005-SLLR-SLLR-1997-V-1-TENNAKOON-ASSISTANT-SUPERINTENDENT-OF-POLICE-v.-T.-P.-F.-DE-SILVA-INSPEC.pdf
TENNAKOON,
ASSISTANT SUPERINTENDENT OF POLICE
v.
T.P. F. DE SILVA, INSPECTOR GENERAL OF POLICEAND OTHERS
SUPREME COURT.
FERNANDO, J.,
WUETUNGA, J. ANDANANDACOOMARASWAMY, J.
S.C. APPLICATION NO. 192/95AUGUST 22,1996.
Fundamental Rights – Article 12(1) 55 and 126 of the Constitution – Transfer ofPublic Officers – Norms mandated by the Fundamental Rights.
The petitioner is an Assistant Superintendent of Police. Having served at Kayts -an operational area for ten months, he was transferred to Kurunegala on1.10.94 and from there to Matale on 25.01.95 and was attached to the DambullaDivision. On 20.05.95 by a Police message, the 1st respondent. The InspectorGeneral of Police transferred him to Anuradhapura. without giving any reason.Nor was there any vacancy«at Anuradhapura for the petitioner's grade. Thepetitioner alleged that his transfer was instigated by the OIC/Galewela, a
Sub Inspector of Police against whom the petitioner had taken action for seriousacts of misconduct. The O.I.C. had connived with the 3rd respondent. Member ofParliament for Dambulla who had complained to the Senior Superintendent ofPolice Matale and the Deputy Inspector General of the range that the petitionerwas conducting his duties with a political bias due to his close family ties with theUnited National Party. However, the I.G.P. stated that he was not personally awareof those complaints but transferred the petitioner after discussions with the S.S.P.Matale as problems had arisen of a working relationship between the M.P. and thepetitioner. The I.G.P. added that the petitioner was not transferred on disciplinarygrounds but to prevent a situation prejudicial to the exercise of police functions.
Held: (Anandacoomaraswamy, J. Dissenting)
In terms of Article 55(5) of the Constitution, the powers of appointment,transfer, dismissal and disciplinary control vested in the executive are subjectto the fundamental rights jurisdiction of the Supreme Court.
Whilst the Court will not usurp the 1st respondent's discretion in regard totransfers, the Court cannot accept his subjective assertion as to the ‘lack of aworking relationship” or ‘in the interests of the service” – for that would be toabdicate the duty to examine whether the 1st respondents conduct fell shortof the norms mandated by the fundamental rights.
The 1st respondent did not act on the basis of facts; instead of forming anindependent opinion, he simply adopted the opinion, also unsupported byfacts, of his subordinates; hence the transfer was unreasonable and arbitraryand infringed the petitioners rights under Article 12(1).
Cases referred to:
Senanayake v. Mahindasoma, S.C. 41/96 S.C. Minutes 14th October, 1996.
Faizv. Attorney-General (1995) 1 Sri L.R. 372.
Wickramabandu v. Herath (1990) 2 Sri L.R. 348, 365,391.
R. v. Civil Sendee Appeal Board ex P. Cunningham (1991) 4 ALLER 310.
Jayatilaka v. Pathirana, S.C. 656/95 S.C. Minutes 25th October 1996.
APPLICATION for relief for infringement of fundamental rights.
Chula Bandara with D.K. Dhanapala for petitioner.
Nihal Jayasinghe, D.S.G. for 1st, 2nd and 4th respondents.
Mohan Peiris with Jayantha Fernando for 3rd respondent.
Cur. adv. vult.
October 30.1995.
FERNANDO, J.
The petitioner is an Assistant Superintendent of Police (ASP).Having served at Kayts, an operational area for ten months, he wastransferred to Kurunegala on 1.10.94, and from there to Matale on
where he was serving in the Dambulla Division under theSenior Superintendent of Police (SSP), Matale. By a police messagereceived on 20.5.95 at 15.35 he was told that the then Inspector-General of Police, the 1st respondent, had transferred him toAnuradhapura. No reason or explanation was given. That messagedirected the DIG, Anuradhapura, to give him a suitable assignment,and the DIG, Matale, to make acting arrangements at Dambulla untila suitable replacement was sent.
The petitioner immediately appealed to the 1st Respondent byletter dated 23.5.95 (PB), requesting that the transfer be varied:
“Prior to my departure to Kayts there had been transfer orders for05 A.S.P.’s and all of them got their transfer orders cancelledexcept myself. I was at Kayts for a period of 10 months …
When I was transferred to Dambulla I tried to get it cancelledowing (to) my personal difficulties. When I interviewed IG Police heinformed me that I was transferred to Dambulla on a request ofMr. Monti Gopallawa.
took over Dambulla District II there were several complaints ofassaults against OIC/Galewela, SI Saman Sigera. I made inquiriesinto the allegations and proposed SSP/Matale to transferOIC/Galewela.
There was an arrangement G.S.S. of Area to go on a protestmarch against OIC/Galewela as he too had assaultedG.S./Galewela. On receipt of the information I met AGA/Galewelaand settled the issue…
Having received no response, the petitioner went to Anuradhapuraon 4.6.95, and was told by the SSP, Anuradhapura, that he was notexpecting the petitioner as the 1st respondent had previouslytransferred two officers to fill the two vacancies in his division, andthat although there were no vacancies for the petitioner's grade hewould be accommodated as an additional ASP in the KebithigollewaDivision – which is also considered an operational area.
