Committee of Inquiry.The Committee gave the petitioner a further date but the petitioner did notattend. Instead, he replied threatening to take disciplinary action against the Group.As such the Committee held an ex parte inquiry and recommended tothe Group immediate disciplinary action. The Members decided to expelthe petitioner which decision was communicated to him by letter dated 31.1.99setting out the grounds for the expulsion. By a letter of the same date thepetitioner in the connected SC Special (E) application No. 3/99 was also expelled.
Held:
The ruling of the Court in 1997 in favour of the petitioner in respectof the June, 1997, expulsion was not a bar to the impunged disciplinaryproceeding. The previous ruling was on the ground that there was abreach of the audi alteram partem rule (a procedural flaw). It didnot hold that the charges were unfounded. In any event the earlier expulsionwas on the basis of alleged misconduct before June, 1997. The secondexpulsion was based on subsequent misconduct alleged to have takenplace in September and December, 1997.
The fact that two of the members of the Committee of Inquiry werealso members of the first Committee of Inquiry did not justify the allegationof bias for the reason that at the later inquiry the charges weredifferent. In any event, by his failure to take the objection before theCommittee the petitioner had waived the plea of bias.
Even though there was no formal charge-sheet framed by the Committee,the letter dated 23.3.98 addressed to the petitioner gave him adequatenotice of the substances of the allegations of which he was found guilty.
Per Fernando, J.
‘Natural justice in this respect is concerned with the substance, andnot with mere form: . . . what is required is that the substance of theallegation be communicated with sufficient precision and clarity to enablethe person charged to know what he has to meet.”
The petitioner had no right to have been served with a copy of thereport of the Committee before it was considered by the Group.In the context of his conduct and persistent refusal to attend the inquiryor even to attend the Group meetings at which the said report wastabled and discussed, it is frivolous and vexatious to claim in proceedingsbefore the Court that he was denied access to the report before it wasconsidered by the Group.
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Per Fernando, J.
‘It is not unreasonable to conclude that the petitioner had totally repudiatedhis obligations to the Group, thereby manifesting an intention no longer tofunction as a part of the Group. Although the petitioner did not expresslyresign from the Group, resignation might well have been implied from hisconduct.'
Case referred to:
1. Jayatilleke v. Kaleel (1994) 1 Sri LR 319, 345.
APPLICATION under and in terms of Article 99 (13) (a) of the Constitution
challenging expulsion from membership of a recognized Independent Group.
W. Abeyakoon, PC with E. Thambiah for the petitioner.
D. Wickremanayake with U. Abdul Najeem for the 1st-08th and 10th
respondents.
9th, 11th and 12th respondents absent and unrepresented.
Cur. adv. vult.
March 30, 1999.
FERNANDO, J.
Thirteen candidates were nominated by the "Independent GroupNo. 2" (the Group), which contested the 1994 General Electionfor the Jaffna District. Ten of these candidates had been selectedby the Eelam People's Democratic Party (the 10th respondent), andthree by the United National Party. On the votes polled, the Groupbecame entitled to nine seats; and based on the preferences obtained,nine nominees of the 10th respondent – the petitioner, the 1st re-spondent, the 3rd to 8th respondents, and another person – weredeclared elected as Members of Parliament for the Jaffna District. Thatninth person resigned shortly thereafter, and – on the basis of thepreferences obtained – was succeeded by the petitioner's brother, the9th respondent (who is the petitioner in-SC Special (E) 3/99). Wewere informed that the three nominees of the United National Party
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were not made respondents because they had resigned from theGroup.
Both petitioners were expelled from the Group by letters dated
They filed applications on 26.2.99 challenging their expulsion.The Chief Justice nominated this bench to hear those applications.When we took up this application for hearing, counsel agreed thatthe decision in respect of this application would apply to SC Special(E) No. 3/99 as well.
These applications are a sequel to two similar applications filedby the same petitioners in respect of their previous expulsion in June,1997 (SC Special (E) Nos. 1 & 2/97, SCM 21.8.97). There it washeld that no charge-sheet had been served on the petitioners, andno explanation called for in regard to the acts of misconduct allegedagainst them; and that although a request had been made to themon the telephone – to come for a "formal inquiry" – that was totallyinadequate.
