034-SLLR-SLLR-1997-V3-RANGE-BANDARA-v.-GAN.-ANURUDDHA-RATWATTE-AND-ANOTHER.pdf
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RANGE BANDARA
v.
GEN. ANURUDDHA RATWATTE AND ANOTHER
SUPREME COURT.
FERNANDO, ACJ.,
WIJETUNGA, J. ANDGUNAWARDENA. J.
S.C.. APPLICATION (F.R.) NO. 128/96AUGUST 21,1997.
Fundamental Rights – Transfer of a Police Officer – Misuse of power – Arbitrarydecision – Article 12( 1) of the Constitution.
The petitioner, a sub-inspector of Police who was attached to theWeerambugedera Police Post in the Kurunegala District as Officer-in-Charge wastransferred by the 2nd respondent, Inspector-General of Police (IGP) toMoratuwa. This was in consequence of a request by the 3rd respondent theS.L.F.P. Chief Organiser for Polgahawela to appoint another officer as O.I.C.Weerambugedera Police Post. However, the 3rd respondent issued a letter to the1st respondent Deputy Minister of Defence stating that the petitioner was anefficient and an honest officer and requesting him to transfer the petitioner to astation close to Kurunegala. That request was forward by the 1st respondent tothe I.G.P. At the hearing of the application the I.G P.'s position was that theimpugned transfer was a normal transfer. He also stated that the transfer waseffected additionally on disciplinary grounds.
Held:
The summary transfer of the petitioner to a distant place was a misuse ofdiscretion. The decision to transfer was arbitrary, capricious, and unreasonableand violative of the petitioner’s rights under Article 12(1).
Per Fernando, ACJ.
“The evidence in this case shows that what happened was not the result of amistake or error of judgment, but of a misuse of . . . powers, of a kind whichdemoralises and demotivates the victim, and indirectly the entire service".
Cases referred to:
Leelaratne v. Herath. S.C. 145/86 S.C. Minutes 9 March 1987.
Tennakoon v. de Silva, 1997 – 1 SLR 16.
APPLICATION for relief for infringement of fundamental rights.
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Range Bandera v. Gen. Anuruddha Ratwatte
and Another (Fernando, ACJ)
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Chula Bandara for the petitioner.
S. Rajaratnam, RC., for the 1st, 2nd and 4th respondents.R. K. W. Goonasekera, for 3rd respondent.
Cur. adv. vult.
September 26.1997.
FERNANDO, ACJ.
Having joined the Police service in 1983 as a constable, thepetitioner was appointed a sub-inspector in 1990. After completinghis training he was posted to Ampara and thereafter to Gokarella;and in August 1992 he was appointed Officer-in-Charge,Weerambugedera Police Post, which was upgraded in 1994 as aPolice station. For administrative purposes, in the Police service theKurunegala district is sub-divided into three divisions – Kurunegala,Kuliyapitiya, and Nikaweratiya – and Weerambugedera is in theKurunegala division. By a Police message received on 5.1.96, thepetitioner was informed that the 2nd respondent, the Inspector-General of Police, had ordered his transfer to Moratuwa, as a sub-inspector (supernumerary) with effect from 5.1.96. He filed thisapplication under Article 126 on 30.1.96 challenging that transfer.This Court granted leave to proceed under Article 12(1) on 5.2.96,and made an interim order staying the transfer on 16.2.96,whereupon he was sent to Kurunegala on 13.3.96.
All Counsel agreed that the power to transfer officers of thecategory to which the petitioner belongs had been delegated to theInspector-General of Police by the Public Service Commission (PSC).
