017-SLLR-SLLR-2000-V-2-KOTAKADENIYA-v.-KODITHUWAKKU-AND-OTHERS.pdf
KOTAKADENITA
v.KODITHUWAKKU AND OTHERS
COURT OF APPEAL.
DE SILVA, J.
CA 1135/99.
24th, 31st MARCH. 2000.
Writ of Certiorari – Transfer of Police Officers – Delegation of power by thePublic Service Commission to the Inspector General of Police – Could aSenior Deputy Inspector General of Police be transferred by the InspectorGeneral of Police? ■ Ultra vires – Ouster clause – Applicability of Article 55- Constitution – Interpretation Ordinance S.22 – Malafides.
The Petitioner who is a Senior Deputy Inspector General of Police, wastransferred by the Inspector General of Police (I.G.P.). The Petitioneralleged that the purported transfer was in effect a demotion and the I.G.Phas no authority/power to transfer him as that power/authority is givento the Public Service Commission (P.S.C.) and the P.S.C has notdelegated that function to the I.G.P.
It was contended by the Is' Respondent (IGP) that the rank of SeniorDeputy Inspector General (S/DIG) falls within the Rank of DeputyInspector General (DIG), the reason being that S/DIG’s are in fact'D.I.G.’s' and the P.S.C. has delegated the power of transfer of D.I.G's tothe I.G.P. (Is' Respondent).
It was further contended that Article 55(5) of the Constitution ousts thejurisdiction of court to inquire into or call in question any order of anyPublic Officer in regard to any matter concerning'. . . transfer . . .’ of aPublic Officer.
Held :
(1) It would appear that upto December 1992 , the P.S.C. had exercisedthe power over all gazetted officers namely, S/DIG's, DIG’s. S.S.P’s etc..In 1992 the then I.G.P has requested that the delegation of power oftransfer of all officers of and below the rank of D.I.G to be given to him.The P.S.C had obliged by delegating the power of transfer of all Policeofficers of and below the rank of D.I.G to the then I.G.P even though atthat time the S/DIG rank was in existence.
176
Sri Lanka Law Reports
(200012 Sri L.R.
Considering the documents placed before Court it appears that theranks. (S/DIG's and D.I.G.). are distinct and separate, the S/DIG beingsenior to the D.l.G and is in a separate cadre.
The ouster clause would be of no effect if the order is made by anofficer who does not have legal authority to do so. In such a case, thedecision is null and void.
The I.G.P. has no power or authority to transfer a S/DIG and thedecision therefore is ultra vires: therefore court has jurisdiction to hearand determine the question in issue.
Per De Silva. J.
“The clarification by the P.S.C(1R3) does not withstand much scrutiny inthe face of all the material and I am of the view that a document issuedon second thought does not have the effect of validating an invalid act bythe I.G.P namely the transfer of the Petitioner."
Allegation of malajides demands proof of a higher degree.APPLICATION for a Writ of Certiorari.
Cases referred to :
Abeywickrema vs Pathirana [ 1986] 1 Sri.L.R. 120
Athapattu vs Peoples Bank [1997] 1 Sri.L.R. 208
Chandrasena vs Attorney General [19891 1 Sri.L.R. 120
Cunarathne vs Chandrananda de Silva (1998) 3 Sri.L.R. 265
Gunasinghe vs Dissanayake [1994] 2 Sri.L.R. 132
ChuladeSilva, P.C., with RohanSahabandu. ChandanaLiyanapatabendiand Athula Perera for Petitioner.
SaleemMarsooJP.C.. Additional Solicitor General with Nerin Pulle S.C forlsl and 4th Respondents.
R.K.W. Gunasekera for 2nd Respondent.
Cur. adv. vuli.
May 5, 2000.
DE SILVA, J.By this application the petitioner, a Senior DeputyInspector General seeks a mandate in the nature of a writ of
CA
Kotakadeniya u. Kodithiuvakku and Others
(De Silva, J.)
177
prohibition to prohibit the transfer by the first respondentInspector General of Police by order dated 07. 11. 1999 fromSenior Deputy Inspector General in Charge of crime andIntelligence officer to be in charge of Criminal Record Officeand Technical Branches and also for a mandate in the natureof a writ of certiorari quashing the said decision/deterrninationcontained in the document marked (P. 8). The petitioneralleges that the said transfer or the purported transfer is ineffect a demotion to him and the Inspector General has nopower to demote him.