Immediately thereafter, the 1st respondent as Leader of the Group,summoned a meeting of the Members of Parliament of the Groupfor 9.9.97, to be held in the Parliamentary Complex. One of the itemson the agenda was to call for an explanation from the petitioners"in respect of vilifications made, and being made, against [the Group]and its Leader" by the petitioners. The petitioner replied on 9.9.97that the meeting had been summoned with the intention of expellinghim and stated that he would not attend. According to the 1strespondent, the Parliamentary Group met regularly thereafter in theroom allocated for the use of the Group in the Parliament; noticesof meeting were sent to all Members, together with a copy of theminutes of the previous meeting; copies of all the notices and minutes(from September, 1997, to February, 1999) were annexed. Eight suchmeetings were held in 1997, but the petitioner did not attend any,although on many of those dates he did attend sittings of Parliament,and gave no excuse for not attending.
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Mr. D. W. Abeyakoon, PC, relied on the petitioner’s statement inhis counter-affidavit, that he "only received some of the notices andminutes of the meetings", but not all. What the petitioner had receivedwas entirely within his knowledge, and the onus was on him to identifythose without ambiguity – and that he could easily have done simplyby reference to the dates of the documents produced by the 1strespondent, without even troubling to annex copies of what he hadreceived. That omission becomes all the more significant becausetwice – in letters dated 23.3.98 and 28.12.98 – the 1st respondenthad asserted that notices and minutes of all meetings had been sentto the petitioner; but the petitioner failed to deny that in his repliesdated 4.4.98 and 4.1.97.
There can be no doubt, therefore, that the petitioner did receivenotices and minutes of all the meetings of the Group.
The notices and the minutes of those meetings show that manymatters relevant to the Group were being discussed. Turning to thesecond issue relevant to this case, on 10.11.97 the Group decidedthat Members should speak during the Committee Stage of the Budgetdebate, and to the minutes of that meeting was annexed a list ofMembers, the subjects, the dates, and the periods of time allocatedfor them to speak. The petitioner was scheduled to speak on 25.11.97on the votes of the Ministry of Forestry and Environment and on2.12.97 on the votes of the Ministry of Science and Technology, forjust five minutes on each occasion. A copy of the minutes of themeeting of 10.11.97 was forwarded to the petitioner with a noticedated 18.11.97. It is common ground that the petitioner did not speakon those two occasions, but gave neither an excuse nor anexplanation. However, in his counter-affidavit the petitioner alleged thathe had been allocated subjects which were not familiar tohim in order to embarrass him, but did not claim that he was unawarethat he had been allocated time to speak. Accordingly, it mustbe assumed that the decision had been communicated to him in time.
SC Ramamoorthy v. Douglas Devananda and Others (Fernando, J.) 253
The question of disciplinary action against the petitioner wasdiscussed at several meetings; although the Group decided over andover again that disciplinary action should be taken and/or that hiswritten explanation should be called for, no steps were taken untilMarch, 1998. By letter dated 23.3.98 the 1st respondent called forhis written explanation:
"From 9th September, 1997, I had been summoning our Par-liamentary Group meetings before the Parliament meets everymonth. For these meetings, the notices were sent along with theagenda to all of our Group Members, including you.
It is observed that you had not only failed to attend any ofthese Parliamentary Group meetings up to now, but also failed togive any valid reasons for your absence from these meetings.Further, you had also failed to carry out the decisions of theParliamentary Group, specifically with regard to the time allocationfor the speeches to be made on behalf of the Independent GroupNo. 2 during the last Budget Debate in the Parliament.
Under these circumstances, the Parliamentary Group of theIndependent Group No. 2 has come to the conclusion that youappear to be wilfully refusing to co-operate with pur Group in itsactivities and failing to comply and respect the decisions of ourGroup.
Therefore, the Parliamentary Group has unanimously decidedand authorised me to call for your explanations as to why disci-plinary action should not be taken against you.
Please note that your explanations in writing should reach meon or before 6th April, 1998, to enable me to forward the sameto our next Parliamentary Group meeting for its consideration andappropriate action. If you fail to respond to this letter, I shall assumethat you have no explanations to offer and shall refer the matterto our Parliamentary Group for appropriate action."
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The minutes show that the matter was considered thereafter atseveral meetings. Thus, on 5.5.98 the Group noted that althoughno explanation had been received, “as the postal service in the countrywas disrupted, it was reasonable to give more time to both tosend their replies". The minutes of the meeting of 23.6.98 recordedthat the petitioner's reply dated 4.4.98 had been received only on28.5.98, and noted that he had only said that “a reply will be sentsoorf. That reply made no complaint about the contents of theletter of 23.3.98 or the procedure. The matter came up again atseveral subsequent meetings, and on 6.11.98 it was decided toobtain legal advice. A copy of the minutes of that meeting was sentto the petitioner with a notice dated 9.11.98.