It is the petitioner’s case that the transfer was not in terms of theEstablishments Code and the Departmental regulations, but hadbeen made at the request of the 3rd respondent, an Attorney-at-Lawand the S.L.F.P. Chief Organiser for Polgahawela. He says that on
he met the 3rd respondent, who admits that he then gave thepetitioner a letter dated 6.1.96 (produced as P7), addressed to the1st respondent, the Deputy Minister of Defence, under whom thePolice service comes. In that letter the 3rd respondent stated that at
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his request one sub-inspector Ratnatilleke had been transferredfrom Puttalam to Weerambugedera (in the Polgahawela electorate)with effect from 6.1.96; that in consequence the petitioner had beentransferred to Moratuwa; that the petitioner was an efficient, good andhonest Police officer; that he had a host of personal difficulties; andhe therefore requested that the transfer to Moratuwa be cancelled,and that the petitioner be transferred to a place like Kegalle, Kandyor Anuradhapura. The petitioner says that, along with a coveringletter (produced as P7A) addressed to the 1st respondent, he postedthat letter to the 1st respondent on 13.1.96. That covering letterexpressly stated that a letter from Mr. Ihalagama, Attorney-at-Law, the"Government Party” Chief Organiser for Polgahawela, was enclosed.
The 3rd respondent did not expressly say in P7 that his request forthe transfer of SI Ratnatilleke had been made to the 1st respondent.However, the problem which had arisen was a consequence of thatrequest, and it therefore seems natural for the 3rd respondent to haveasked the same person to whom he had made that request (ratherthan a third person) to deal with the consequential problem. On theother hand, if that request had been made to someone other than the1st respondent, the 3rd respondent would have had to mention thatfact in P7, in order to make the 1st respondent aware of thebackground. I therefore understand the "request” mentioned in P7 tobe a request made to the 1st respondent to transfer SI Ratnatilleke.
In his affidavit dated 8.3.96 the 1st respondent said:
“5. … While l am unaware as to whether the petitioner has in hisdiscussion with the 3rd respondent, as set out in his affidavit, [sic]I state that I cannot recall having received any request from thepetitioner to [sic] the 3rd respondent requesting transfer of thepetitioner or Mr. Ratnatilleke, the Sub-Inspector of Police. I statefurther that l have given no instructions or directions to the 2ndrespondent for the transfer of the petitioner or any other officer ofthe police station.”
“6 … lam unaware as to whether the 3rd respondent issued aletter to the petitioner as stated therein. I state further that while I
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have no personal recollection as to whether the said letter… [P7]… was received by me. I verily believe that in terms of sections 5:4and 6:2 of Chapter XXVIII of the Establishments Code, thepetitioner has no right or authority to communicate directly with meand that I am [neither ?] required nor authorised to reply any suchcommunication sent contrary to the said provisions.”
“7. … I deny that I directed or instructed the 2nd respondent totransfer the petitioner. I state that upon receipt of copy of thepetition and affidavit filed by the petitioner I made inquiries fromthe 2nd respondent and was informed that the petitioner wastransferred as part of the year end transfers and the choice ofdistrict and place of transfer was based on exigency of serviceand reports made by the Senior Officers."
“9…. I am personally unaware as to whether the 3rd respondent isthe Chief Organiser for the time being of the PolgahawelaElectorate Division of the Sri Lanka Freedom Party.” [emphasisadded]
There can be no doubt that – before he gave instructions for thepreparation of his affidavit – the 1st respondent did have the petitionand annexes, and that he had made inquiries about the subject-matter from the 2nd respondent. If it was a rare occurrence to receiverequests for the transfer of Police officers, it would have been naturalfor the 1st respondent to have stated more positively, one way or theother, that he had, or had not, received such a request from the 3rdrespondent. Although it might have been contended, therefore, that itwas because he was receiving many such requests that he had nopersonal recollection, I will nevertheless assume in his favour that itwas the heavy burden of his undoubtedly onerous responsibilitieswhich made it difficult to have a personal recollection of relatively lessimportant matters concerning the transfers of sub-inspectors. But inthat event it would have been an elementary precaution – of whichhis legal advisers could not have failed to remind him – to have hisfiles checked to see whether there had been any suchcorrespondence, and what steps had been taken, instead of relyingon his memory alone. Further, the 1st respondent made no mention ofP7A – although annexed to the petition – and in the absence of any
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such reference paragraph 6 of his affidavit amounts to a denial of thereceipt of any letter whatever from the petitioner; a denial which hesought to support by an assertion that the petitioner had no right tocommunicate directly with him. He was therefore disclaiming anyknowledge of P7 and P7A.
