026-SLLR-SLLR-2004-V-1-WIJEWARDENA-v.-DIRECTOR-OF-LOCAL-GOVERNMENT-AND-OTHERS.pdf
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Wijewardana v
Director of Local Government and others (Amaratunqa, J.)
179
WIJEWARDANAv
DIRECTOR OF LOCAL GOVERNMENT AND OTHERSCOURT OF APPEALAMARATUNGA, J. ANDBALAPATABENDI, J.
C. A. 37/93 (PHC)
H. C. MATARA 229/92JANUARY 1'8 AND 23, 2002 ANDSEPTEMBER 12, 2003
Writ of certiorari – Local Government Service (Amendment) Act, No. 10 of1985, section 9 (i) – Disciplinary control by whom? – Delegation of power -Constitution – 13th Amendment, Article 170 – Is the subject of LocalGovernment a devolved subject? – Provincial Councils Act, No. 42 of 1987,section 32(2) – Interdiction – Charge sheet – Inquiry – Clerk attached to aPradeshiya Sabha – Procedure – Can the LGSC delegate its powers to aProvincial Commissioner – Is he a public officer?
The petitioner was a Grade l clerk in the Local Government Service (LGS)attached to the Akuressa Pradeshiya Sabha. The Commissioner/Director ofLocal Government (Southern Province) interdicted the petitioner for misappro-priating a certain sum.
The petitioner contends that the Commissioner / Director of LocalGovernment, Southern Province had no power to interdict the petitioner orissue a charge sheet. It was further contended that disciplinary control of theservice to which he belonged should be exercised by the Local GovernmentService Commission or by an officer to whom the Commissioner has delegat-ed its powers. That power was delegated to the Divisional AssistantCommissioner of Local Government, Matara. The appellant's interdiction bythe Provincial Commissioner of Local Government thus has no validity in lawas at that time there was no delegation of the powers of the LGSC to theDirector Local Government, Southern Province.
Held:
(i) Any person holding a paid office under a Provincial Council is a personholding a paid office under the Republic. Even a ProvincialCommissioner of Local Government is a public officer to whom theLGSC may validly delegate its powers under section 9 (i).
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(ii) The delegation of powers is valid from the date on which the ProvincialCouncils (Consequential Provisions) Act came into force. The Actbecame law on 30.5.1989; therefore the delegation of power operatingwith restrospective effect confers validity on the acts done by the 1strespondent from the date of his appointment as the ProvincialCommissioner of Local Government, with regard to disciplinary control.
Per Amaratunga, J.
“A Provincial Council is a subordinate body established for the purpose of
devolving some of the powers of the centre within the framework of a unitary
State."
APPEAL from the judgment of the Provincial High Court of Matara.
Cases referred to:
In Re the 13th Amendment – (1987) 2 Sri LR 312
Jayathevan v The Attorney-General – (1992)2 Sri LR 356 at 363.
Dr. Jayampathi Wickremaratne, P.C., with Pubudini Wickremaratne for
appellant.
Rohan Sahabandu for 1 st respondent.
B. Jayasinghe Tilakaratne, Deputy Solicitor-General for Attorney-General.
January 12, 2004
GAMINI AMARATUNGA, J.This is an appeal against the order of the learned High CourtJudge of Matara, refusing the appellant's application for a writ ofcertiorari to quash the letter of interdiction and the charge sheetissued to him by the 1st respondent. The petitioner was a Grade 1Clerk in the Local Government Service, attached to the AkuressaPradeshiya Sabha. The Commissioner/Director of LocalGovernment, Southern Province, by his letter dated 13/9/1989 (P1)interdicted the petitioner for misappropriating a sum of Rs.42,000/-belonging to the said Pradeshiya Sabha and for other chargesrelating to the administration of the funds of the said Sabha. Thecharge sheet issued to the petitioner by the 1st respondent ismarked P2. The second respondent was nominated to hold theinquiry against the petitioner.
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Wijewardana v
Director of Local Government and others (Amaratunga, J.)
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The appellant's position was that in view of section 7(1) ofPart II of the Local Government Service (Amendment) Act, No. 10of 1985, disciplinary control of the service to which he belongedcould be exercised by the Local Government Service Commissionor by an officer to whom the Commission has delegated its powers.The officer to whom that power was delegated was the DivisionalAssistant Commissioner of Local Government, Matara. His positionwas that the Commissioner/Director of Local Government,Southern Province, had no such powers and accordingly the letterof interdiction and the charge sheet issued to him by that officer hadno validity in law and consequently the Inquiry Officer had noauthority to hold an inquiry against him on the charges contained inthe charge sheet issued to him.