In his petition dated 19.6.95 the petitioner claims that the transferwas in violation of his fundamental right under Article 12(1). Leave toproceed was granted on 22.6.95 but no interim order was made.While this application was pending, he was again transferred on
to Colombo, and thereafter on 15.7.96 to Tangalle – but the 1strespondent agreed to stay that transfer.
It is not in dispute that the 1st respondent had, by virtue ofdelegation, the power to transfer the petitioner. The only question iswhether the way in which he exercised his undoubted discretioninfringed Article 12(1).
SUBMISSIONSThe petitioner's position is that at Dambulla he had beenperforming and discharging his functions and duties, as a policeofficer, efficiently and correctly; that for this he incurred thedispleasure of the 3rd respondent, a Member of Parliament, whotherefore got him transferred; that was the only reason why the 1strespondent transferred him; and that was arbitrary and unreasonable.In his petition the petitioner had disclosed the fact that his wife'sfather and two brothers had been, and were, engaged in politicalactivity in the North-Western Province, on behalf of the UnitedNational Party (UNP).
The 3rd respondent's contention is that the petitioner was notperforming his duties without bias, but was indulging in politicalactivity due to his close family ties with the UNP; that as a result hecould not get the co-operation of any subordinate officer in hisdivision; that the 3rd respondent's complaints to the petitioner's
immediate superiors the DIG, Matale (the 2nd respondent), and theSSP, Matale, – had no effect; that as a Member of Parliament he hadthe responsibility to ensure that State officials conduct themselves ina fit and proper manner and to bring to the notice of theadministration any misconduct by them; and that accordingly hemade a request to the 1st and 2nd respondents to transfer thepetitioner in order to prevent a confrontation between the petitionerand those members of the public who were supportive of theGovernment. Mr. Mohan Peiris urged on his behalf that in any eventhe could not be held responsible for any infringement by the 1strespondent as he had only exercised his right to makerepresentations to the 1st and 2nd respondents, and had notdirected either of them to transfer the petitioner.
The learned DSG pointed out that the 1st respondent had deniedthat he acted upon the 3rd respondent's request. The 1st respondenthad said nothing in his affidavit about the petitioner’s wife's UNPconnections. He submitted if such serious allegations had beenbrought to the 1st respondent’s notice, the 1st respondent wouldcertainly have inquired into the matter. The transfer was not fordisciplinary reasons. It was only because there was no satisfactoryworking relationship between the 3rd respondent and the petitioner,and that made it undesirable to keep him because that conflict mighthave developed into a situation prejudicial to the exercise of policefunctions in that area. When it was pointed out that the 1strespondent had failed to say how, and on what material, he hadconcluded that there was such a lack of harmony, or who wasresponsible for it, the learned DSG maintained that it wasunnecessary for the 1st respondent to furnish any such material.
FACTSIn support of his contention, the petitioner annexed copies of hisletter dated 23.5.95 (P8), and of another, more detailed, letter dated
(P7) which he wrote to the 1st respondent (with copies to thePresident, the Prime Minister, and the Deputy Minister of Defence) inwhich he said:
"… I had the unpleasant task of inquiring into the (atrocities) ofthis OIC of Galewela …
An assault on RPC Rohana by SI Sigera OIC Galewela on14.12.94 which I inquired and submitted my report accordinglyby outward No. D. S. 724/94 refers.
A complaint of bribery amounting to Rs. 44,000/- made by one
S.M.I.A. Fareed against OIC Galewela and two others ofGalewela Police Station. A report was submitted by my outwardNo. 223/95 to be referred to the Bribery Commissioner.
A complaint of unlawful arrest, assault and party rape on
Mrs. D. Hewavitharana 18.4.95 which was inquired into by mepersonally and all evidence recorded, which was incriminativeagainst SI Sigera OIC Galewela. The victim was examined byDMO Matale. I had fixed an identification parade against SISigera and the P.CC concerned for (18.5.95?). My interim reportwas submitted by outward No. D.S. 254/95 as I was on orders ofimmediate transfer.
An assault on Stanley Wijeratne, the Grama Seva Niladhari ofGalewela by SI Sigera OIC Galewela on 14.05.95 in broaddaylight in the Galewela town which resulted in the fracture of thewrist of the Grama Seva Niladhari which resulted in hishospitalisation.
These allegations against SI Sigera, OIC Galewela were forcorrupt practices, discreditable conduct which would bringdisrepute to the good name of the police service. Most of thecomplaints were offences which fall within the Penal Code wherethe SI has to be charged in courts and under the Bribery Act.Hence I suggested that he be transferred out immediately as hecould interfere with the witnesses or tamper with evidence.
The inquiries into the allegations against this SI are incompleteand the SI is sensing that it would end up in his interdiction, hadswiftly in connivance with the Hon. MP for Dambulla by giving awrong impression that I am involved in anti-Governmentactivities. A copy of the telegram sent by Hon. MP to IG Police isattached herewith as proof. The irony of the whole issue was theimmediate unjustifiable transfer meted out to me out of Dambullainstead of initiating disciplinary action against SI Sigera, OICGalewela.