As for the 2nd respondent, in his affidavit dated 12.3.96 he saidthat he was unaware of P7 and P7A. That necessarily meant thateven if P7 and P7A had reached the 1st respondent, the 2ndrespondent had not received them (or copies) from the 1strespondent. Although he expressly denied that the petitioner hadbeen transferred at the 3rd respondent's request, he did not deal withor deny the 3rd respondent’s assertion (in P7) that SI Ratnatilleke hadbeen transferred at the 3rd respondent's request. The 2ndrespondent explained the impugned transfer thus:
“7. … I specifically deny that the transfer was made outside thenormal annual transfers of the Department of Police. I state that thetransfer of the petitioner was one of 69 transfers ordered by me on
as a continuation of the end of the year transfers for1995. I annex hereto a copy of the said transfer orders marked2R2. The reasons for the decision to transfer the petitioner to adistant Police Station are set out by me in the followingparagraph of this affidavit."
“8. … While specifically denying that the 1st respondent directedme to transfer the petitioner or that the transfer is contrary to thetransfer procedure of the Police Department, I state as follows:
(a) the decision to transfer the petitioner was taken afterconsidering the reports submitted by the Deputy InspectorGeneral of Police (North Western Range – Kurunegala (reportdated 28.10.1994) and the Senior Superintendent of Police (reportdated 09.10.1994). The material brought to my notice in thesetwo reports clearly indicated that there were several complaintsagainst the petitioner from the members of the Public of the areaand that the petitioner was unsuitable to perform the functions ofan Officer-in-Charge of a station. I annex hereto copies of the saidtwo reports marked 2R3 & 2R4.
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(b) I also gave my conscious attention to the fact that many of thecomplaints had to be dropped due to lack of evidence whilst someother complaints had been withdrawn or settled on a later datebefore steps could be taken to conduct a fuller inquiry or toprosecute the petitioner. I was also made aware that some othercomplaints against the petitioner were pending at the time I tookthe decision to transfer the petitioner. I state that it is for thesereasons that I considered it necessary to transfer the petitionerout of the North Western Province Range so that properinquiries could be conducted and appropriate action could betaken at the conclusion of such inquiries. All material regarding thecomplaints will be made available to Your Lordship’s Court forperusal since I am of the view that the petitioner should not haveaccess to this material at this stage as all the accusations areagainst him." [emphasis added]
The petitioner filed a counter-affidavit dated 19.4.96, producing asP8 a letter which he had received: this was dated 6.2.96 (bearingreference number PS/P/2/79/96) and was signed by Major S. M.Wijeratne, as private secretary to the 1st respondent. The subject-matter was stated to be the variation of the transfer of the petitioner.That was an acknowledgement of the receipt of a letter (dateunspecified) addressed to the 1st respondent. P8 stated that on theinstructions of the 1st respondent that letter had been referred, forsuitable action, to the Inspector-General of Police, to whom all futurequeries should be addressed, and P8 also indicated that, on thedirections of the 1st respondent, a copy of P8 was being sent to theInspector-General of Police for suitable action and reply, togetherwith the letter in question (presumably, the original).
The respondents made no effort to contradict that affidavit, eitherby a counter-affidavit or by producing documents.
Learned Counsel for the petitioner submitted that P8 was proofthat – long before the date of the 1st respondent’s affidavit – the 1strespondent had received P7, and that his denial could not beaccepted; and that P7 and P7A had been referred to the 2ndrespondent, so that these documents had been in the 2nd
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respondent's possession at the time he signed his affidavit, in whichevent it could not be correct that he was “unaware" of them. LearnedState Counsel submitted, however, that P8 was only proof of thereceipt of a letter from the petitioner, and not of P7 which was aletter from the 3rd respondent; but he could not tell us what thatletter was, if it was not P7A.
In view of the 3rd respondent's statement in P7 that he hadrequested the transfer of SI Ratnatilleke to Weerambugedera, itbecomes important to decide three questions: Did the 1st respondentreceive P7A, enclosing P7? And, if so, did his private secretary (byP8) – acting on his instructions – refer P7 and P7A to the 2ndrespondent for suitable action and reply? And did the 2ndrespondent receive P7 and P7A?
