Legal Services and Laws of Sri Lanka

SLR-1998 Vol.2-P96

SLR - 1998 Vol.2, Page No - 96








Application for revision/review - Judgment of the Supreme Court - Fundamental Rights - Interpretation of Articles 15 (8),55
(5) and 126 of the Constitution.

The petitioner (Inspector-General of Police) who was the 2nd respondent in the above applicationandwhoseorderforthe
summary transfer of the petitioner in that application (a Sub Inspector) was quashed by the Court later applied for areview
of the judgment and for an interpretation of certain Articles of the Constitution by a fuller Bench.

1. Article 15 (8) of the Constitution does not permit derogation from Article 12 in the case of members of thePoliceForce
otherwise than by means of law. For the purpose of Article 15 (8) "Law" means only legislation.

2. Article 55 (5) does not purport to impose any limitation on the jurisdiction of the Court under Article 126.

3. Before he invoked the jurisdiction under Article 126 the petitioner need not have exhausted allotherremediessuchas
redress from the Minister of Defence, the President, the Public Service Commission or the Inspector General of Police.

Per Fernando, J.
"The Questions of Law and fact sought to be raised by the Inspector - General of Policeforthefirsttimearepatently
untenable, and do not merit consideration by afullerBench.Theapplicationisthuswhollydevoidofmerit,quite
misconceived and inexcusably delayed. . ."

APPLICATION for revision and/or review of a judgment of the Supreme Court. * [*1997 - 1 - SLR].
May 21, 1998

For the reasons stated in our judgment dated 26.9.97, in which the facts are fully set out, we quashed the order ofthe2nd
respondent (the Inspector-General of Police) summarily transferring the petitioner (a Sub-Inspector) fromWeerambugederato
Moratuwa. In this order, the parties . are referred to as in the original application SC No. 128/96.

More than six months later, on 2.4.98, the 2ndrespondentfiledthisapplication-whichisdescribedasbeing"an
application for revision and/or review, and. an application under article 132 of theConstitutionforconsiderationbya
fuller Bench, and an application for the interpretation of Article 15 (8), under Articles 118, 125 and 126 read withArticle
12 of the Constitution and an application to interpret sections 114 (e), (f) and (h) andsection63(2)oftheEvidence
Ordinance, as matters of general and public importance".

The petitioner had been serving as officer-in-charge, Weerambugedera, from August, 1992byaPolicemessagereceivedon
5.1.96, he was informed that the 2nd respondent had ordered his transfer toMoratuwa,asasub-inspector(supernumerary)
with effect from 5.1.96. He filed an application under Article 126 on 30.1.96 alleging that that transfer wasnotinterms
of the Establishments Code and the Departmental regulations, but had been made at therequestofthe3rdrespondent,an
Attorney-at-law and the SLFP chief organizer for Polgahawela. Leave to proceed was granted on 5.2.96, andaninterimorder
staying the transfer was made on 16.2.96.

The petitioner says that on 6.1.96 he "called on the 3rd respondent". The 3rd respondent admits that he gavethepetitioner
a letter dated 6.1.96 (P7), addressed to the 1 st respondent, the Deputy MinisterforDefence,statingthatatthe3rd
respondent's request one sub-inspector Ratnatilleke had been transferred from Puttalam to Weerambugedera (in thePolgahawela
electorate) with effect from 6.1.96, and that in consequence the petitioner had been transferred toMoratuwa.Herequested
that the transfer of the petitioner, who was agood,honestandefficient(orenthusiastic)officer,toMoratuwabe
cancelled and that he be transferred to a place like Kegalle, Kandy or Anuradhapura.

The petitioner says that he posted that letter to the1strespondenton13.1.96,alongwithacoveringletter(P7A)
addressed to the 1st respondent.

The relevant portions of the affidavits of the 1st and 2nd respondents, dated 8.3.96 and 12.3.96, havebeenquotedinour
judgment. The 1st respondent did not frankly admit or deny the receipt of P7 and P7A, but claimed thathehadnopersonal
recollection as to whether P7 had been received by him. He did not say what steps he had taken to have his filescheckedto
see whether there had been any such correspondence, and if so what action had been taken. The 2ndrespondentsaidthathe
was unaware of P7 and P7A, necessarily implying that even if P7 and P7A had reached the 1st respondent,the2ndrespondent
had not received them (or copies) from the 1st respondent.