However I earnestly request that if there is any such allegationagainst me to have this inquired into by the NIB or the SIU infairness to justice I implore your goodself to have the inquiriesmentioned by me against SI Sigera, OIC, Galewela concluded bya Senior officer and bring him to book.
In the meanwhile the SI should be transferred out of Galewelaand placed on interdiction as it is undesirable for him to continueto function in office.
My final appeal to your goodself is to transfer me to a Districtclose to Kurunegala Division … as my wife is a Principal of aSchool in Hettipola and my daughter is being educated inKurunegala."
In paragraphs 12 and 13 of his affidavit he referred to thosematters again, stating that he had submitted reports in respect of allfour investigations: three to the SSP, Matale, and the fourth to theBribery Commissioner. In paragraphs 10 and 18 he referred to hisletters P7 and P8, and said:
"10. I state that if there are allegations of this nature against me, it isthe duty of the 1st and 2nd respondents to inquire into theallegations and ascertain whether there was any truth in it and,if so, take disciplinary action against me. Without holding aninquiry, to transfer me on the request of the 3rd respondent, iscontrary to the principles of natural justice …
18. I state that my appeals to the first respondent made on
and 14.6.1995 requesting him to reconsider his
decision and to cancel the transfer has not received anyresponse from the 1st respondent…"
The Petitioner also annexed to his petition copies of threetelegrams handed in by the 3rd respondent at Dambulla at 12.40 on
The first was to the Deputy Minister of Defence. Havingreferred to previous requests made to him for the immediate transferof the petitioner because the petitioner was criticising theGovernment and having disputes with officers loyal to theGovernment, the 3rd respondent asked that ASP Sumanabandara beappointed as ASP Dambulla, and the 3rd respondent transferred out.The other two telegrams were to the 1st respondent and the DIG,Matale, alleging that the 3rd respondent was discharging his dutiesin a way which caused disputes with the Galewela Police andrequesting his immediate transfer. None of the telegrams give anyparticulars in support of the allegations they contain.
i must observe that, as to the ground for the requested transfer, thefirst telegram significantly differs from the other two: it allegesmisconduct with a political favour while the other two mentionproblems with subordinates and that tends to confirm the petitioner’sclaim that he was conducting inquiries against his subordinates atGalewela.
In the 1st respondent’s affidavit, filed on 17.10.95 (after obtainingthree extensions, which would have given him quite enough time toobtain all necessary clarifications and information) there is a generaldenial of all the averments in the'petitioner’s affidavit, except thosewhich are specifically admitted. This is what he then said:
the 3rd respondent and the petitioner, I state that I thereforeconsidered the exigencies of this emerging situation and feltthat if any officer is unable to work in harmony with theelected members of Parliament it would not be desirable forsuch officer to be retained in that Division. I felt that this conflictmight develop into a situation that might be prejudicial anddetrimental to the exercise of police functions in the area and inan effort to resolve this situation, l transferred the petitioner inthe first instance to Anuradhapura Division. I state that I was notinfluenced by malice or other considerations nor to mete outany unequal treatment to the petitioner since often policeofficers have been transferred out of a particular area wherethey are unable to work in harmony with the elected members ofParliament. Such transfers are being effected in the interest ofthe police officers themselves and of the Department in general.
Answering paragraph 10, I state that the transfer order wasmade for the reasons set out at para 6 above, and not ongrounds of proven misconduct.
Answering paragraphs 12 and 13, I state that the investigationinto complaints set out therein has nothing to do with thepetitioner's transfer. No reports in respect of these inquiries wereforwarded to me by SSP, Matale." (emphasis added)
In paragraph 9 he stated that the petitioner was not transferred atthe request of the 3rd respondent, and that the petitioner, being in atransferable service, has no fundamental right to be at a station of hischoice. While wholeheartedly agreeing that he had no suchfundamental right, it is sufficient to recall that Article 55 (5) of theConstitution makes it plain beyond any manner of doubt that thepowers of appointment, transfer, dismissal and disciplinary controlvested in the Executive, even when delegated, are subject to thefundamental rights jurisdiction of this Court. Thus the 1strespondent’s power to transfer the petitioner is subject, inter alia, toArticle 12, and this Court has not merely the power but the duty toexamine whether the 1 st respondent exercised his discretion inconformity with Article 12(1).
I must now refer to the circumstances in which the 3rd respondentfiled his affidavit. The petitioner had made him a party alleging thathe had influenced and incited the 1st and 2nd respondents totransfer the petitioner “in an informal manner". He prayed for adeclaration that his fundamental right had been infringed “by therespondents", and in the context of his pleadings that included the3rd respondent. On the first date of hearing the 3rd respondent wasabsent and unrepresented; the others were represented and askedfor further time to file objections. The Court granted the respondentsthree weeks time for objections and fixed the hearing for 16.11.95.Although not required to do so, the Court directed that the 3rdrespondent be given notice of the date of hearing. However, heneither filed objections nor appeared on that day. On 16.11.95 thehearing was postponed for 2.2.96.
On 2.2.96 Mr. Mohan Peiris informed the Court that the 3rdrespondent had filed objections, and moved that they be accepted.Counsel for the petitioner said that he had received a copy, butobjected to their acceptance. It was found, however, that theobjections were not in the record. Nevertheless, at the hearingMr. Peiris was permitted to rely on those objections.