The petitioner's version is intrinsically probable. He received asudden transfer order; he went to meet the 3rd respondent, whoexplained that SI Ratnatilleke had been transferred at the 3rdrespondent's request; the 3rd respondent confirmed that thepetitioner was a good and efficient officer, and therefore gave him P7,addressed to the 1st respondent, to help him get a closer station thanMoratuwa. What else was the petitioner to do with P7 except to sendit to the 1st respondent, with a covering letter? P8 affords conclusiveproof that the 1st respondent did receive some letter from thepetitioner. If the 1st respondent’s position is that he received P7A, butnot P7, then – because P7A stated that P7 was enclosed – P8 wouldhave pointed out that nothing was enclosed. On the other hand, if hisposition was that he received neither P7 nor P7A, nevertheless P8amounted to an admission that he had received some letter from thepetitioner, and the only acceptable way to prove that what he hadreceived was not P7 or P7A was to produce the document which hehad actually received. In the absence of any such document, thepetitioner asks the Court to infer that the 1st respondent did receiveP7 and P7A. Further P8 shows that the 1st respondent referred P7and P7A to the 2nd respondent, which means that either the originalsor copies of P7 and P7A were received by the 2nd respondent.Those two respondents had a common legal adviser, and if P8 hadbeen brought to his notice, in the normal course these matters should
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have been probed and the relevant documents should have beenproduced; and if the copy of P8 (and enclosures) intended for the2nd respondent had not reached him. that also would have beenstated. In the absence of that clarification the petitioner asks theCourt to hold that the 1st respondent did receive P7 and P7A; andthat the 2nd respondent received P7 and P7A (or copies) from the 1strespondent.
At the hearing on 21.8.97 learned State Counsel, faced with thesedifficulties, asked for permission to produce the letter or letters whichP8 acknowledged. That was shortly afternoon that day, and we gavehim permission to do so. However, we felt that if additional materialwas being produced at that late stage to clarify one matter, then inthe interests of justice other matters, including the question whetherthe 3rd respondent had communicated with the 1st respondent inregard to SI Ratnatilleke's transfer, should also be probed. For thatreason, we allowed production, provided the entire file wasproduced, and produced immediately – to leave no room forinsinuations of tampering – by 2 o’clock that afternoon, after the lunchadjournment. When we resumed in the afternoon State Counselinformed us that the file had not been traced. This might have beendue to the short notice.
In those circumstances, the failure to produce the document whichP8 acknowledged attracts the presumption under section 114(f) ofthe Evidence Ordinance. On the available evidence, I hold that thepetitioner has established, on a balance of probability, that the1st respondent did receive P7A with P7 annexed; that he did referthose letters, by means of a copy of P8. to the 2nd respondent, foraction and reply; and that the 2nd respondent did receive P8 with itsenclosures. Neither the 1st nor the 2nd resjx>ndent has suggestedany reason why the 3rd respondent should have falsely said that hehad made a request for the transfer of SI Ratnatilleke, and I hold thatthat was probably true. The petitioner’s transfer was thus theconsequence of the 3rd respondent’s request.
I will nevertheless examine the reasons given by the 1st and 2ndrespondents for the petitioner’s transfer, independently of P7 and P8.
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The 2nd respondent stated that it was “a continuation of the end ofthe year transfers from 1995”, and that 68 others were transferred atthe same time. Although he did not make any reference to the"exigencies of service", the 1st respondent claimed that the 2ndrespondent had told him it was on account of the exigencies ofservice. At the hearing, learned State Counsel stated that officers arenot normally transferred from a station until they have served four tofive years, and that a "supernumerary" appointment to a stationmeant that the cadre at that station was already full. If that were so, itwas very relevant that the petitioner had served only three years andfive months at Weerambugedera, and had been transferred as a“supernumerary" indicating that in all probability he was not reallyneeded at Moratuwa.
The 2nd respondent also said that his decision was to transfer thepetitioner “to a distant Police Station” for the reasons set out inparagraph 8 of the 2nd respondent’s affidavit. Why “distant"?Paragraph 8 of the 2nd respondent’s affidavit refers to complaintsagainst the petitioner, and thus suggests that there was a punitive ordisciplinary element to the transfer.