Neither the 1st nor the 2nd respondent suggested any reason why the 3rd respondent should have falselystatedthathehad
made a request for the transfer of SI Ratnatilleke.
The petitioner then filed a counter-affidavit dated 19.4.96, and produced (as P8) a letter dated 6.2.96 signedbyMajorS.
M. Wijeratne, as private secretary to the 1 st respondent, addressed to the petitioner. The subject-matter was statedtobe
the variation of the transfer of the petitioner. That was an acknowledgement of the receipt of aletter(dateunspecified)
addressed to the 1st respondent. P8 stated that, on the instructions of the 1st respondent, that letterhadbeenreferred,
for suitable action, to the Inspector-General of Police, to whomallfuturequeriesshouldbeaddressed,andP8also
indicated that, on the directions of the 1st respondent, a copy of P8 was being sent to the Inspector-General of Police,for
suitable action and reply, together with the letter in question (presumably, the original).

During the sixteen months between then and the hearing, the 1st and 2ndrespondentsmadenoattempttocontradictthat
affidavitor to clarify the position as to the receipt of P7 and P7A by the 1st respondent, and theirtransmissiontothe
2nd respondent, and whether P8 referred to P7 and P7A or to some other letter.

As for the petitioner's transfer, the 2nd respondent's position was that it was "acontinuationoftheendoftheyear
transfers for 1995"that the decision to transfer him "to a distant station" was taken after considering tworeports(made
in October, 1994), and because he "was made aware that some other complaints against the petitioner were pending" andthat
he considered a transfer necessary "so that proper inquiries could be conducted".

Several questions of fact arose. Had SI Ratnatilleke been transferred atthe3rdrespondent'srequest?HadP7andP7A
reached the 1st respondent? Had P7 and P7A been forwarded on the 1st respondent's instructions tothe2ndrespondent?Had
the 1st and 2nd respondents denied or adequately explained the 3rd respondent'sstatementthatSIRatnatillekehadbeen
transferred at the 3rd respondent's request? Finally, were the transfers of St Ratnatilleke and the petitionernormalyear-
end transfers for 1995?

In the 2nd respondent's recent affidavit dated 2.4.98, he makes reference both to the letters P7, P7A and P8, as wellasto
the 1995 year-end transfers. He claims that the 1st respondent had, in his affidavit dated 8.3.96, "admitted havingreceived
a letter from the petitioner and the fact that his Private Secretary, Major S. M. Wijeratne acknowledged that letter byP8".
That averment is quite incorrect, because the 1st respondent had made no such admission. Further headmitsthat"According
to P8, P7 and P7A had been forwarded to the 2nd respondent...fornecessaryaction".However,elsewhereinthesame
affidavit he says, inconsistently, that "P8 . . . did NOT prove that it referred to P7 and P7A. Copies of P7 and/or P7Awere
NOT sent to the IGP by either registered mail or ordinary mail or in any other manner". He also says that P7A is notatrue
copy of the covering letter which the petitioner sent to the 1st respondent, but does not produce that coveringlettereven
now to verify the truth of his allegation.

These are all matters which were within the knowledge of the 1st and 2nd respondents: Did the 1st respondent receiveP7and
P7A? What exactly was acknowledged by P8, and forwarded to the 2nd respondent with a copyofP8?Didthe2ndrespondent
receive that copy of P8, and if so what - if anything - was annexed thereto?Theyhadampleopportunitytoclarifythe
position and to produce the relevant documents from the official files, between 19.4.96 and 21.8.97. The 2ndrespondentdid
not do so then, and has not done so even now. His present affidavit does notfranklyadmitordenywhetherP8andits
enclosure(s) were received by him, and does not annex whatever document he did receive if P8 reached him.

There is thus absolutely no reason to reconsider our finding that the 3rd respondent probably did request the transfer ofSI
Ratnatilleke to Weerambugederathat as a result it became necessary to transfer the petitioner outofWeerambugedera and
that the petitioner's transfer was thus the consequence of the 3rd respondent's request.

As for the 1995 year-end transfers, the 2nd respondent now referstonewmaterialinsupportofthisclaimthatthe
petitioner's transfer was just one of 69 year-end transfers. Since SI Ratnatilleke's name was on the same list oftransfers,
it must necessarily follow that his transfer too was one of the 1995 year-end transfers. The 2nd respondenthasproduceda
circular dated 11.7.95 signed by him in his (then) capacity of Senior DIG(Administration)fortheInspectorGeneralof
Police. That circular stipulates the following, inter alia:
(a) Such transfers will be made either on application by the officer concerned, or upon a nomination by supervisoryofficers
(there was never a suggestion that the petitioner made any such application)
(b) Nominations were possible only in respect of two categories:

(i) those whose work and conduct were considered unsatisfactory andwhosetransferoutoftheDivisionwasconsidered
desirable: these had to be in Form 51 (pink)