The motion dated 30.1.96 of the 3rd respondents Attorney-at-Lawstated:
“The 3rd respondent… has been cited without any relief claimedagainst him. In the circumstances the 3rd respondent did not thinkit necessary to file a response. However, when the 3rd respondentthrough an abundance of caution referred this matter to Counsel,[he] was advised that it would be appropriate and prudent to file aresponse, notwithstanding that no relief has been claimed againsthim.”
In his affidavit, after a general denial, the 3rd respondent stated:
"3. I state that I admit having sent documents marked P4, P5 and P6.I further state that prior to making the request for the transfer ofthe petitioner, I have on several occasions complained to theSenior Superintendent of Police, Matale and Deputy InspectorGeneral of Police of the range, that the petitioner was notconducting his duties without bias and was indulging in politicalactivity due to his close family ties with the United National Partyand that as a result of which neither can enlist the (cooperation)of any subordinate officer in his division.
I state that I. on several occasions told the petitioner that I will notinterfere with his police duties but that he should not let hispolitical views pervade the decisions taken by him in themaintenance of law and order. Notwithstanding personalrequests by me, I had a number of complaints which I personallyinquired into and found that the petitioner was motivated bypolitical reasons in a number of investigations under hissupervision.
I state that since my personal requests and the requests madeby the petitioner's immediate superiors had no effect on thepetitioner, I informed the 1st and 2nd respondents of this situationand finally requested that the transfer of the petitioner out ofMatale District be considered as a matter of urgency, as such amove would be in everybody's interest.
officials conduct themselves in a fit and proper manner and tobring to the notice of the administration any misconduct by thesaid officials. I therefore state that the complaints made by me ofthe petitioner, was to bring his conduct to the notice of hissuperiors, as I wanted to prevent a situation where there wouldhave been a confrontation between the petitioner and thosemembers of the public who are supportive of the Government…"
FINDINGSThe 3rd respondent did not deny that the petitioner had beeninvestigating four serious complaints against the QIC and otherofficers of the Galewela Police. Although he said he had repeatedlycomplained to the petitioner's superiors, he did not say when hecomplained, and did not produce copies of his complaints; nor didthe other respondents produce any note or record of any suchcomplaints. Assuming that he did make complaints, it is thereforedifficult to conclude that they were official complaints, or wereregarded as such. Further, the substance of his complaints was thatthe petitioner was guilty of misconduct, in that he was indulging inpolitical activity and let his political views pervade the decisionstaken by him in the performance of his duties; and although the 3rdrepondent claimed that he had inquired into a number of suchcomplaints, and found them to be justified, yet he gave no particularswhatsoever. In the absence of any supporting material, it is notpossible for this Court to conclude that those serious allegations weretrue, or even that there was ground for them. The learned DSGsubmitted that such serious allegations would have been inquiredinto if they had been brought to the notice of the IGP. If any suchcomplaints had been made to the DIG, Matale, or the SSP, Matalethey should have acted in the same way.
But even assuming the truth of the 3rd respondent’s version that hedid bring these serious allegations of misconduct to the notice of the2nd respondent and/or the SSP, Matale, yet the averments in the 1strespondent's affidavit, and the submissions made on his behalf, areto the effect that no such allegations of misconduct were brought tohis notice by the 2nd respondent or the SSP, Matale. It seemstherefore, that whatever the 3rd respondent might have told those twoofficers, neither of them took action on his complaints or conveyedthem to the 1st respondent. All that the SSP, Matale, appears to havedone was to tell the 1st respondent that ‘problems had arisen of aworking relationship between the 3rd respondent and the petitioner".
Hence the allegations set out in the 3rd respondent’s affidavitcannot be retied on to explain or justify the 1st respondent’s conduct.The petitioner's affidavit, and the documents annexed, raised manyquestions. Apart from the frequency of his transfers, resulting in twoperiods of service in operational areas, and his transfer to a placewhere he was, seemingly, not needed, without a replacement at hisformer station, the petitioner made out a strong case that he hadinvestigated four serious offences: assaults on a RPC and anotherpublic officer, bribery, and rape. Further, the complaints were all themore serious because they were against police officers charged withthe duty of upholding law and order. The DIG, Matale, who was the2nd respondent, filed no affidavit, either to deny or to explain. The 1strespondent did not tender an affidavit, or even a report, from the SSP,Matale. The fact that the petitioner's immediate superiors did notventure to deny what he said gives rise to the legitimate inferencethat what he said was supported by the records available to them.Had there really been four such serious complaints, the most recenton 14.5.95, and a threatened protest march? Had the petitioneractually submitted four reports? Had the 1st respondent received theletters P7 and P8, and if so why did he not reply? what had happenedto these investigations – had they been stifled, or duly pursued andfound not to warrant further action? The 1st respondent had certainlya case to meet.