At the meeting held on 9.12.98 the Group decided to appointa Committee of Inquiry (the Committee) consisting of the 4th, 5th and8th respondents; to call for an oral explanation from thepetitioner before the Committee; and that the Committee should meetand hold the inquiry on 28.12.98 at 10.00 am in Parliament.The 1st respondent was authorised to communicate this decision tothe petitioner, and to request him to appear before the Committeeto give his oral explanation. A copy of the minutes of that meetingwas sent to the petitioner with a notice dated 14.12.98; and by letterdated 17.12.98 the 1st respondent told the petitioner:
“By your letter dated 4.4.1998 you had written . . . that a replywill be sent very soon. But, so far you have not sent a replyto my letter.
The above matter was considered at the Meeting of theIndependent Group 2 on 9.12.1998. To bring this matter toan end very quickly, it was decided at that Meeting to appoint aCommittee of Inquiry in order to obtain verbal explanation from you.In accordance with that decision a Committee of Inquiry wasappointed with [the 4th respondent as President and the 5th and6th respondents] as Members. Further, it was decided that theInquiry should be conducted at the Office of the Independent Group2 situated in the Parliament." [translation supplied by the petitioner]
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The petitioner's reply dated 22.12.98 was that:
”… Since I have not replied to your letters calling forexplanation as such no letter was sent for the Meeting that decidedto appoint an Inquiry Committee for which I was to attend . . .
… I am aware that Meetings were conducted to takeactions against me and not for any other good intentions.I consider that all actions that are being taken against me, afterthe Supreme Court decision are with a narrow view. Hence,I would like to inform you again that nothing good will come outof my attending these Meetings." [translation supplied by thepetitioner]
The petitioner did not appear before the Committee on 28.12.98,and the 1st respondent again wrote to him the same day:
"… Not only invitations were sent to you for the Meetingsthat took place this year, even the Minutes were sent. If necessarycopies of these could be sent to you.
. . . Therefore, to give you another ultimatum, it has beendecided to conduct and complete the Inquiry on the forthcoming5.1.1999. By this, I kindly request you to be present at the Officeof the Independent Group 2 situated in the Parliament at 10.30am. The Inquiry Committee with [the 4th respondent as presidentand the 5th and 6th respondents] as Members will conduct theInquiry." [translation supplied by the petitioner]
The petitioner replied on 4.1.99 that:
"… I consider that you are constantly troubling me for youhave a grudge against me since you lost in the Supreme Court.
I have stressed over and over again that types of Meetings areonly to take action against me and not with any other good intention.
. . . Knowing that more than 400 are buried in the Chemmanicemetery, has the Jaffna Independent Group taken any action sofar in any of the Meetings?
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There are 795 Remand Prisoners detained in Kalutara withoutInquiries for several years. After knowing this has the IndependentGroup 2 taken any action? . . .
If there is no suitable reply for questions as above I and manyother Jaffna District Members jointly proposed to appoint an InquiryCommittee against you is for you to know, who is to blame andtake action against whom.’ [translation supplied by the petitioner]
He did not appear before the Committee even on 5.1.99.
The Committee was, therefore, compelled to proceed ex parte. Itfound the allegations proved, and recommended immediatedisciplinary action. The Group considered the Report of theCommittee on 18.1.99. The Members agreed with the findings andunanimously decided that the two petitioners should be expelled.The 1st respondent conveyed that decision to the petitioner by letterdated 31.1.99, together with the reasons therefor:
“(1) You have wilfully absented yourself from the eight con-secutive meetings of the Parliamentary Group referred toin this letter.
You have wilfully not complied with the decisions of theParliamentary Group, specifically by not speaking duringthe 1997 Budget Debate in Parliament.
You have wilfully desisted from giving written explanationsto the points raised in my letter of 23.3.1998.
You have wilfully kept away from the inquiry into yourconduct by a three-member Inquiry Committee, which wasscheduled for 28.12.1998, and then postponed for 5.1.1999due to your absence on the first date.
Your above-mentioned actions clearly imply that you havewilfully contravened declarations (1), (3) and (5) of the
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Oath of the Independent Group 2 of the Jaffna ElectoralDistrict, which Oath signed on 5.7.1994 had beendeclared by the Supreme Court of Sri Lanka as theConstitution of the Independent Group 2."
The findings of the Committee were substantially to the sameeffect.