(ii) those who had completed 8 years, service in the Division: these had to be in Form 51 (white)

(c) . The OIC Divisions had to forward nominations, with his personal comments andrecommendations,totheRangeDIGby
31.7.95the latter had to send them to Headquarters by 10.8.95Transfer Board decisions had to be conveyed by1.9.95,the
closing date for appeals was 20.9.95and Appeal Board decisions had to be communicated by 15.10.95
(d) No nominations were to be entertained after theclosingdate,unlessdelaywasduetounforeseenorunavoidable

There are two significant aspects of this scheme. The first is the safeguard of a decision by the Transfer Boardsubjectto
an appeal as well. If nothing else, the grant of a right of appeal implies a duty to give reasons. Thesecondisthatthe
scheme contemplated that in general there would be no summary transfersan officer would know that he was beingtransferred
by mid October, more than two months before the commencement of the nextyear,thusfacilitatinghisarrangementsabout
housing, spouse's employment, and, mostimportant,children'sschooling.Indeed,thecircularspecified,amongother
guidelines, that "the ages of children must be given and if a transfer would affect schooling it mustbeclearlyindicated
with reasons". The scheme did not contemplate that an officer could be denied thesafeguardsimplicitinthescheme,by
delaying or withholding a "nomination", and then summarily dealing with his transfer as a "continuation oftheendofthe
year transfers"the same safeguards applied, mutatis mutandis.

Since SI Ratnatilleke's name was on the same list, it follows that there should have been either a pink or a whiteformfor
him. His form, as well as the petitioner's, has not been produced even nowand there is no explanation why thepetitioner's
transfer was delayed beyond the stipulated deadline. But we do have the 3rd respondent's categorical assertion thattransfer
was at the 3rd respondent's request.

As for the reasons for the petitioner's transfer, the only two reports which the2ndrespondentmentionedwerethoseof
October, 1994the second, dated 28.10.94, was from DIG, Kurunegala, to the 2nd respondent. He has nowproducedthesequel
to that report. By a memorandum dated 21.12.94, the DIG, Personnel, asked the DIG, Kurunegala, what action had been takenon
the seven complaints referred to in that report. The reply, minuted on 3.1.95, was that all the allegationshadbeendealt
with, except a 316 charge pending before the Mediation Boardreference was made to a report "appearing atpages3to4",
which has not been produced. There are two handwritten minutes, of February, 1995, "lay by". Those are thesameallegations
in respect of which the 2nd respondent said in his original affidavit: "many of the complaints had to be dropped due tolack
of evidence whilst some other complaints had been withdrawn or settled on alaterdatebeforestepscouldbetakento
conduct a fuller inquiry or to prosecute the petitioner".

Assuming that a "nomination" under the 1995 year-end transferschemewasneverthelesspossibleonthebasisofthose
allegations, the process should have commenced by July, 1995the TransferBoarddecisionandreasonsshouldhavebeen
communicated by 1.9.95and the petitioner ought not to have been deprived of his right of appeal, andofhisrighttoa
timely decision on appeal by 15.10.95. The fact that 2nd respondent has produced neither the relevant pinknominationform,
nor any part of the proceedings of the Transfer Board or the Appeal Board, indicates that some other transferprocedurehad
been followed for the petitioner, and perhaps also for SI Ratnatilleke.

The new material produced by the 2nd respondent thus confirms that, beyonddoubt,thepetitioner'stransferwasnotin
accordance with the circular which he himself issued on 11.7.95. It confirms the petitioner's claimthathistransferwas
not in terms of the departmental regulations.

There is thus no reason whatever to consider issuing noticeofthe2ndrespondent'spresentapplicationontheother

As noted in our judgment, that judgment does not preclude disciplinaryproceedingsagainstthepetitionerforanypast
misconduct, or his transfer, in accordance with the applicable rules and regulations.

