030-SLLR-1984-V1-ABEYWICKREMA-v.-PATHIRANA.pdf
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Abeywickrema v. Pathirana
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ABEYWICKREMA
v.
PATHIRANA
SUPREME COURT
SHARVANANDA. A. C. J.; WANASUNDERA, J. AND RANASINGHE, J.,
S.C. REFERENCE No. 3/83. ELECTION PETITION No. 5/1983.
DECEMBER 14. 1983.
Election Petition – Articles 57(1) and 58(1) of the Constitution – Delegation of powersof appointment, transfer, dismissal and disciplinary control of Public Officers by PublicService Commission or Committee thereof – Article 55(5) of theConstitution – Jurisdiction of Election Court to decide Questions regarding validity ofacceptance of letter of resignation of a Public Officer – Reference to Supreme Court interms of Article 125(1) of the Constitution.'
At the hearing of the Election Petition against the 1st respondent, a preliminaryobjection was raised by his Counsel that the Election Court had no jurisdiction to inquireinto the validity of the acceptance of the letter of resignation of 12.4.1983 from hispost of Principal. Galaboda Aturuwella Maha Vidyalaya, Induruwa. under theDepartment of Education of the Government of, Sri Lanka, submitted by the- 1strespondent to the Regional Directbr of Education.'dalle, * by reason of Article 55 (5) ofthe Constitution."
The contention of the petitioner .was that the Regional Director was not competent andhad no legal authority to accept the 1 st respondent 's letter of resignation and terminatehis services as Principal as he had not been delegated the requisite powers by the PublicService Commission or by a Committee thereof under Article 58 (1) read with Article57 (1) of the Constitution.
The Election Judge acting'in terms of Article 125 (11 of the Constitution referred'thefollowing question to-the Supreme Court for determination :
"Is the acceptance of a resignation of a publiq officer, an order or decision which, byreason of the provisions of paragraph (5) of Article 55 of the Constitution of theDemocratic Socialist Republic of Sri Lanka, cannot be inquired into, pronounced upon orin any manner'called in question in the exercise of the jurisdiction of the Court of Appealto try Election Petitions ?"
Held-
The provisions of Article 55 (5) may be invoked or applied only when the order ordecision in regard to any matter concerning the appointment, transfer, dismissal ordisciplinary control of a Public Officer is made, inter alia, by a "Public Officer" to whomthe Public Service Commission or any Committee thereof has delegated, in terms of
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Article 58 (1) of the Constitution, the powers of appointment, transfer, dismissal ordisciplinary control of any category of Public Officers. The burden of establishing thatthere has been no such express delegation to the Regional Director of Education. Gale,is on the petitioner. If the petitioner establishes that there has been no expressdelegation, then the 1st respondent may lead evidence that there has been an implieddelegation of the powers referred to in Article 58 (1).
To decide the question, there must be a record-of the findings of fact by the ElectionJudge as to whether there had been any express or implied delegation by the PublicService Commission or by a Committee thereof of all or any of the powers referred to inArticle 58 (If of the Constitution to the Regional Director and whether he had legalauthority to accept the 1 st respondent's letter of resignation and terminate his services.
The record is sent back for the Election Judge to record his findings of fact on thequestion of delegation. If the delegation is found to be express the question ends there,if implied, the finding must be referred by the Election Judge to the Supreme Court for adetermination whether such implied delegation satisfies the requirements of'delegation* envisaged in Article 58 (1) and whether Article 55 (5) could be invoked inthe circumstances of this case. (The petitioner was reserved the liberty to contend that'resignation' does not come within the scope of Article 55 (5) and that implieddelegation is not sufficient to satisfy the constitutional requirement of Article 58{ 1 ).|
REFERENCE by Election Judge to the Supreme Court under Article 125 (1) of theConstitution.
K N. Choksy, S.A.. with Neville de Jacolyn Seneviratne, L. C. Seneviratne, DayaPelpola, Lakshman Perera, Miss. I. R. Rajapakse and Nihal Fernando for petitioner.
H. L. de Silva, S.A.. with K. Shanmugalingam and M. S. A. Hassan for 1st respondent.
M. S. Aziz. D.S.G., with PrasanthalaldeAlwisS.C., as amicus curiae.
Cur.adv.vult.
January 10, 1984.
SHARVANANDA, A.C.J.-read the following order of the Court:
At the hearing of the Election Petition against the 1 st respondent, oneof the preliminary objections raised by his counsel was ‘that theelection court had no jurisdiction to inquire into the validity of theacceptance of the letter of resignation submitted by the 1strespondent to the Regional Director of Education, Galle, by reason ofArticle 55 (5) of the Constitution". With reference to his objection hesubmitted that since it raised a question relating to the interpretationof a, provision of the Constitution it had to be referred to the SupremeCourt in terms of Article 125{1) of the Constitution. Counsel for thepetitioner and the Senior State Counsel protested against thisreference on the ground, inter alia, that Article 55 (5) of theConstitution had no application to the question involved in the
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Abeywickrema v. Pathirana (Sharvananda, A.C.J.)
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proceedings. Justice G. P. S. de Silva, the Election Judge, hashowever referred to this Court, the following question, in terms ofArticle 125 (1) of the Constitution :
"Is the acceptance of a resignation of a public officer, an order ordecision which, by reason of the provisions of paragraph (5) ofArticle 55 of the Constitution of the Democratic Socialist Republic ofSri Lanka, cannot be inquired into, pronounced upon or in anymanner called in questipn in the exercise of the jurisdiction of theCourt of Appeal to'try Election Petitions ?"
