1965Present :H. N. G. Fernando, A.C.J.
S. GUNADASA SILVA, Petitioner, and A. P. JAYASURIYA
and another, Respondents
S. C. 191/65—Application for a Mandate in the nature of a Writ of Certiorariin terms of Section 42 of Courts Ordinance
Certiorari—Chairman of Urban Council—Order of Minister removing him from office—Administrative character of the Order—Urban Councils Ordinance, s. 184—Local Authorities (Elections) Ordinance (Cap. 262), s. 9 (-3) (c).
Where the Minister of Local Government, by virtue of the power vested inhim by section 184 of the Urban Councils Ordinance, makes an order removingfrom office the Chairman of an Urban Council, the order is essentially anadministrative order and is not any the Less valid even if it be correct that theresulting electoral disqualification imposed on the Chairman by section 9 (3) (c)of the Local Authorities (Elections) Ordinance can legally attach only to anorder made by the holder of a judicial office.
Application for a writ of certiorari to quash an Order made bythe Minister of Local Government.
H. W. Jayevxirdene, Q.G., with Lakshman Kadirgamar, for thePetitioner.
Nimal Senanayalee, for the 1st Respondent.
R.S. Wanasundere, Crown Counsel, for the 2nd Respondent.
Cur. adv. vult.
September 3, 1965. H. N. G. Fiuhando, A.C.J.,—
This is an application to quash an Order, made by the Minister ofLoccl Government and published in the Gazette of February 12th 1965,in purported pursuance of Section 184 of the Urban Councils Ordinance,removing from office the Chairman of an Urban Council.
One consequence of the Order is that, by reason of Section 9 (3) (e)of the Local Authorities (Elections) Ordinance (Cap. 262), the deposedChairman becomes disqualified for a period of five years from beingelected as, or voting at any election of, a Senator or Member of Parlia-ment or a member of any local authority. Counsel for the petitionerhas argued that, because such a disqualification follows upon the Orderfor removal from the office of Chairman, the Order itself is one madein the exercise of judicial power ; for that reason, he invited me to defera decision in this application until a bench of five Judges of the Courtrenders its decisions in a series of cases in which is involved the questionof the validity of orders mad? by certain tribunals not appointed bythe Judicial Service Commission.
Counsel had to concede that an Order under Section 184, aimyliciter,is a purely administrative one referable to the intention of the Legislaturethat the Minister is entrusted with the supervision of the administrationof local authorities and with the executive power to be exercised in thecourse of such supervision. This being in my opinion the dominantpurpose of Section 184, an order under that Section is essentially anadministrative order properly within the functions of the Minister.Even if it be correct that the disqualification created by Section 9 (3) (c)of the Local Authorities (Elections) Ordinance can legally attach onlyto an order made by the holder of a judicial office, the validity of theOrder for removal from the office of Chairman is not thereby impaired.In so far, therefore, as the Order has the effect of removal from office,I must hold that the Minister was duly empowered to make it. Thepetitioner can take such steps as he may be advised to do if it is thoughtthat the Minister’s Order cannot deprive him of electoral and votingrights.
To turn now to the facts of this case, petitions alleging maladministra-tion on the part of the present petitioner, as Chairman of the UrbanCouncil, were received by the Commissioner of Local Government.These were referred in April 1964 to the petitioner for his explanations,
which he duly furnished. The documents show that by an order madeon 26th April 1964, an Assistant Commissioner of Local Governmentwas directed to hold an inquiry into the allegations in the petitions.The Assistant Commissioner decided to commence his inquiry on 28thApril 1964. There is in the affidavits some conflict of testimony regardingthe day on which the petitioner was informed of the date of the inquiry.But even if it be correct that (as he avers) he was only thus informedon 27th April, the point is not in my opinion material, for the inquirycontinued on 29th April, 8th May, 13th May and 16th May; so that hehad ample opportunity to present his side of the case before the inquiryterminated, even if he was unprepared when the inquiry commencedon 28th April. I note in this connection that his report on the twopetitions had previously been furnished and that he was therefore. not previously unaware of the allegations which had been made against.him.