The petitioner is a veiy senior police officer. He joined asan ASP in 1966 and was confirmed in 1969. Thereafter he waspromoted to the rank of SP in 1975. SSP in 1980 and DIG in1987. In 1995 he was promoted to the rank of Senior DeputyInspector General with effect from 02. 08. 1994.
As Deputy Inspector General the petitioner had been incharge of the Southern Range, Northern Range, Uwa Range,Police HQ, and Logistics Range, As Senior Deputy InspectorGeneral he was in charge of the Colombo Range, the SL PoliceReserve, Civil Defence Force, Eastern Range, and since 14. 09.1998 Crimes, Criminal Intelligence and Organized Crime.
The petitioner’s promotion to the rank of senior DeputyInspector General was made in terms of PI, a letter from theSecretary Public Service Commission dated 11. 09. 1995.
The letter reads as follows, “is promoted to the rank of
Senior Deputy Inspector General with effect from 2nd August1994”.
The petitioner states inter alia that the Criminal RecordDivision to which he has been transferred comes under S/DIGCrimes and Intelligence, which post he was holding at the timeof the transfer. The petitioner has annexed the OrganizationalStructure of the Police Department as evidence there ofmarked P2.
178
Sri Lanka Law Reports
120001 2 Sri L.R.
The petitioner had also annexed an extract from thePublic Administration circular No. 2/97 which indicates thehierarchy of the Police Department and according to the saidcircular the highest rank is the IGP, next comes the S/DIG andthen the DIG and so on. The said document also indicates thesalary scales applicable to the relevant respective ranks andshows that the scale of the S/DIG is higher than that of theDIG.
In terms of document P5, it appears that as at 03.07. 1989there had been three S/DIG’s and nineteen DIG’s and as at01. 07. 1992 there had been three S/DIG’s and twenty DIG's.
The petitioner also relies on the Police TelephoneDirectory, issued by the 1st respondent which again lists theofficers in terms of the aforesaid hierarchy. The petitionersubmits that all these documents bear testimony to the factthat the S/DIG ranks above the post of DIG.
On 08. 11. 1999 the petitioner received P8, dated07. 11. 99, from the 1st respondent IGP which was a directivetemporarily transferring the petitioner from S/DIG Crimesand Criminal Intelligence to be in charge of the CriminalRecord Office and Technical Branches and would be based atthe CRD building. The directive further contained that thepetitioner should occupy the room formerly used by S/DIGDharmadasa Silva who was compiling a book on the PoliceDepartment.
In terms of P9, Public Service Commission Circular No. 4of 17. 02. 93, the transfers and disciplinary control of all staffgrade officers came under the control of the Public ServiceCommission. In terms of P10, the Public Service Commission,on 14. 12. 1992 delegated the power with regard to transfersof”. . . all Police officers of and below the rank of DIG. . . .’’ Tothe IGP ”… in view of the exigencies specific to the PoliceDepartment”. Accordingly, the petitioner claims that the powerof transfer of S/DIG’s has not been delegated by the PublicService Commission to the lsl respondent IGP. The Petitioner
CA
Kotakadeniya v. Kodithuwakku and Others
(De Silva. J.)
179
states that the IGP has acted ultra vires his powers intransferring the petitioner who is a S/DIG and that the IGP hasno power or jurisdiction to transfer him. The petitioner statesthat in terms of P10, the IGP can transfer only officers of andbelow the rank of DIG and that accordingly the petitionerbeing a S/DIG does not come within the ambit of P10. ThePetitioner states that he verily believes that the Public ServiceCommission has not delegated its powers of transfer ofS/DIG’s to IGP or any other person.
The petitioner also states that the Criminal RecordDivision came under him as S/DIG Crimes and CriminalIntelligence and that it was headed by a SSP and as such thetransfer tantamouts to a demotion for the petitioner, and thatin terms of the office to which he is transferred his functionsare of a trivial nature and are not commensurate with theduties of a S/DIG. He also alleges malafides on the part of the1st respondent in effecting the said transfer. The petitionerstates that the actual reason for the transfer was that he tookpart in a television discussion and made certain remarks. Thisposition the Inspector General has denied.
Consequent to this application by the petitioner, a stayorder was issued by this Court staying the transfer until thedetermination of this application.
In reply to the petitioner, resisting the issue of a stay order,the 1st respondent claims that the rank of S/DIG falls withinthe rank of DIG the reason being that S/DIG’s are in fact DIG’s.