The position of the respondents was that after the 13thAmendment to the Constitution the subject of Local Governmentbecame a function devolved on the Provincial Councils and accord-ingly the Director of Local Government by letter dated 10/9/1989directed that all powers exercised by the Director should be exer-cised by the Directors of Local Government of the Provinces nom-inated by that letter (V1). The Local Government ServiceCommission (LGSC), by Circular No.1/1990 dated 5/1/1990 dele-gated its powers relating to disciplinary control of the officers of theLocal Government Service (other than staff grades) to theProvincial Commissioners. According to the respondents the appel-lant's letter of interdiction issued by the 1st respondent who was theProvincial Commissioner of Local Government of the SouthernProvince was valid. In any event, the Director of Local Governmentand the Secretary of the LGSC, by his letter dated 24/7/1992approved the interdiction and the charge sheet issued to the appel-lant and this approval rectified the defects, if there were any, in theinterdiction of and the charge sheet issued to the appellant. Thelearned High Court Judge has accepted the position of the respon-dents. The learned Judge has further held that the appellant hadnot exhausted all other legal remedies available to him. Accordinglyhe has dismissed the appellant's application.
The position.taken up by the learned President's Counsel in hiswritten submissions filed in this Court on behalf of the appellant isas follows. Local Government is a subject fully devolved to the
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Provinces in terms of the 13th Amendment to the Constitution.Under section 32(2) of the Provincial Councils Act, No. 42 of 1987,disciplinary control of the officers of the Provincial Public Servicewas vested in the Governor, who could delegate his powers to theProvincial Public Service Commission. The appellant wasabsorbed into the Provincial Public Service on 1/1/1990. Prior tothat the appellant belonged to the Central Local. GovernmentService and the LGSC had the powers of disciplinary control overhim. This power was delegated to the Provincial Commissioners of 60Local Government only on 5/1/1990. Therefore the appellant'sinterdiction on 13/9/1989 by the Provincial Commissioner of LocalGovernment (1st respondent) had no validity in law as at that therewas no delegation of the powers of the LGSC to the 1 st respon-dent.
This argument is correct. However as pointed out earlier, theLGSC, by Circular No. 1/1990 dated 5/1/1990, delegated its pow-ers regarding disciplinary control of the officers of LocalGovernment Service (non staff grades) to the Provincial' Commissioners. Did this delegation have any legal effect to make 70the interdiction of the appellant by the 1st respondent valid?
The learned President's Counsel has contended.that the LGSChad no power to delegate its powers to a Provincial Commissioner.
Is this submission correct? The relevant part of section 9(1) of theLocal Government Service (Amendment) Act, No. 10 of 1985,which provides for the delegation of the powers of the LGCS readsas follows. “The Commission may delegate to anv public officer.
its powers of appointment, transfer, dismissal or disciplinary
control of any category of members of the service” (emphasisadded). Article 170 of the Constitution defines a public officer as a soperson holding any paid office under the Republic. A ProvincialCouncil is a subordinate body established for the purpose ofdevolving some of the powers of the Centre within the frameworkof a Unitary State. In re the Thirteenth Amendment to theConstitution0). A Provincial Council is a ‘component of theRepublic'. Jayathevanv the Attorney General. Therefore any per-son holding a paid office even under a Provincial Council is a per-son holding a paid office under the Republic and accordingly is apublic officer within the meaning of the Constitution and also for the
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Wijewardana v
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purposes of the provisions of section 9(1) of Act, No. 10 of 1985.1 nview of this conclusion even a Provincial Commissioner of LocalGovernment is a 'public officer' to whom the LGSC may validly del-egate its powers under section 9(1) of Act, No. 10 of 1985.1 there-fore hold that the delegation of the powers of the LGSC to theProvincial Commissioners made by Circular No. 1 of 1990 dated5/1/1990 was a valid delegation.
The said Circular No. 1 of 1990 states that the delegation of pow-ers made by it is valid from the date on which the Provincial Councils(Consequential Provisions ) Act, No. 12 of 1989) came into force.That Act became law on 30/5/1989. Therefore this delegation ofpower, operating with retrospective effect, confers validity on the actsdone by the 1st respondent from the date of his appointment(10/9/1989) as the Provincial Commissioner of Local Governmentwith regard to the disciplinary control of the appellant. For the abovereasons I hold that by virtue of Circular No. 1 of 1990, the letter ofinterdiction has become valid with retrospective effect.
The charge sheet against the appellant had been issued by the1st respondent on 26/2/1991, at a time when the delegation madeby the LGSC by Circular No. 1 of 1990 was effective and in force.Accordingly I hold that it was a charge sheet, validly issued andaccordingly the 2nd respondent has the power and authority to holdan inquiry against the appellant on the charges set out in thatcharge sheet. In view of this conclusion I affirm the order of thelearned High Court Judge dismissing the appellant's application. Inview of this conclusion it is not necessary for me to examine thecorrectness of the learned High Court Judge's other conclusion thatthe appellant has not exhausted his other legal remedies beforeseeking a writ of certiorari.
The learned High Court Judge has also stated that the appel-lant's application was an attempt to avoid the inquiry to be heldagainst him. I fully agree with this observation. For the reason stat-ed above I dismiss this appeal and affirm the order of the learnedHigh Court Judge. The appellant shall pay a sum of Rs. 5000/- tothe 1st respondent as costs of this appeal.
BALAPATABENDI, J. – I agree.
Appeal dismissed.
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