It is, however, necessary to refer to some other aspects of this application. A petitioner has to lodge an applicationunder
article 126 within one month. Here eighteen months elapsed between the grant of leave to proceed andthehearing the2nd
respondent had ample opportunity to place all the material he wished to before the Court, but he did notseektoreplyto
the petitioner's counter-affidavit of 19.4.96. After judgment was delivered on 26.9.97 the petitioner,althoughrepresented
by the Attorney-General, apparently took no steps to obtain adviceaboutseekingreview,fornearlyfourmonthsuntil
21.1.98. While the proxy he had given the state attorney remainedinforce,anotherattorney-at-law(presumablyonthe
instructions of the state attorney, cf. Rule 4 of the Code of Conduct and Etiquette for attorneys-at-law) advised him onthe
merits of a revision application. That delay of nearly four months in seeking advice is unacceptable, asisthesubsequent
delay of over two months in filing this application. However, the 2nd respondent seeks to explain that delay, bygivingall
sorts of reasons. One is that "the Jayasikuru operation was to recapture the Northern and Eastern Provinces fromtheLTTE
terrorists... I was extremely busy with the attendant work in theoperations" anotheristhat"theProvincialCouncil
Elections in the North-Eastern Provinces doubled the work of the Police Department". Errors andomissionsarepossiblein
affidavits, but the Head of the Police Force should have beenable,withoutanydifficulty,todescribecorrectlythe
objective of the Jayasikuru operation, as well as the nature of theelectionswhichtookplacerecentlyintheJaffna
District. Such a lack of care and accuracy, in a 23 page affidavit stated to have been drafted, bycounseland"readover
and explained" by a DIG (instead of an independent Justice of the Peace), creates doubts as to the reliability, of theother
averments therein.

Having delayed for over six months to file this application until 2.4.98 - which was one but the lastworkingdayforthe
first term - it was tendered with a letter addressed to the Registrar from the new registeredattorney-at-lawstatingthat
counsel who would be appearing to support the application was a practitioner in Australia thathewas"longoverduein
Australia to appear in the cases he has undertaken to do there"that cases in which he is appearing are adjourned untilhis
arrival in Australiaand that "any day in April would be convenient". Since the second term commencedon27thApril,the
Court was in effect being asked to fix this application for one of the last fourdaysofApril-regardlessofbenches
already constituted, and other cases set down, much earlier, for hearing during that period, as well as of the need toissue
notice on the other parties giving them adequate time for preparation. Undoubtedly,thejudiciaryinthecourseofits
service to the community in the administration of justice does consider the convenience ofAttorneys-at-law,butneverto
the extent of subservience to their convenience.

In support of that request two facsimile messages from Australia were annexed to the 2ndrespondent'saffidavit,inorder
"to emphasise the need to obtain priority to get this case listed at your earliest". One facsimile message isdated13.2.98
and refers to an appointment in District Court chambers on 17.2.98, while the other is dated 16.3.98 and refers to ahearing
on 10.4.98. The messages do not indicate that counsel was required for either matter. In any event, they have nobearingon
counsel's alleged inability to appear in Sri Lanka in May or thereafter.

Other submissions have been simply thrown into the 2nd respondent's petition. One is that Article 15 (8)permitsderogation
from Article 12, in the case of members of the Police Force, otherwisethanbymeansoflegislation:thatispatently
untenable, because "law" is definedin regard to the entire chapter on fundamental rights, "law" includes onlylegislation,
save in the exceptional cases where emergency regulations are expressly includedand thedefinitionof"writtenlaw"is
totally irrelevant. Another is that Article 157 recognises bilateral treaties, andthatthecourtshouldthereforehave
considered the Universal Declaration on Human Rights and the International Covenant on Civil and PoliticalRights.Inwhat
way that would have affected our decision is not stated. An examination ofArticle157revealsthatitisconfinedto
bilateral investment treaties (entered into for the specific purpose of promotion and protection offoreigninvestmentsin
Sri Lanka) after approval by Parliament in the manner prescribed therein, and has no application in thisinstance.Athird
argument is that Article 55 (5) gives only a limited power to this Court in respect of transfers of policeofficers.Itis
enough to say that Article 55 (5) does not purport to impose any limitation on the jurisdiction of this CourtunderArticle
126. Finally, it is urged that "an applicant must exhaust all the other remedies underthelaw,ifavailable,beforehe
invokes [the jurisdiction under Article 126] . . : and the petitioner failed to (first] seek redressfromtheMinisterof
Defence, Her Excellency the President, the Public Service Commission or theInspector-GeneralofPoliceortheDistrict
Court". All these contentions are wholly devoid of merit, and were quite rightly noturgedbylearnedstatecounselwho
appeared at the original hearing.

The material now furnished by the 2nd respondent confirms the findings of this Court in its judgmentdeliveredon26.9.97.
The questions of law and fact sought to be raised for the first time are patently untenable, and do notmeritconsideration
by a fuller bench. The application is thus wholly devoid of merit, quite misconceived, and inexcusably delayed, and thereis
therefore no reason to issue notice on the other parties. The application is rejected.

FERNANDO, J. - I agree.
WIJETUNGA, J. - I agree.
GUNAWARDENA, J. - I agree.
Notice refused.
Application rejected.

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