048-SLLR-SLLR-1997-V-1-RATNASIRI-RAJAPAKSHA-v.-RATNASIRI-WICKRAMANAYAKE-AND-OTHERS.pdf
RATNASIRI RAJAPAKSHA
v.
RATNASIRI WICKRAMANAYAKE AND OTHERS
SUPREME COURT.
DR. AMERASINGHE, J.
DHEERARATNE, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 95/96.
C.A. APPLICATION NO. 350/94.
OCTOBER 15.1996.
Writ of Certiorari – Removal of the Chief Executive Officer of a Local Authority -Section 2, the Powers of Supervision of the Administration of Local AuthoritiesStatute, No. 4 of 1991 of the Western Provincial Council – Section 2 of the Statute.
The petitioner who was the Mayor of the Colombo Municipal Council wasremoved from his office by the 1st respondent who was the then Minister incharge of the subject of Local Government in the Western Provincial Council. Bya letter dated 19.5.94 the 1st respondent informed the petitioner that in the reportof 0. S. M. Seneviratne (5th respondent, a retired judicial officer) it is stated that inrespect of 3 matters, the petitioner had acted contrary to the provisions of theMunicipal Councils Ordinance. The 1st respondent added that he was“compelled" in the exercise of his powers under the powers of supervision of theAdministration of Local Authorities Statute. No. 4 of 1991 of the Western ProvincialCouncil to remove the petitioner from the office of Mayor.
Held:
On a plain reading of the provisions of Section 2 of the Statute, the duty of the.Minister is to read the report of the retired judicial officer and with the assistanceof his findings of fact to proceed to be personally satisfied that there were one ormore acts or omissions specified in Section 2(1)(a)-(d) of the Statute. The Ministeris also statutorily obliged to exercise his own judgment as to whether in thecircumstances of the case he ought to remove the Mayor. He is not under anylegal compulsion to remove the Mayor even if he was satisfied that the Mayor wasguilty of one or more of the acts or omissions specified in Sections 2 (1)(a)-(d).
APPEAL from the judgment of the Court of Appeal.
Romesh de Silva, P.C. with Palitha Kumarasinghe and Ms. S. Amarasekera forpetitioner.
S. Sivarasa, P.C., with S. Mahenthiran for 2nd and 4th respondents.
K.C. Kamalasabeyson, P.C., A.S.G. with N. Pulle S.C for 6th respondent.
1st and 5th respondents unrepresented.
Cur. adv. vult.
February 25,1997.
' DHEERARATNE, J.
The petitioner was the Mayor of the Municipal Council Colomboand the 1st respondent was at the time material to this action, theMinister of Western Province Provincial Council, to whom the subjectof Local Government was assigned. The 1st respondent appointedthe 5th respondent to inquire into and report on five charges madeagainst the petitioner. The 5th respondent having inquired into theallegations reported to the 1st respondent that there was sufficientevidence to prove three of those charges. The 1st respondent thenwrote the letter dated 19.5.94 to the petitioner removing him from theoffice of Mayor.
An English rendering of the Material part of that letter which is inSinhala reads:-
According to the material contained in the (report) of the O. S. M.Seneviratne Commission, out of the 5 matters alleged against youit is stated that in respect of 3 matters you have acted contrary tothe provisions of The Municipal Councils Ordinance.
I also Kindly inform you that in terms of powers vested in me inaccordance with the provisions of Powers of Supervision of theAdministration of Local Authorities Statue No. 4 of 1991 of theWestern Province, I am compelled to remove you from the office ofMayor, with effect from 20th of this month.
For your information I am sending herewith a copy of thereport of the O. S. M. Seneviratne Commission.
The-petitioner then moved the Court of Appeal by way of anapplication for a Writ of Certiorari to get the order of the 1strespondent contained in the letter referred to above quashed onseveral grounds. One of the grounds was that the decision of the 1strespondent to remove the petitioner was taken without satisfyinghimself of the matters referred to in the report of the 1st respondent.The Court of Appeal dismissed the application for Writ on severalgrounds namely:-
that the intention of the Statute was to delegate the function ofdeciding whether the relevant authority was guilty or not of any of theacts set out in section 2(i) (a) to the retired judicial officer;
that the existence of the report of the inquiry officer satisfiedthat requirement of satisfaction of the Minister;
that the Minister was obliged to act on such report in theexercise of his discretion under section 2(1) (i), and where he doesact, the presumption is that he did so on the facts revealed in thereport;
that although the letter of the Minister does not expressly statethat the Minister was satisfied that the petitioner was guilty of the actsset out in the report, it is implicit in that letter that he in factconsidered the report before arriving at the decision to remove thepetitioner from office; and
that the Minister was not in any event bound by the generalrule requiring him to direct his own mind to such matters but couldact on the report of a competent inquiry officer.