Mr. Abeyakoon made several submissions in support of hiscontention that the expulsion was bad in law. First, he contendedthat immediately after this Court ruled in favour of the petitioner inrespect of the June, 1997, expulsion, the 1st respondent took stepsdirected at his expulsion, commencing with the meeting of 9.9.97.However, that cannot be considered as unlawful or improperbecause this Court did not hold that the charges in respect ofwhich the petitioner had first been expelled were unfounded: onlythat there had been a procedural flaw, namely, a 'breach of the audialteram partem rule. That decision was, therefore, not a bar todisciplinary proceedings in respect of the very same charges.In any event, it is quite clear that those charges necessarily relatedto misconduct alleged to have occurred before June, 1997, andthe charges resulting in the second expulsion were plainly basedon subsequent misconduct alleged to have taken place in Septemberand December, 1997.
Mr. Abeyakoon's second argument was that the findings of theCommittee were vitiated by bias, because two members (the4th and the 8th respondents) had also been members of thefirst Committee of Inquiry. Had the Committee being inquiring into thevery same charges different consideration might have arisen. Here,plainly, the charges were different, and that particular objection – ofhaving formed a view and thus prejudged the matters in issue – cannotbe taken. Further, the Group consisted of only nine Members.Excluding the two petitioners, and the 1st respondent whom thepetitioners had criticised as being "dictatorial", “systematically hostile",etc., there were only six members to choose from. I doubt whetherthe Group was obliged to choose the three who had not functionedon the first Committee. If that principle has always to be applied, the
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consequence would be that there would be no one qualified to inquireif ever a third set' of charges arose.
There is another consideration which is a complete answer toMr. Abeyakoon's objection. As Wade observes:
“The Court normally insists that the objection shall be taken assoon as the party prejudiced knows the facts which entitle himto object. If, after he or his advisers, know of the disqualification,they let the proceedings continue without protest, they are heldto have waived their objection and the determination cannot bechallenged." (Administrative Law, 5th ed, page 430).
The petitioner was aware of the composition of the Committeenot later than 22.12.98 when he replied to the 1st respondent'sletter of 17.12.98; the minutes of the meeting of 9.12.98 would probablyhave reached him’ even before. Even in his letter dated 4.1.99 hedid not take the objection. Thus, he let the Committee continue itsproceedings without protest, and thereby waived this plea of bias.
Third, it was contended that the letter dated 23.3.98 was not acharge-sheet; that no proper charge-sheet was ever served on thepetitioner; and that in any event it was the Committee, and not the1st respondent, which should have served the charge-sheet. Naturaljustice in this respect is concerned with the subtance, and not withmere form: see Jayatilleke v. KaleePK What is required is that thesubstance of the allegation be communicated, with sufficient precisionand clarity to enable the person charged to know what he has tomeet. The requirements of the law relating to criminal procedure asto indictments and charges do not apply.
It is quite clear from the letter dated 23.3.98 that the petitionerwas being charged with having failed to attend every single meetingheld in 1997, without giving valid reasons, and with having failed tocarry out the decision of the Group “specifically" in regard to speakingin Parliament during the 1997 Budget debate. The reference made,in a general way, to failing "to carry out the decisions of the Group",would not have justified (in the absence of particulars) a finding that
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there had been non-compliance with any other decision. However,there was no decision on that basis. That letter also made it clearthat in those circumstances the petitioner appeared to be wilfullyrefusing to co-operate with the Group in its activities, and that dis-ciplinary action was contemplated. I hold that the petitioner hadadequate notice of the substance of the allegations of which he waslater found guilty.
The submission that the Committee itself should have servedthe charge-sheet is quite unfounded. Almost invariably the practicein disciplinary proceedings is that an inquiring officer or a committeeof inquiry is appointed only after a charge-sheet has been served,an explanation received, and such explanation is found to be unsat-isfactory. There is no justification at all for the submission that it isonly the Committee of Inquiry which could prepare and serve thecharge-sheet. Such a procedure would have been appropriate for aninquisitorial body.
Mr. Abeyakoon then submitted that the Committee should havesent a copy of its report to the petitioner, and called for his obser-vations, before that report was considered by the Group. That is arequest which the petitioner did not make even on 4.1.99, when hevirtually defied the 1st respondent and the Group-making allegationsagainst the Group and threatening to appoint a Committee of Inquiryto probe them. I hold that the petitioner had no such right. Furthermore,the petitioner had the opportunity of perusing the Committee's reportand making representations to the Committee and/or to the wholeGroup. That report was tabled at the Group meeting on 7.1.99, anddiscussion was postponed for 18.1.99; notice was given on 14.12.98of the first of those meetings, and on 11.1.99 of the second; the secondnotice expressly stated that the question of disciplinary action againstthe petitioner would be considered on 18.1.99. Nevertheless, thepetitioner refused to attend either of those meetings. Having failedfor several months to submit an explanation, having refused to participatein meetings, and to appear before the Committee, and having failedto avail himself of the opportunity of commenting on the report at therelevant Group meetings, it is frivolous and vexatious now to claimin these proceedings that he was denied access to the report beforeit was considered by the Group.