Prima facie, therefore, the transfer was neither a normal annualtransfer nor on account of the exigencies of service.
Was there any material justifying such a transfer to a distant place?And in any event, if that was the real reason, was it proper to withholdthat reason from the petitioner?
Let me recall the 1st respondent's version that on inquiring fromthe 2nd respondent he learned that the transfer was based “onexigency of service and reports made by Senior Officers”. The 2ndrespondent referred to. and relied on, only two reports both made inOctober 1994 {“the material brought to my notice in these tworeports"). Although in paragraph 8(b) he referred to complaintsmade even after October 1994, he did not produce or mention anyreports about such subsequent complaints; instead, he simply saidthat “[he] was also made aware ..The only reasonable inference isthat there had been no reports after October 1994.
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Did the 2nd respondent really act on those two reports? Thereports contained specific recommendations that the petitioner beinterdicted and transferred, and disciplinary proceedings taken. Thatwas not done. If indeed it had been considered necessary to transferhim on the basis of those reports, the 2nd respondent should haveexplained why that was not done at once or as part of the end of theyear transfers for 1994 (effective January 1995).
As for alleged complaints after October 1994, since the 2ndrespondent did not refer to any reports relating to such complaints, itis quite unsafe to act on the 2nd respondent s bare assertion that hewas "made aware” of complaints, particularly because these werenot disclosed to the petitioner so that he could have been heard inhis defence. It is true that the 2nd respondent said that the relevantmaterial would be placed before the Court at the hearing, but neithernatural justice nor the rules of procedure applicable to fundamentalrights application permit any party the unilateral privilege of decidingthat he will furnish evidence in support of his case for the perusal ofthe Judges alone. This Court has recognised that considerations ofnational security may permit an exception (see Leelaratne v. Herath,inbut even then the material relied on must be furnished to the Courtbefore the hearing. Here national security is not involved, and thematerial was not tendered before the hearing. We therefore refused toallow the production of any new material.
But there is a more serious objection to allowing that material to betendered. Not having given the petitioner even an inkling that histransfer was on account of such complaints, and having pretendedthat the transfer was a normal annual transfer – with 68 othertransfers – can the 2nd respondent now be allowed to say that it wason disciplinary grounds, “so that proper inquiries could beconducted”, in respect of the complaints against him? All thecomplaints referred to in the October 1994 reports were notproceeded with, either because they were withdrawn or becausethere was insufficient evidence. Even if there were subsequentcomplaints (i.e. between October 1994 and December 1995), whywas no action taken in 1995? If it was difficult to take action while thepetitioner was at Weerambugedera, why was no charge sheet at
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least served during the 18 months that elapsed between then and thehearing of this application? Surely fairness demanded that thepetitioner be informed early of the allegations made against him?One must remember also that there are complaints and complaints.There are genuine complaints from responsible members of thepublic against dishonest Police officers who misuse their powers, buton the other hand there are false complaints by wrong-doers whenthey are adversely affected by the conscientious discharge of theirduties by honest Police officers. Likewise, complaints are withdrawn,settled, or not pursued, for good reasons as well as for bad. Vagueassertions of ■complaints" against a Police officer can hardly justifya transfer.
In this connection, I must refer to Tennakoon v. de Silva.™There thepetitioner, an Assistant Superintendent of Police, had inquired into fourcomplaints against a sub-inspector – involving rape, bribery, assaultof a Grama Seva Niladhari, and assault of a RPC – and hadrecommended his transfer. But it was the petitioner whowas transferred! And what is more, the then Inspector-General ofPolice sought to justify that transfer on the ground, inter alia, that “if anyofficer is unable to work in harmony with the elected members ofParliament it would not be desirable for such officer to be retained inthat Division".
The 2nd respondent's version is also contradicted by the tworeports which the Senior Superintendent of Police, Kurunegala,submitted after inspecting the Weerambugedera Police station in1995. In his report dated 20.5.95 he concluded:
"Standard of parade in satisfactory. Buildings, premises andvehicles are maintained well. Standard of books and registerswere in fair order except few mistakes pointed out by me. OICCrimes should concentrate more on investigation into propertycases and must have a better grip and control over them. OICRange Bandara is in charge of this station . . . He has a goodcontrol over the station and the area as well. He is spoken wellamong the public in the area and Citizen Rights Watch Committeesystem is very well organized here".