With his affidavit Inspector General produced a documentmarked 1R1, a circular from the Public Service Commission,No. a/7/1, dated 14th December 1992, wherein the power oftransfer of DIG’s has been delegated to the IGP. The relevantportion reads:
“2. Transfers – The powers of transfers of all police officersof and below the rank of DIG are delegated to the IGP in viewof the exigencies specific to the Police Department.”
180
Sri Lanka Law Reports
120001 2 Sri LR.
This is the full text relevant to P10. The affidavit ofInspector General states that he is advised that DIG refers toS/DIG as well. He has also annexed marked 1R2 a query to thePublic Service Commission seeking an affirmative clarificationto 1R1 that the rank DIG as used in 1R1 includes S/DIG's aswell to which the Public Service Commission had written to theDefence Ministry that “DIG” as used in 1R1 includes S/DIG’sas well and that transfers of S/DIG’s are never referred to thePublic Service Commission. This letter of clarification hasbeen annexed as 1R3.
In his objections proper. Inspector General has admittedthat from the rank of DIG the Petitioner was promoted to therank of S/DIG on 11. 09. 1995 with effect from 02. 08. 1994.(para 7) The posts held by the petitioner from the time he joinedthe Police department as per the 1st respondent appearsubstantially the same as claimed by the petitioner though the1st respondent sets out certain disciplinary actions that hadbeen taken against the petitioner.
The question to be dealt with by this count is whether theIGP is empowered to transfer a Senior Deputy InspectorGeneral.
In his objections proper, the 1st respondent reiterates hisposition that the rank of DIG includes that of S/DIG. The 1strespondent states that in terms of the Police Ordinance thereference ”IGP” shall be deemed to include DIG and that thePolice Ordinance provided only for DIG’s, SP’s and ASP’s etc.With the increase in cadre the rank of DIG was sub divided intoS/DIG and DIG with two different salary structures “butnecessarily and descriptively the post of S/DIG is the same asany person who is categorized as and falls into the rank ofDIG”.
The 1st respondent has annexed marked 1R11 a list ofS/DIG’s including the petitioner who has, in the past, beentransferred by the IGP whilst being S/DIG’s and states that thePublic Service Commission has never exercised any powerregarding the transfer of a S/DIG.
CA
Kotakadeniya v. Kodithuwakku and Others
(De Silva. J.)
181
The 1st respondent has admitted documents P3, P4, P5,P6, and P8 respectively and states that the Criminal RecordsOffice had to be updated due to the increase in the volume ofcrime and to be on par with modem technology and that assuch it was decided to appoint a senior officer to be in charge.
In reply to the objections the petitioner filed a counteraffidavit and produced a number of fresh documents which areof relevance in determining this application. The petitionerproduced as P16, a letter from the 1st respondent dated 19. 12.1999 whereby DIG T. N. de Silva had been posthumouslypromoted to the rank of S/DIG along with others who had diedin the course of duty at the Town Hall bomb blast during thelast Presidential Election. The letter reads:
“The following deceased officers are posthumouslypromoted to the under mentioned rank with immediate effect:
Late DIG Mr. T. N. de Silva as Senior DeputyInspector General of Police.
….”
P20 is a letter to Secretary/Defence addressed by the thenIGP dated 29. 06. 94 setting out the permanent cadre in thePolice Staff: The relevant portion reads as follows:
"Secretary / Defence.
PERMANENT CADRE IN THE POLICE DEPARTMENTI refer to your letter dated 9th June 1994 on the abovesubject. The required particulars are given below:
Approved Cadre of the Regular Police (with STF)
Sgd/TPF de Silva/IGP
182
Sri Lanka Law Reports
120001 2 Sri L.R.
P21: Document showing strength of the PoliceDepartment as at 30. 11. 94 by Director Personnel to IGP. Italso sets out the cadre as 05 S/DIG'S, 29 DIG's and 12 Super.DIG’s and so on. P22, the Administrative Report of the Policefor the Year 1991, P23 for 1992, and P24 for 1993 certified bythe respective IGP’s and in all these reports the ranks of S/DIGand DIG are distinctly listed the latter following the former inhierarchy. P25 is the circular regarding Badges of Rank. Interms of P25:
S/DIG: State Emblem, Star and floral wreath with crossbattens, Gorget patches of black velvet with “Palapethi” designin Silver on either side and a Thick Silver line at the center withChromium plated small button.