There is, of course, his general denial. That might have been quitesufficient to rebut averments, which were vague or general or lackingin particularity, or which dealt with incidental matters. But here thePetitioner's averments were specific, detailed, grave, and directlyrelevant to the facts in issue; further, the suspects were policeofficers, and the alleged victims included not only "ordinary"members of the public but a RPC and a public officer; and theincidents were intrinsically relevant to harmony between the police,and the public and public officers; the Petitioner claimed supportfrom his official reports, three of which, it must be stressed, weremade before the impugned transfer order; the 3rd respondent didnot deny that the petitioner had conducted those investigations; andfinally, not only did his superiors not deny his version, either to the1st respondent or to this Court, but they appear to have refrainedfrom conveying to the 1st respondent the counter-allegations madeagainst him. While the 1st respondent chose to explain, to someextent, the three telegrams (of which only one was sent to him), insharp contrast he said nothing direct about the letters P7 and P8. Asfor the reports, he may well have told the truth when he said that noreports were forwarded to him by SSP, Matale, but he did not go onto say either that SSP, Matale, had not told him orally about themduring their discussions, or that there were no such reports.Considering that he took more than three months time to prepare hisaffidavit, it is difficult to accept that he made no attempt to check onthe existence of those reports from the official files in Matale andDambulia, and on the status of the investigations. In the absence of aclear statement by the 1st respondent, supported^ relevantdocuments, the available evidence confirms the truth of thepetitioner's version as to the complaints, investigations and reports.
reached his office only after? Or that if never reached his office?Although his affidavit is inexcusably vague, I will neverthelessassume in his favour that he became aware of the telegrams onlyafter he had ordered the transfer; and knew only later that the 3rdrespondent had complained about the petitioner, so that, as he saysin his affidavit, the transfer was not at the request of the 3rdrespondent.
As already noted the 1st respondent does not say that he took intoconsideration that the petitioner's in-laws were involved in UNPpolitics. Indeed, he asserts that there was no other considerationwhich influenced him, except that mentioned in paragraph 6.
Thus according to the 1st respondent, the only reason why heordered the transfer of the petitioner was because “problems hadarisen of a working relationship between the 3rd respondent and thepetitioner"; it was not that problems "might" arise, but that they hadarisen. But what those problems were, he did not say; nor did he saythat the SSP, Matale, told him. Hence the only material before thisCourt is that the SSP, Matale, made the 1st respondent aware thatcertain unspecified problems had arisen which created anunsatisfactory working relationship between the 3rd respondent andthe petitioner. This was a conclusion reached by the SSP, Matale, andnot by the 1st respondent independently. We have not been toldwhether the SSP, Matale, had become aware of those “problems”through his own personal knowledge, or through official records orreports, or on hearsay; and while it is known that the 3rd respondenthad complained to him, the evidence does not suggest that thesewere anything more than allegations of a general nature. In theabsence of an affidavit, or even an official report, from the SSP,Matale, it is not possible for this Court to determine whether he isworthy of credit, and, if so, whether there was a reasonable basis forthe conclusion which he conveyed to the 1st respondent. To sum up,then, the 1st respondent’s position is that he was not aware, from anysource whatsoever, of the facts which gave rise to the unsatisfactoryworking relationship between the 3rd respondent and the petitioner.
Thus the issue for decision becomes narrowed down to this; is thisCourt bound, or even entitled, to accept the 1st respondent’ssubjective assertion as to the lack of a satisfactory workingrelationship – especially where that is only the unverified andunsupported conclusion of his subordinate? In my opinion, howeverwide the 1st respondent’s discretion, he cannot simply say that heordered a transfer “because of the exigencies of service", or “fordisciplinary reasons", or “in the interests of the service", or “becauseof the lack of a harmonious working relationship”, and expect thisCourt blindly to accept that assertion. While it is true that Article 126does not authorise this Court to usurp the 1st respondent's discretionin regard to transfers, yet it does not allow this Court to accept amere assertion of that sort – for that would be to abdicate its duty toexamine whether the 1st respondent's conduct fell short of the normsmandated by the fundamental rights, and thus indirectly to invent anew official immunity Senanayake v. MahindasomaLet me addthat, of course, different considerations would apply where nationalsecurity is involved.
It is necessary to scrutinize more closely that particular ground forthe exercise of a constitutional power or discretion to transfer: thelack of a satisfactory working relationship between a police (orindeed any public) officer, and an elected Member of Parliament.Many disturbing questions arise. Should the IGP act where this is inrelation to any elected MP, whether from the party in power or in theopposition? How should he act if there is a good relationship with onegroup and an unsatisfactory one with an opposing group? Or a goodworking relationship with an elected MP and the converse with aProvincial Councillor in the same area? Would not any such principlebecome necessarily applicable to relations with other persons andgroups – police officers vis-a-vis other public officers, or judicialofficers, or ethnic or religious groups?
If a police officer may, with impunity, be transferred on that ground(without any need to consider the reasons for it) what signals wouldthat give, firstly, to the transferred officer as to how he should performhis duties in his new station, and secondly, to his replacement? To actaccording to law in the public interest, or to avoid an unsatisfactoryworking relationship at all costs? As, for instance, by giving in to anunlawful request either to stifle an investigation into or a prosecutionfor an offence, or to pursue a frivolous and vexatious charge? Thepower to transfer exists in order to ensure an efficient service to thepublic, but without imposing an unfair burden on individual publicofficers. Transfer on the ground of unsatisfactory working relationshipwill not only be unfair to the individual but will promote inefficiencyand injustice.