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And in his second report dated 18.12.95 – just three weeks beforethe impugned transfer – he said:
“Vehicles, buildings, and premises are being maintained well.Registers pertaining to crime matters are in order, except for thefew mistakes pointed out by me. I am glad to note that OiC hasmotivated the men to organize Civil Defence Force System andNeighbourhood Watch Committee system in the area. These twosystems are successfully activated in this area and the public arevery happy about the commitments of the Police in organizing theService Funerals in the area, OIC is working well. The other SI, andthe men are assisting the OIC to control the station as well as thearea effectively.”
The 2nd respondent neither explains why these reports make nomention of any complaints against the petitioner nor whether theywere taken into account in deciding to transfer the petitioner.
The 2nd respondent also annexed to his affidavit dated 12.3.96 acomputer printout of the petitioner's "Personnel Details”, showing allthe stations at which he had worked. It is quite clear that this was notout of date, because the last three entries were for 1996 – indeed,even extending to one day after the date of his affidavit:
WEERAMBUGEDERA 94.07,29 96.01.04 SI OIC
MORATUWA 96.01.05 96.03.12 SI SN
KURUNEGALA 96.03.13 SI SN
At the hearing, we observed that, tucked away among a host ofothers, were the following entries:
Transfer on dis. grud. [sic]?: N Reference:
Any inquiries pend. ?: N Reference:
Any Adverse Remarks. ?: N Reference:
Learned State Counsel stated that "dis. grud.” meant "disciplinarygrounds", and that “N" meant Nil or None. It would follow that therewould be an entry under "Reference" only if there was no negative
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answer. These entries cannot easily be reconciled with the 2ndrespondent's assertion that there were complaints or pendinginquiries against the petitioner.
In my view, the summary transfer of the petitioner to a distantplace was unreasonable, on the material available to the 2ndrespondent, and it was also a misuse of discretion to withhold fromhim the true reason for the transfer, because it deprived him of theopportunity to rebut it.
I hold that the 2nd respondent's decision to transfer the petitionerwas arbitrary, capricious, and unreasonable, and in violation ofthe petitioner's fundamental rights under Article 12(1). I quashthat transfer. Nothing in this order will preclude disciplinaryproceedings against the petitioner for any past misconduct,or his transfer, in accordance with the applicable rules andregulations.
The impugned transfer was effective from 6.1.96, and thepetitioner was re-assigned to Kurunegala only on 13.3.96. I awardhim a sum of Rs. 25,000 as compensation and Rs. 15,000 as costs.In making the impugned transfer order, the 2nd respondent wasacting as a public officer exercising powers delegated to him byPSC. Those powers are held in trust by him, and should have beenexercised, with due care, for the purpose for which they wereentrusted to him by the PSC; and with the same independence whichthe public have the right to expect, which Article 60 of theConstitution protects on pain of punishment:
“Any person who, otherwise than in the course of his duty, directlyor indirectly, by himself or by any other person, in any mannerwhatsoever, influences or attempts to influence any decision of thePublic Service Commission, or of any Committee thereof, or of anymember of such Commission, or of any public officer exercisingany powers delegated by such Commission or Committee, shallbe guilty of an offence… provided that nothing in this Article shallprohibit any person from giving a certificate or testimonial to anyapplicant or candidate for any public office.”
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The evidence in this case shows that what happened was not theresult of a mistake or an error of judgment, but of a misuse of thosepowers, of a kind which demoralises and demotivates the victim, andindirectly the entire service. The 2nd respondent does not claim thathe acted on material furnished by his subordinates; his affidavitsuggests that he gave his “conscious attention" to the relevant facts.I therefore direct that the compensation be paid by the State and thatcosts be paid by the 2nd respondent personally.
WIJETUNGA, J. -1 agree.
GUNAWARDENA, J. -1 agree.
Relief granted.