On 28th April 1964, the Assistant Commissioner held two ses ions.At the commencement of the morning session, he recorded the “charges”made in one of the petitions. At the commencement of the afternoonsessions he recorded the “ allegations ” made in the second petition. Oneach occasion there were present the Chairman and the signatories• to the petition under consideration. There is no a verment in the affidavitof the Assistant Commissioner that the petitioner was made aware ofthe precise “charges” and “allegations” which were recorded ; but it isreasonable to assume, in the absence of any contrary avermentat this stage, that the inquiring officer did announce, at least for thebenefit of the “accusers”, the accusations which were to be the subjectsVof his inquiry. I have no doubt that the present petitioner was thusmade aware of the precise grounds of maladministration to which theinquiry related.
Counsel relied strongly on an averment by the petitioner that theinquiring officer had stated that the inquiry was only a preliminaryone. The inquiring officer admits in his affidavit that he may have madesuch a statement. Counsel has therefore argued that, although thepetitioner did have an opportunity at the inquiry to defend himselfagainst the charges under investigation, it was not a fair opportunity,because the petitioner was led t expect that there would be a subsequentinvestigation. This point has certainly caused me some anxiety, whichhowever is very nearly dispelled by circumstances to which I am aboutto refer.
The record of the proceedings od 8th May 1964 commences wfith anote of a question put by the petitioner to the inquiring officer, in answerto which the latter stated that the purpose of the inquiry was to findout whether there was any truth in the allegation made against thepet tioner and whether there had been other instances of maladministra-tion. According to this note, the inquiring officer had on an earlieroccasion informed the petitioner to the same effect. I have no reasonto doubt the good faith of the inquiring officer, who conducted the investi-gations on the order of his superior, who maintained what appearsto be a careful record of the investigation, and who thereafter submitteda report running into fifteen closely typed pages. If, as I must hold,the petitioner was aware that the purpose of the inquiry was to ascertainthe truth of the allegations (indeed the inquiry was otherwise withoutpurpose), then be must reasonably have known that any explanationshe had to offer would be entertained and considered. The inquiringofficer’s report states that, in the case of all but two of the witnesses,the petitioner had the right to cross-examine, and the record shows thatat various stages the petitioner made statements, questioned witnesses,and referred to files. ’Counsel’s submission that the petitioner wasnot represented by lawyers at the inquiry is of little force in view ofthe fact that no application appears to have been made by the petitionerfor a lawyer to represent him. What natural justice required was thatthe petitioner should have had an opportunity to defend himself. Hiscase, at its highest, can only be that, because of some misunderstandingon his part, he did not take full advantage of the opportunity whichwas in fact afforded to him.
By the Minister’s letter of Cth December 1964 the petitioner wascalled upon to show cause why he should not be removed from office.The grounds for removal were set out in full detail. In regard to twoat least of these grounds, the omissions allegedly constituting malad-ministration were not denied by the petitioner in his reply to the Minister;but he explained that the Chairman should not be held responsible forthose omissions, which had arisen through the fault of the Council’sofficers. The Minister presumably did not agree with that explanation,and in my opinion the Minister was entitled so to disagree.
The petitioner’s reply to the Minister’s letter of 9th December containsexplanations regarding very many of the grounds for the removal speci-fied by the Minister. It would be unreasonable for us to suppose thatthese explanations were not considered by the Minister before he madethe Order of removal on 21st February 1965. Here again, therefore,the petitioner was given an opportunity to defend himself before theOrder of removal was made.
Finally, there was the submission that, in his reply to the Minister,the petitioner requested an opportunity to produce the Council’s filesin his defence, but was not allowed that opportunity. It feems to methat, in regard to at least some of the grounds for removal, productionof files would have been of no avail to the petitioner ; if, on grounds ofpolicy, the Minister was entitled (as I think he was) to hold the Chairmanguilty of maladministration because he had failed to maintain adequatesupervision over the performance of the duties of the Council’s officers,nothing in any Council file could serve to negative the charge of mal-administration. Moreover, if the production of the Council’s files couldhave assisted the petitioner, he had ample opportunity to produce themduring the investigation which was conducted on five dates of inquiry.
The application is dismissed, with costs fixed at Rs. 315/- payable tothe first respondent.
V. S. GUNADASA SILVA, Petitioner, and A. P. JAYASURIYA and another, Respondents