Legal Services and Laws of Sri Lanka


SLR-1984 Vol.1-P215

SLR - 1984 Vol.1, Page No - 215


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 powers of appointment,transfer,dismissal
and disciplinary control of Public Officers by Public Service Commission orCommitteethereof-Article55(5)ofthe
Constitution - Jurisdiction of Election Court to decide questions regarding validity of acceptance of letterofresignation
of a Public Officer - Reference to Supreme Court in terms of Article 125 (1) of the Constitution.

At the hearing of the Election Petition against the 1st respondent, a preliminary objection was raised byhisCounselthat
the Election Court had no jurisdiction to inquire into the validity oftheacceptanceoftheletterofresignationof
12.4.1983 from his post of Principal, Galaboda Aturuwella Maha Vidyalaya, Induruwa, under the Department of Education ofthe
Government of Sri Lanka, submitted by the 1st respondent to the Regional Director of Education, Galle, "by reason ofArticle
55(5) of the Constitution."

The contention of the petitioner was that the Regional Director was not competent and had no legal authoritytoacceptthe
1st respondent's letter of resignation and terminate his services as Principal as he had notbeendelegatedtherequisite
powers by the Public Service Commission or by a Committee thereof under Article 58 (1)readwithArticle57(1)ofthe
Constitution.

The Election Judge acting in terms of Article 125 (1) of the Constitution referred thefollowingquestiontotheSupreme
Court for determination:

"Is the acceptance of a resignation of a public officer, anorderordecisionwhich,byreasonoftheprovisionsof
paragraph (5) of Article 55 of the Constitution of the Democratic Socialist Republic of Sri Lanka, cannot beinquiredinto,
pronounced upon or in any manner called in question in the exercise of thejurisdictionoftheCourtofAppealtotry
Election Petitions?"
Held-

The provisions of Article 56 (5) may be invoked or appliedonlywhentheorderordecisioninregardtoanymatter
concerning the appointment, transfer, dismissal or disciplinary control of aPublicOfficerismade,interalia,bya
"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 of appointment, transfer, dismissal & disciplinary control of any category ofPublicOfficers.
The burden of establishing that there has been no such express delegation to the Regional Director ofEducation,Galle,is
on the petitioner. If the petitioner establishes that there has been no express delegation, then the 1st respondent maylead
evidence that there has been an implied delegation 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 Election Judge as towhethertherehadbeen
any express or implied delegation by the Public Service Commission or by a Committee thereof of alloranyofthepowers
referred to in Article 58 (1) of the Constitution to the Regional Director and whether he had legal authority toacceptthe
1st respondent's letter of resignation and terminate his services.

The record is sent back for the Election Judge to record hisfindingsoffactonthequestionofdelegation.Ifthe
delegation is found to be express the question ends there, if implied, the finding must be referred by the Election Judgeto
the Supreme Court for a determination whether such implied delegation satisfies the requirementsof"delegation"envisaged
in Article 58(1) and whether Article 55(5) could be invoked in the circumstances of this case. (The petitionerwasreserved
the liberty to contend that 11 resignation" does not come within the scope of Article 55(5) and thatimplieddelegationis
not sufficient to satisfy the constitutional requirement of Article 58(1 ).)

REFERENCE by Election Judge to the Supreme Court under Article 125 (1) of the Constitution.

K N. Choksy, S.A., with Neville de Jacolyn Seneviratne, L. C.Seneviratne,DayaPelpola,LakshmanPerera,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 Prasanthalal de Alwis S. C., as amicus curiae.
January 10, 1984.
SHARVANANDA, A.C.J.-read the following order of the Court :

At the hearing of the Election Petition against the 1st respondent, one of the preliminary objections raised byhiscounsel
was "that the election court had no jurisdiction to inquire into the validity of the acceptance of the letter ofresignation
submitted by the 1st respondent to theRegionalDirectorofEducation,Galle,byreasonofArticle55(5)ofthe
Constitution". With reference to his objection he submitted that since it raised a question relatingtotheinterpretation
of a provision of the Constitution it hadtobereferredtotheSupremeCourtintermsofArticle125(1)ofthe
Constitution. Counsel for the petitioner and the Senior State Counsel protested against this reference on theground,inter
alia, that Article 55 (5) of the Constitution had no application to the question involved in the proceedings. JusticeG.P.
S. de Silva, the Election Judge, has however referred to this Court, the following question, in terms of Article 125(1)of
the Constitution:

"Is the acceptance of a resignation of a public officer, an order or decision which, by reasonoftheprovisionsof
paragraph (5) of Article 55 of the Constitution of the Democratic Socialist Republic of Sri Lanka, cannotbeinquired
into, pronounced upon or in any manner called in question in the exercise of the jurisdiction of the Court of Appeal to
try Election Petitions ?"

We have heard counsel for the 1st respondent and for the petitioner and, in terms of Article 125 (1), we makethefollowing
determination on the question referred to us by the Election Judge.