We have heard counsel for the 1 st respondent and for the petitionerand, in terms of Article 125 (1), we make the following determinationon the question referred to'us by the Election Judge.
|n our view, the provisions of Article 55 (5) may be invoked orapplied only when the order or decision in regard to any matterconcerning the appointment, transfer, dismissal or disciplinary controlof a Public Officer is made inter alia, by a "Public Officer" to whom the’ Public Service Commission or any Committee thereof has delegated,in terms of .Article 58 (1) of the Constitution, the powers ofappointment, transfer, dismissal or disciplinary control of any categoryof Public Officers.
According to the scheme of Chapter IX of the Constitution (Articles54 – 61), the appointment, transfer, dismissal and disciplinary controlof Public Officers are vested in the first instance in the Cabinet ofMinisters. The Cabinet of Ministers is however authorised to delegatesuch powers to the Public Service Commission subject to thelimitation that it cannot do so in respect of Heads of Departments. TheCabinet is further authorised, notwithstanding any delegation to thePublic Service Commission, to delegate to any Minister its power oftransfer, in respect of such categories of officers as may be specified,and upon such delegation the Public Service Commission or anyCommittee thereof cannot exercise such power of transfer, in respectof’such categories of officers – vide article 55 (1), (2) and (3).
Article 57 (1) provides that whenever the Cabinet of Ministers sodirects the Chairman of the Public Service Commission, shall appoint aCommittee of the Public Service Commission to exercise the powersof, the Commission in respect of such category of Public Officers as arespecified in such direction..
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Article 58 (1) further provides that the Public Service Commission orany Committee thereof may delegate to a Public Officer, subject tosuch conditions as may be prescribed by the Cabinet of Ministers, itspower of appointment, transfer, dismissal or disciplinary control of anycategory of Public Officers.
It is the case of the petitioner that the Regional Director ofEducation, Galle, who, it is alleged, accepted the resignation, was notlegally competent to accept the letter of resignation submitted by the1st respondent to him as he was not a Public Officer, to whom, interms of Article 58 (1) of the Constitution, the Public ServiceCommission or any Committee thereof had delegated its power ofappointment, transfer, etc., and that hence the Regional Director ofEducation, Galle, had no legal authority to accept the 1strespondent's letter of resignation dated 12.4.83 and terminate hiscontract of service as Principal of Galaboda Aturuwella MahaVidyalaya, Induruwa, under the Department of Education of theGovernment of Sri Lanka.
Mr. H. L. de Silva, Counsel for the 1st respondent contended thatthe delegation of the powers referred to in Article 58 (1), may eitherbe express or implied and that in the absence of express delegation,where the Regional Director had under colour of office, been in thehabit of accepting letters of resignation from Public Officers workingunder him and where such acceptance had not been rejected ordisowned by the Ministry or the Department of Education, but hadbeen acquiesced in,then the conclusion may, in the circumstances bedrawn, that there had been implied delegation of the powers to theRegional Director and that the Regional Director had implied authorityto accept the letter of resignation.
In our judgment the burden of establishing that the powers referredto in Article 58 (1) of the Constitution had not been expresslydelegated to the Regional Director of Education, Galle, rests on thepetitioner and if he established that there was no express delegation ofthe relevant powers to the Regional Director, then the 1 st respondentmay lead evidence to establish that there had been an implieddelegation of the powers referred to in Article 58 (1) by the PublicService Commission or the Committee thereof to the RegionsDirector, so as to make the exercise of such power by the RegionsDirector, valid and binding,
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Abeywickrema v. Pathirana (Sharvananda. A.C.J.)
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Mr. Choksy, Counsel for the petitioner has submitted that implieddelegation will not be sufficient to meet the requirements of" delegation " under Article 58 (1} of the Constitution. In our view, toenable this Court to give a final pronouncement on the hypotheticalsubmission of Counsel, it will be necessary to have a record of thefinding of fact by the Election Judge whether there had been anyexpress or implied delegation by the Public Service Commission or anyCommittee thereof, to the Regional Director of Education, Galle, of allor any of the powers referred to in Article 58 (1) of the Constitutionand whether the said Regional Director had legal authority to acceptthe 1st respondent’s letter of resignation and terminate his services.
Hence we direct that the record be returned to the Election Judge,for him to record his findings, whether there had been an express orimplied delegation to the Regional Director of Education, Galle. of therelevant powers in terms of Article 58 (1) of the Constitution. If hefinds that there is express delegation the question ends there, but if hefinds that there is no such express delegation then he shall proceed torecord his findings, whether there has been implied delegation of suchpowers and if he does come to the conclusion that there has beensuch an implied delegation he shall refer that finding to this Court tomake a determination, whether such delegation of power is envisaged'by Article 58 (1) and whether Article 55 (5) could be invoked in thecircumstances of this case. In the argument of that reference, liberty isreserved to the petitioner to contend that "resignation" does not comewithin the scope of Article 55 (5) and that implied delegation is notsufficient to satisfy the constitutional requirement of Article 58 (1)
Since the Election Petition has to be heard and disposed of withoutdelay, we direct the Election Judge to hear and conclude the ElectionPetition and give his determination on the various issues arising on theElection Petition and only thereafter to transmit his answer to thequestion referred to above, to this Court. If the Election Petition can bedetermined independently of the application o/ Article 55 (5) of theConstitution, the Election Judge may make his determination andorder on the petition along with his findings referred to above.
Case sent back for Election Judge's findings as directed.