The petitioner has appealed to this Court from the judgment of theCourt of Appeal and it is primarily contended on his behalf that theCourt of Appeal misconstrued the relevant provisions of the ProvincialCouncil statute regarding the function of the Minister vis-a-vis thereport of the inquiry officer. Let me set down in full at this stagesubsections (1) and (2) of section 2 of The Powers of Supervision ofthe Administration of Local Authorities Statute No. 4 of 1991 of theWestern Province Provincial Council:-
2(1). If at any time the Minister of Board of Ministers of theProvincial Council of the Western Province to whom the subject ofLocal Government has been assigned is satisfied that there issufficient proof of –
Incompetence and mismanagement; or
persistent default in performance of duties imposed by therelevant law, statute or any other written law; or
persistent refusal or neglect to comply with any provisions oflaw or statute; or
abuse of powers conferred by the relevant law statute or anyother written law; or
persistent refusal to hold or attend meetings or to vote or totransact business at any meeting to be held.
On the part of any Local Authority, or any of the members of anyLocal Authority, or on the part of the Chief Executive Officer of anyLocal Authority, the Minister may as the circumstances of eachcase may require by order published in the Gazette:-
remove the Chief Executive Officer of such Authority; or
remove all or any of the members of such Authority from office;or
dissolve such Local Authority;
and such order shall as soon as may be convenient be laid beforethe Provincial Council.
The Minister shall before making an Order under subsection(1) (i) or (ii) or (iii) appoint for the purpose of satisfying himself inregard to matters referred to in paragraph (sic) (i) a retired JudicialOfficer to inquire into and report upon such matter within a periodof three months, and the person so appointed shall in relation tosuch inquiry, have the powers of a Commission of Inquiry underthe Commissions of Inquiry Act.
On a plain reading of those provisions, the Minister may make anorder of removal of the Mayor (the Chief Executive Officer), if he issatisfied that there is sufficient proof of one or more acts ofmisdemeanour (a) to (e) on the part of the Mayor, however theMinister shall before making the said order of removal, for thepurpose of satisfying himself in regard to those matters (a) to (e),
appoint a retired judicial officer to inquire and report on such matters.The process by which the Minister satisfies himself is theconsideration of the report of the inquiry officer. It was contended onbehalf of the contesting respondents that the Minister’s decisionbeing a political decision, it would be improper for him either not tomake an order of removal in accordance with a report of an inquiryofficer holding a Mayor guilty of any misdemeanour or to make anorder of removal disregarding a report of an inquiry officerexonerating a Mayor of any misdemeanour.
I am unable to accept the contentions of learned counsel for therespondents and the interpretation placed on section 2 of the Powersof Supervision of the Administration of Local Authorities Statute No. 4of 1991 of the Western Provincial Council. The duty of the Minister isto read the report of the retired Judicial Officer and with theassistance of his findings of fact to proceed to be personally satisfiedthat there were one or more acts or omissions specified in section2(1) (a) – (d). If the Minister, who is the 1st respondent, was in factsatisfied after a perusal of the retired Judicial Officer’s report, hefailed to refute the averment of the petitioner that he did not satisfyhimself that there were one or more acts or omissions specified insection 2(1) (a) – (d). Section 2 (2) does require the Minister toappoint a retired Judicial Officer to inquire into and report to him onthe allegations specified in the terms of reference issued to theinquiring officer. However section 2 (2) makes it abundantly clear thatthe inquiry is for the purpose of assisting the Minister to make up hismind: the words ‘for the purpose of satisfying himself’, in my view,places the meaning of the provision beyond dispute.
Not only should the Minister have satisfied himself that the Mayorwas guilty of one or more acts or omissions falling within the scope ofsections 2(1) (a) – (d), he was statutorily obliged, in my view, to haveexercised his own judgment as to whether in the circumstances ofthe case he ought to remove the Mayor. The Minister was, in my view,by no means under any legal compulsion to remove the Mayor even ifhe was satisfied that the Mayor was guilty of any one or more of theacts or omissions specified in section 2(1) (a) – (d): section 2provides that “the Minister may as the circumstances of each casemay require … remove the Chief Executive Officer of such Authority”.The Minister and the Court of Appeal erroneously believed that wherethe inquiring officer found the Mayor guilty of some of the acts andomissions specified in the terms of reference, the Minister had nochoice in the matter and that he was bound to remove the Mayor.Learned Counsel for the respondents maintained that the Minister’sdecision is a ‘political decision’. If that be the case, could it havebeen intended that the decision of a retired Judicial Officer engagedfor a limited fact-finding purpose and not accountable to the electorswas to be vested with the virtual power of removal of the Mayor? I donot think so.
For the foregoing reasons, the judgment of the Court of Appeal isset aside and order of Writ of Certiorari to issue quashing the ordermade by the 1st respondent contained in his letter dated 19.5.94removing the petitioner from the office of Mayor. Parties will bear their
own costs of litigation.
DR. AMERASINGHE, J. -1 agree.
WIJETUNGA, J. -1 agree.
Appeal allowed.