In our view, the provisions of Article 55 (5) may be invoked or applied only when the order ordecisioninregardtoany
matter concerning the appointment, transfer, dismissal or disciplinary control of a Public Officer is made inter alia,bya
"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 of appointment, transfer, dismissal or disciplinary control of any category of Public Officers.

According to the scheme of Chapter IX of the Constitution (Articles 54-61),theappointment,transfer,dismissaland
disciplinary control of Public Officers are vested in the firstinstanceintheCabinetofMinisters.TheCabinetof
Ministers is however authorised to delegate such powers to the Public Service Commission subject to thelimitationthatit
cannot do so in respect of Heads of Departments. The Cabinet is further authorised, notwithstandinganydelegationtothe
Public Service Commission, to -delegate to any Minister its power of transfer, in respect of such categories ofofficersas
may be specified, and upon such delegation the Public Service Commission or any Committee thereof cannot exercise suchpower
of transfer, in respect of such categories of officers - vide article 55 (1),(2) and (3).

Article 57 (1) provides that whenever the Cabinet of Ministers so directs the ChairmanofthePublicServiceCommission,
shall appoint a Committee of the Public Service Commission to exercise the powersoftheCommissioninrespectofsuch
category of Public Officers as are specified in such direction.

Article 58 (1) further provides that the Public Service CommissionoranyCommitteethereofmaydelegatetoaPublic
Officer, subject to such conditions as may be prescribed by the Cabinet of Ministers, itspowerofappointment,transfer,
dismissal or disciplinary control of any category of Public Officers.

It is the case of the petitioner thattheRegionalDirectorofEducation,Galle,who,itisalleged,acceptedthe
resignation, was not legally competent to accept the letter of resignation submitted by the 1st respondent to him ashewas
not a Public Officer, to whom, in terms of Article 58(1)oftheConstitution,thePublicServiceCommissionorany
Committee thereof had delegated its power of appointment, transfer, etc., and that hence the Regional Director ofEducation,
Galle, had no legal authority to accept the 1st respondent's letter of resignation dated 12.4.83 and terminatehiscontract
of service as Principal of Galaboda Aturuwella Maha Vidyalaya, Induruwa, under the Department of Education of theGovernment
of Sri Lanka.

Mr. H. L. de Silva, Counsel for the 1st respondent contended that the delegation of the powers referred to in Article 58(1)
may either be express or implied and that in the absence of express delegation, where the Regional Director had undercolour
of office, been in the habit of accepting letters of resignation from PublicOfficersworkingunderhimandwheresuch
acceptance had not been rejected or disowned by the Ministry or the Department of Education, but had been acquiesced inthen
the conclusion may, in the circumstances be drawn, that there had been implied delegationofthepowerstotheRegional
Director and that the Regional Director had implied authority to accept the letter of resignation.

In our judgment the burden of establishing that the powers referred to in Article 58 (1) of theConstitutionhadnotbeen
expressly delegated to the Regional Director of Education, Galle, rests on the petitioner and if heestablishedthatthere
was no express delegation of the relevant powers to the Regional Director, then the1strespondentmayleadevidenceto
establish that there had been an implied delegation of the powersreferredtoinArticle58(1)bythePublicService
Commission or the Committee thereof to the Regional Director, so as to make theexerciseofsuchpowerbytheRegional
Director, valid and binding.

Mr. Choksy, Counsel for the petitioner has submitted that implied delegation will not be sufficient to meet therequirements
of delegation " under Article 58 (1) of the Constitution. In our view, to enable this Court to give a final pronouncementon
the hypothetical submission of Counsel, it will be necessary to have a record of the finding of fact bytheElectionJudge
whether there had been any express or implied delegation by the Public Service Commission or any Committeethereof,tothe
Regional Director of Education, Galle, of all or any of the powers referred to in Article 58(1)oftheConstitutionand
whether the said Regional Director had legal authority to accept the 1st respondent's letterofresignationandterminate
his services.

Hence we direct that the record be returned to the Election Judge, for him to record his findings, whether there had beenan
express or implied delegation to the Regional Director of Education, Galle, of the relevant powers intermsofArticle58
(1) of the Constitution. If he finds that there is express delegation the question ends there, but if he finds that thereis
no such express delegation then he shall proceed to record his findings, whether there has been implieddelegationofsuch
powers and if he does come to the conclusion that there has been such an implied delegation he shall referthatfindingto
this Court to make a determination, whether such delegation of power is envisaged by Article 58 (1) andwhetherArticle55
(5) could be invoked in the circumstances of this case. In the argumentofthatreference,libertyisreservedtothe
petitioner to contend that "resignation" does not come within the scope of Article 55 (5) and that implied delegation isnot
sufficient to satisfy the constitutional requirement of Article 58 (1).

Since the Election Petition has to be heard and disposed of without delay, we direct the Election Judge to hear andconclude
the Election Petition and give his determination on the various issues arising on the Election Petition andonlythereafter
to transmit his answer to the question referred to above,tothisCourt.IftheElectionPetitioncanbedetermined
independently of the application of Article 55 (5) of the Constitution, the Election Judge maymakehisdeterminationand
order on the petition along with his findings referred to above.

Case sent back for Election Judge's findings as directed.


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