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Mr. Abeyakoon's fifth contention was that other Members of theGroup who had absented themselves from meetings, or had notspoken in Parliament, were not subjected to disciplinary proceedings,and that there had thus been discrimination against the petitioner.Those matters should have been raised in his explanation, before theCommittee, and at meetings of the Group both before and after theCommittee submitted its report. They cannot be entertained for thefirst time in this Court, for that would be to take over functions ofthe Committee.
Finally, it was claimed that the Committee had found the petitionerguilty of matters with which he had not been charged. Mr. Abeyakoonconceded that the Committee was justified in holding that the petitionerhad wilfully refused to reply to the letter dated 23.3.98, and to appearbefore the Committee on 28.12.98 and 5.1.99. As for the two specificcharges, he conceded that the Committee was justified, on the availablematerial, in concluding that the petitioner had failed to attend all eightGroup meetings held in 1977 and that this was non-co-operation; andthat he had deliberately failed to participate in the Budget debate,in breach of party discipline. While he did submit that the petitionerhad a reason for this – that he was not familiar with the subject -he acknowledged that the petitioner had failed to communicate thisexplanation to the Committee, as he should have. It is not for thisCourt to entertain pleas which the petitioner deliberately refrained fromsubmitting to the Committee.
. Mr. Abeyakoon strenuously urged that the Committee had foundthe petitioner guilty – without a specific charge having been framed- of acting contrary to clauses 1, 3, and 5 of the "pledge" which theEPDP nominees of the Independent Group had signed in July, 1994,as a condition of receiving nomination. The three relevantclauses were;
to act according to the decision of the Secretary-General of theEPDP who is the Leader of the Group;
within the Group, not to act contrary to the policies of the EPDP,and upon a breach to abide by the decision taken by the Leaderof the Group and Secretary-General of the EPDP;
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5. if elected to Parliament, to restrict his Parliamentary activitiesto the decision of the Leader of the Group and Secretary-General of the EPDP.
The effect of this “pledge" was considered in SC Special Nos.(E) 1 & 2/97:
"… just as much as the party constitution is an agreementor contract between persons for the purpose of association,the "pledge" is a contract between the parties intended to ensureconformity with party politics."
Mr. Abeyakoon admitted that the Group has no constitution or rules.The pledge must therefore, be regarded as settihg out the basis onwhich the EPDP members of the Group decided to associate as aGroup. Mr. Abeyakoon strenuously contended tha the pledge gavethe 1st respondent dictatorial powers, and that the petitioner wasforced to sign it in order to get nomination.
It would seem that the Committee did not find the petitioner guiltyof a breach of the "pledge" as a distinct and separate ground:the expulsion letter shows that the Committee only found that his"above-mentioned actions" imply a contravention of the "pledge". Withor without the "pledge", a prolonged refusal to attend Group meetings,without prior excuse or subsequent explanation, and a refusal toperform an important function of a Member of Parliament, wouldunquestionably be a serious breach of discipline of any political party,or group. When to that is added a defiant refusal to attend an inquiryintended to ascertain his explanation, it is not unreasonableto conclude that the petitioner had totally repudiated his obligationsto the Group, thereby manifesting an intention no longer tofunction as a part of the Group. Although the petitioner did notexpressly resign from the Group, resignation might well have beenimplied from his conduct.
In my view, the petitioner cannot question the validity or proprietyof the pledge in these proceedings. The. Group, almost from theinception, was substantially a part of the EPDP, although in relation
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to Parliament it had a separate identity. In the circumstances, adecision that the objectives, policies and Parliamentary activities ofthe Group should coincide with those of the EPDP was notunreasonable. Whether those were to be determined by theentire membership, or a committee, or a single individual, was pri-marily a matter for the members. The above three clauses of thepledge reflect an acceptance by the Group that it would be theLeader of the Group, who is also the Secretary-General of the EPDP,who would communicate and even determine them. If thepetitioner was later unable to agree with the “pledge", he should haveraised the issue within the Group and before the Committee of Inquiry.Even assuming that he might be entitled to question the “pledge"outside the structures of the Group, he cannot do so in theseproceedings for the first time.
For the above reasons, I determine that the expulsion of thepetitioner was lawful and valid. I award the 1st to 8th and 10threspondents a sum of Rs. 15,000 as costs, payable by the petitioner.
WADUGODAPITIYA, J. – I agree.GUNASEKERA, J. – I agree.Expulsion of the petitioners upheld.