These are not fanciful considerations as Faiz v. Attorney-General™.If there been no fundamental rights application, the IGP would havebeen faced with a situation in which there was “harmony" betweenpolice officers and two Members of Parliament as well as a ProvincialCouncillor, and “disharmony" between an efficient wild life ranger andboth police and politicians. Should the IGP have refrained fromtransferring (let alone disciplining) the police officers, and should thePublic Service Commission, instead, have transferred the wild liferanger – on the principle that there was no satisfactory workingrelationship between him and the police (and/or the politicians) whichwas so necessary for his duties? Had the Public Service Commissiontransferred the wild life ranger, would his successor have beeninclined to perform his duties efficiently, honestly and impartially? Amere lack of a satisfactory working relationship is therefore nojustification for transfer, although the reason for such disharmonymight be. The law reports do not suggest that the situation in Faiz v.Attorney-General {Supra) was unique; or was the first of its kind; orthe last.
In another context, in Wickramabandu v. Herath(3>, a Bench of fiveJudges referred to the need to scrutinize the reasons for a detentionorder issued by the Secretary, Defence and held a detention to beunlawful.
As to the failure to give reasons for administrative decisions,Wade’s observations – in the context of judicial review – apply witheven greater force in our fundamental rights jurisdiction, especiallythe equal protection of the law:
“… . there is a strong case to be made for the giving of reasonsas an essential element of administrative justice …. Unless thecitizen can discover the reason behind the decision, he may beunable to tell whether it is renewable or not, and so he may bedeprived of the protection of the law. A right to reasons istherefore an indispensable part of a sound system of judicialreview. Natural justice may provide the best rubric for it, since the
giving of reasons is required by the ordinary man's sense ofjustice. It is also a healthy discipline for all who exercise powerover others …. Although there is no general rule of law requiringthe giving of reasons, an administrative authority may be unable toshow that it has acted lawfully unless it explains itself."(Administrative Law, 7th ed, pp 542-543)
Among the cases he cites is R. v. Civil Service Appeal Board, ex p.Cunningham(4 which was an application for judicial review of adecision assessing compensation for the unfair dismissal of a prisonofficer. It was held that:
*. . . . the board should have given outline reasons sufficient toshow that they were directing their mind and thereby indirectlyshowing not whether their decision was right or wrong, which is amatter solely for them, but whether their decision was lawful. Anyother conclusion would reduce the board to the status of a free-wheeling palm tree…. The board's objection to giving reasons …is that this would tend to militate against informality and would leadto an undesirable reliance upon a body of precedent. I find thistotally unconvincing. The evidence shows that those who adviseapplicants and departments do so frequently and must be wellaware of the board’s previous decisions and of the circumstancesin which they were made. There must therefore already be a bodyof precedent. If the board have no regard to their previousdecisions, they must be acting inconsistently and be failing to dojustice as between applicants. This I am loathe to believe ….fairness requires a tribunal such as the board to give sufficientreasons for its decision to enable the parties to know the issues towhich it addressed its mind and that it acted lawfully."(pp 319-320)
there is an unsatisfactory working relationship between them. Aworking relationship is that which exists between superior andsubordinate, or colleague and colleague, in one workplace; or evenbetween two persons in different departments, institutions orservices, when the public interest requires that they work together.Nothing has been said in the pleadings or in the submissions tosatisfy this Court that any working relationship was required betweenthe 3rd respondent and the petitioner. The only material placedbefore the Court – apart from vague allegations – is that the petitionerwas investigating certain offences. If at all he was required to have aworking relationship with any one inregard to those investigations,Chapter XI of the Code of Criminal Procedure Act suggests that itwas with the Magistrate’s Court. The 3rd respondent had, indeed, theright to complain about the petitioner to his superior, but that hasnothing to do with working relationships.
Let me assume, however, that such a working relationship wasrequired, in the public interest. A bare assertion that it wasunsatisfactory is not enough. The Court must ascertain whether therewere grounds for that opinion, and, if there were, rt must examinethose grounds; upon such an examination the Court is not entitled tosubstitute its own opinion, simply because it disagrees with the 1strespondent; and it can only* intervene if that opinion is found to bearbitrary, capricious, unreasonable, or discriminatory (or otherwiseviolative of fundamental rights).
Where there are grounds for holding that there is such abreakdown, in general a transfer of an officer would be neither lawfulnor proper, unless he was culpably responsible for the breakdown. Itis only exceptionally that the exigencies of service might justify anofficer who was in no way to blame, and who was merely performinghis duties. There may be bona fide disagreements between twoofficers, which disrupt the work of a workplace and which make itdesirable, in the interest of the public and the service, that one betransferred. The officer concerned would, no doubt, be given anappropriate explanation. The case of Jayatilaka v. Pathiranaw. is anillustration of a situation in which an officer not to blame was validlytransferred, the other person involved not being within thedisciplinary control of the appointing authority.
The contrary view would undermine the independence andintegrity of the public service. It would encourage disharmonyresulting from acts of interference by outsiders with the dueperformance of official duties (whether by public officers, judicialofficers or others) to be regarded as an unsatisfactory workingrelationship, and entitle, or perhaps compel, the Public ServiceCommission, the Judicial Service Commission or other disciplinaryauthority, to transfer duty-conscious officers. It seems to me that thepolicy of the law is to discourage such acts; and. indeed, they seemto be contrary to sections 180, 183 and 186 of the Penal Code. Thefirst illustration to section 180 suggests that such representationsshould be scrutinized:
“A informs the Inspector-General of Police that Z, a police officer,has been guilty of neglect of duty or misconduct, knowing suchinformation to be false, and knowing it to be likely that theinformation will cause the Inspector-General to dismiss Z. A hascommitted the offence defined in this section."