DIG: State Emblem with floral wreath cross battens.Gorget patches of black velvet with “Palapethi” design in Silveron either side and a thick silver line at the center withChromium plated small button.
It would appear that the badge of the S/DIG is differentfrom that of the DIG in that the badge of the DIG is minus theStar as is in the S/DIG badge.
In terms of document P5(a), a report prepared byMr. Earnest Perera former Inspector General of Police itappears that as at 03. 07. 1989 there had been three S/DIG'sand nineteen DIG’s. The three Senior DIG's referred to in thatreport are Mr. T. P. F. de Silva appointed as Senior DIG on15. 02. 1987, Mr. M. E. P. Perera appointed on 21. 07. 1987and Mr. R. B. Rajaguru appointed on 01.08. 1988. This showstwo things, firstly (1) that the post of S/DIG had been inexistence even in 1987 and secondly (2) the most Senior PoliceOfficers are appointed to these posts. When Mr. Earnest Pererawrote to the Public Service Commission on 10. 12. 1992 thethree most Senior Officers who were holding the post ofS/DIG's were Mr. T. P. F. de Silva, Mr. M. Ariyasingha andMr. M. Selvaratnam (P5(b)). Subsequently P. B. Ekanayakahad been promoted with effect from 01. 08. 1992.
CA
Kotakadeniya u. KodUhuwakku and Others
(De Silva, J.)
183
As stated earlier the main question arising out of thisapplication is whether the IGP has the power and authority totransfer a S/DIG. The petitioner’s position is that the PublicService Commission delegated the power of transferring DIG’sto the IGP and that the rank of S/DIG does not fall within therank of DIG but is higher than the rank of DIG. The Is1respondent takes a directly opposed stand and takes theposition that the Public Service Commission delegated itspower of transfer of DIG’s to the IGP and that the S/DIG comeswithin the general rank of DIG and accordingly the IGP has thepower of transferring a S/DIG.
It would appear that up to December 1992 the PublicService Commission had exercised the powers of transfer of allgazetted officers namely S/DIG’s, DIG’s. SSP’s, SP’s and ASP’sand probationary ASP’s. In sequence of events, as per thedocuments marked in this application, in 1992 the then IGPMr. E. E. B. Perera wrote to the Public Service Commissionrequesting that the delegation of power of transfer of all officersof and below the rank of DIG to be given to him. The PublicService Commission obliged by delegating the power oftransfer of all Police officers of and below the rank of DIG to theIGP. This was in 1992. Apparently after 1992 the IGP hadexercised the power of transfer of S/DIG’s consequent to thedelegation on the assumption that he had powers to do so andin that exercise had also transferred S/DIG's as well as thepetitioner on some occasions. It is to be observed that Rll.document tendered by the Inspector General refers totransfers done after 1995. No documentary evidence wasplaced before this Court to establish the fact that the personwho sought and got the authority viz Mr. Earnest Perera or hissuccessor Mr. Frank De Silva had effected any transfer ofS/DIG’s from 1992-1995. The petitioner's acquiescencein these transfers cannot be construed as a bar to hiscomplaining of lack of authority of the IGP in a subsequenttransfer by the IGP. The petitioner complains here because healleges that he had been stripped of his authority and placedin charge of a unit that was earlier manned by a SSP.
184
Sri Lanka Law Reports
120001 2 Sri L.R
Considering the documents placed before the Court by thepetitioner, namely PI, whereby the petitioner has been“promoted” to the rank of S/DIG from DIG, the OrganizationalStructure of the Police Department wherein the ranks ofS/DIG and DIG have been distinctly listed, the PublicAdministration Circular which sets out the hierarchy to thePolice Department which also lists the S/DIG above the DIGin separate ranks, the different salary scales applicable interms of that circular, the Reports of several InspectorsGeneral of Police where S/DIG’s have been named above theDIG’s and the Telephone Directory, for whatever it is worth asevidence which again differentiates between S/DIG’s andDIG’s, it would appear that the rank of S/DIG is senior to anddistinct from that of DIG.
This is more emphasized by the documents filed by thepetitioner in his counter affidavit where P19 has “promoted"DIG T. N. de Silva posthumously to S/DIG, P20 where the 1GPhad forwarded a report of Permanent Cadres to the SecretaryDefence and listed S/DIG above and over DIG’s, P21 byDirector Personnel again listing S/DIG’s separately, and theAdministrative Reports for 1991, 1992,1993 marked P22, 23.and 24 certified by the respective IGP’s again setting out theS/DIG cadre separate and over the DIG cadre and finally thedifferences in the badges of the two ranks – S/DIG and DIG, allgo to establish that the rank of S/DIG is quite different anddistinct from that of DIG.
The clarification by the Public Service Commissionproduced by the respondent marked (1R3) does not withstandmuch scrutiny in the face of all the above mentioned factorsand I am of the view that a document issued on second thoughtcannot have the effect of validating an invalid act by theIGP – namely the transfer of the petitioner. Furthermore, theletter requesting the delegation of power of transfer by IGP E.E. B. Perera, marked x, did not refer to S/DIG which rank evenat that time was in existence. Accordingly, it would appear inthe face of the documents that IGP E. E. B. Perera himself has
CA
Kotakadeniya v. Kodithuwakku and Others
(De Silva, J.)
185
chosen to omit the S/DIG’s who are second only to the IGP, inhis request for a delegation of power. It is not possible now forthe Public Service Commission to include in its delegation acategory not mentioned in the request itself. Nor does thedocument advice us of the nature of the discussion referred totherein.
The position taken up by the 1st respondent that the rankof DIG includes S/DIG is untenable and cannot be sustainedbecause it appears from the documents tendered to Court thatthe ranks have been distinct and separate, the S/DIG beingsenior to the DIG and being in a separate cadre. I hold that theInspector General had acted in excess of his authority when hetransferred a Senior Deputy Inspector General.
Question was also raised with regard to the jurisdiction ofthis Court to hear and determine this application. LearnedCounsels for the ist and 2nd respondents contended that thelanguage of Article 55(5) of the Constitution is sufficiently wideto oust jurisdiction of Court to inquire into, pronounce uponor call in question any order of any public officer in regard toany matter concerning the appointment, transfer, dismissal ordisciplinary control of a public officer. Additional SolicitorGeneral Mr. Marsoof relied on several judgments starting fromAbeyawickrama vs Pathirana!11 to Athapattu vs Peoples Bank!21He also submitted that Article 55(5) of the Constitution had tobe understood in the light of Section 22 of the InterpretationOrdinance where it states “order, decision, determination,direction or finding made or issued in the exercise or theapparent exercise of the power conferred on such person,authority or tribunal”. It was the submission of Counsel thateven if the 1st respondent did not have actual authority he didhave apparent authority to make the order or decision markedP8 and therefore the jurisdiction of this Court is ousted.Mr. Gunasekara did not support the argument that Section 22of the Interpretation Ordinance is applicable. However hecontended that the present situation is covered by Article55 (5).
186
Sri Lanka Law Reports
I2000J 2 Sri L.R.
There Eire several decisions of the Supreme Court where ithas been held that the ouster clause would be of no effect if theorder is made by an officer who does not have legal authorityto do so. In such case the decision is null and void and thepreclusive clause in the Constitution is no bar to review. InChandrasena us Attorney-General131 the Supreme Court heldthat ouster clause in Article 55(5) would not protect anadministrative act which was ultra vires. In Gunaratna vsChandrananda de Silva141 where a public officer was sent oncompulsory leave by the Secretary Defence, where it ought tohave been by Public Service Commission the Court held thatthe act was ultra vires and the ouster clause did not apply.
In the instant case I have held for the reasons set outabove that the Inspector General has no power or authority interms of letter dated 14. 12. 1992 to transfer a S/D1G and thedecision is ultra vires. In these circumstances I hold that thisCourt has jurisdiction to hear and determine the question inissue.
At the hearing of this case the learned Senior Counsel forthe petitioner did not labour the issue of mala fides. Allegationof mala Jides demand proof of a higher degree. In Gunasinghevs Dissanayaka!51 it was held that one who alleges mala fidesshould establish it to the satisfaction of Court. The petitionerin this case apart from the mere allegation of malafides has notestablished the same to the satisfaction of this Court. I holdthat the Inspector General’s action in transferring thepetitioner has been done without malice.
For the reasons stated above I allow the application of thepetitioner and quash the decision on P8 which refers to thetransfer of the petitioner. I make no order with regard to costs.
Application allowed.
Ed. Note
The Supreme Court on – 21. 11. 2000 in SC SPLLA 108/2000refused special leave to the Supreme Court.