Article 55 of the Constitution does not permit "exigencies of service","lack of a satisfactory working relationship”, and the like, to be usedas gambits to move public officers around, as if they were just pawnson a chessboard.
amount to “executive or administrative” action and he only maderepresentations about the petitioner's conduct. I entirely agree thatany person, whether he is a private citizen or holds public office, isentitled to bring the alleged misconduct of a public officer to thenotice of the disciplinary authority. One of the protections which thelaw affords to a public officer is that if such representations are false,and were made with the knowledge and intention specified in section180 of the Penal Code, the penalties provided in that section willapply; as a corollary, it follows that such representations must bemade officially, and not privately or secretly, and that they must be inwriting or duly recorded.
If those safeguards are not observed, the power to scrutinize atransfer order, whether on appeal to the Public Service Commissionor under Article 126, will become nugatory.
In Faiz v Attorney-General (Supra) this court held that:
“. . . when an infringement by an executive officer, by executive oradministrative action, is directly and effectively the consequenceof the act of a private individual (whether by reason of instigation,connivance, participation or otherwise) such individual is alsoresponsible for the executive or administrative action and theinfringement caused thereby." (p. 383)
The 3rd respondent did make representations, to the DeputyMinister, the IGP, the DIG, Matale, and the SSP, Matale, and he did soin order to get the petitioner transferred. But on the one hand, the 1strespondent’s position is that he ordered the transfer simply becausethere was a lack of harmony (and that there was a lack of harmony isnot in dispute); and the evidence is that the reason for that lack ofharmony was neither brought to his notice, nor concerned him in theleast. On the other hand, there is no proof that, at the material time,there had been brought to the 1st respondent’s attention, either the3rd respondent’s telegrams or any of the other complaints which the3rd respondent had made to the Deputy Minister, the DIG, Matale,and/or the SSP, Matale. Thus it has not been proved that theinfringement was effectively caused by the 3rd respondent'srepresentations.
ORDERI hold that the petitioner's fundamental right under Article 12(1)had been infringed by the 1st respondent.
Counsel for the petitioner stated at the hearing that he waspursuing this application primarily to vindicate the principle involved,and that he was no longer insisting upon reinstatement at Dambulla.
Accordingly I refrain from quashing the impugned transfer order,and direct the State to pay the petitioner a sum of Rs. 40,000/- ascompensation and costs.
WIJETUNGA, J. -1 agree.
Application allowed.
ANANDACOOMARASWAMY, J. (Dissenting)I have read the Judgment of my Brother Hon'ble Fernando. J withwhom my Brother Honourable Wijetunge, J agreed. I regret I amunable to agree with them and I give below my reasons.
This is an Application for a declaration that the petitioner'sFundamental Right guaranteed by Article 12(1) of the Constitutionhas been infringed by the respondents; to suspend the transfer of thepetitioner until the final determination of this Application and forcompensation in a sum of Rs. 250,000/-.
The facts relevant to this application are briefly as follows:-
The petitioner is a citizen of Sri Lanka and has been an Officer ofthe Police Department for the last 18 Years. He joined the PoliceDepartment on 15.10.1976 as a Sub-Inspector of Police and hasserved the Department of Police as an Inspector and also as a ChiefInspector, before he was promoted to the rank of AssistantSuperintendent of Police with effect from 05.11.1993 along withanother 116 Police Officers, and was posted to Kayts Police Division.
The petitioner, after serving his Six Months period in a terroristarea, was transferred back to Kurunegala Police Division with effectfrom 01.10.1994 and, thereafter, to Matale Police Division with effectfrom 25.01.1995 as an Assistant Superintendent of Police, DambullaDivision II by the 1st respondent.
The petitioner was again transferred from Dambulla toAnuradhapura Police Division with immediate effect by the 2ndrespondent, Deputy Inspector-General of Police, Matale on theinstructions of the 1st respondent, without replacement.
As there was no response for his appeal against transfer hereported for work at the Office of the Deputy Inspector-General ofPolice of Anuradhapura on 04.06.1995.
When the petitioner met the Senior Superintendent of Police, hewas informed that the S. S. P., did not expect the petitioner to comeinto Anuradhapura Division as the 1st respondent had transferred twoOfficers earlier to fill in two vacancies in his Division. The S. S. P, alsoinformed that though there were no vacancies for the petitioner'sgrade, he would be accommodated as an Additional AssistantSuperintendent of Police and was assigned to work as an AdditionalA. S. P, in the Kebitigollewa District.
The petitioner alleges that the transfer order is arbitrary and madenot on grounds of'exigencies of services or on disciplinary groundsor on his request, but at the instigation of the 3rd respondent who is aMember of Parliament for Matale District, for the reasons that thepetitioner was critical of the Government and had manyconfrontations with Officers who are loyal to the Government and withOfficers of the Galewala Police. No inquiry was held into theallegations levelled against the petitioner although he requested the1st respondent to hold an inquiry into the allegations levelled againsthim. He complained that the transfer order without an inquiry iscontrary to the principles of natural justice, He also averred that oneSaman Sigera a young Sub-Inspector of Police had been broughtfrom the Southern Division on a Special request of the 3rdrespondent and made Officer in Charge of the Galewala PoliceStation, contrary to the norms of the Police Department to appoint aSenior Inspector of Police in charge of a Grade A2 Police Station.This Galewala Police Station comes under the supervision of theAssistant Superintendent of Police, Dambulla II, and therefore he had
to investigate into several complaints made by several personsagainst his subordinate Officer the above mentioned Saman Sigerathe Officer in charge of Galewala Police. He had inquired into thesecomplaints and submitted an Interim report to the SeniorSuperintendent of Police Matale and had recommended that theOfficer in Charge of Galewala Police be transferred out of Galewalawith immediate effect, but the petitioner was transferred out ofDambulla Division to Anuradhapura Division, which transferaccording to the petitioner was to stop the investigations against theOfficer in Charge of Galewala Police. It is the case for the petitionerthat the 3rd respondent had been influenced by the Officer in Chargeof Galewala Police to request the 1st and 2nd respondents and theHonourable Deputy Minister of Defence to transfer the petitioner outof Matale Division on arbitrary and discriminatory grounds. The 3rdrespondent without hesitation accepted Sub-Inspector of PoliceSaman Sigera’s version as the petitioner’s wife hails from a family inwhich three members are closely involved in the United NationalParty. The petitioner’s Father-in-Law was a Member of Parliament forPanduwas Nuwara Electorate from 1977 to 1988 and is the presentChairman of the Panduwas Nuwara Pradeshiya Sabah. One brother-in-law is the present Chief Minister of the North Western Province andthe other is the present United National Party Organiser forPanduwas Nuwara and a former Member of Parliament forKurunegala District from 1991 to 1994.
The case for the respondents is that the 3rd respondentcomplained that the petitioner was unable to enlist the co-operationof subordinate officers in his Division and sought his transfer. Therespondents submit that problems had arisen of a workingrelationship between the 3rd respondent and the petitioner. The 1strespondent therefore considered the exigencies of this emergingsituation and felt that if an officer was unable to work in harmony withthe elected Members of Parliament it would not be desirable for suchofficer to be retained in that Division. It was felt that this conflict mightdevelop into a situation that might be prejudicial and detrimental tothe exercise of Police function in the area and in an effort to resolvethis situation the petitioner was transferred in the first instance toAnuradhapura Division. The respondents were not influenced bymalice or other consideration nor it was the intention to meet out any
unequal treatment to the petitioner. Often Police Officers have beentransferred out of a particular area where they were unable to work inharmony with the elected Members of Parliament. Such transferswere effected in the interest of the Police Officers themselves and ofthe Department in general. It is the submissions of the respondentsthat the petitioner is in a transferable service and that he has noFundamental Right to be at a station of his choice. The respondentalso states that the transfer was not on grounds of provenmisconduct nor the transfer to Anuradhapura District was intended topost the petitioner to a designated operational area within theAnuradhapura District. The respondents submit that they have actedin good faith and according to Law and deny that the petitioner’sFundamental Rights had been violated by them.
The 1st respondent frankly admitted that there was a complaint bythe 3rd respondent, but he took an independent decision to transferthe petitioner in his own interest and in the interest of the Departmentand that he was not transferred because of the request of the 3rdrespondent. The 1st respondent took the responsibility for his actionto transfer the petitioner. As the 1st respondent has taken theresponsibility for his action there is no need for a separate objectionby way of affidavit from the other respondents.
The petitioner is in a transferable service and he has noFundamental Right to be at a station of his choice. The transfer waseffected on the ground of exigencies of service and not ondisciplinary grounds or at the petitioner’s request. Exigency hasarisen at the petitioner’s Station in Dambulla Division and thereforethe petitioner was transferred out. It is irrelevant to say that there wasno exigency at Anuradhapura for a transfer to Anuradhapura.
A transfer order to an Officer in a transferable service cannot giverise to an infringement of Fundamental Right except when the ordercomes frequently, maliciously or unreasonably, with a view to harassan Officer. In the instant case the Inspector-General of Police, the 1strespondent to whom the power to transfer his Officers is delegatedhas given reason for the transfer, although the reason may not bepalatable to all. Instances are not uncommon both in Public Serviceand even in Judicial Service that Officers are transferred out of astation when there is “Friction" in the area where they serve,irrespective of the truth or falsity of the allegations against theOfficers. It is no reason that if an Officer is transferred out while in theprocess of investigating into offences, it will inhibit new officers takingover his duties. In such an event no officer can be transferred out ashe will always be in the course of his duties investigating intooffences.
After this application was filed the petitioner filed a further petitiondated 22nd July, 1996 for a limited purpose of obtaining an interimorder to suspend the transfer of the petitioner to Tangalle until thefinal determination of the original application. The original applicationwas heard on 22nd August, 1996. In the subsequent petition thepetitioner averred that on 01.02.1996 the petitioner was transferredfrom Kebitigollewa to Colombo Range and on 11.06.1996 he wastransferred from Colombo Range to Transport Division and on
he was transferred from Transport Division to Tangalle. Hefurther averred that for One Year and Ten Months from 01.01.1994 to
the petitioner had been transferred to Eight (8) Divisions.
This subsequent transfers of course is prima facie an infringementof Fundamental Right, but the respondents were never called upon tofile objections to this second petition and therefore no adjudicationcan be made on this issue.
For these reasons I am of opinion that the petitioner's originalapplication had to be dismissed. Accordingly I dismiss theapplication without costs.
Application dismissed.
By majority decision Relief granted.