Legal Services and Laws of Sri Lanka
SLR - 1998 Vol.3, Page No - 265
CHANDRANANDA DE SILVA
COURT OF APPEAL
YAP A, J.,
C.A. NO. 927/98
SEPTEMBER 16TH, 22ND, 29TH, 1998
Writ of Certiorari - Public officer sent on compulsory leave by Secretary, MinistryofDefence-Approvalgivenbythe
Public Service Commission - Validity of such letter - who could issue same - Articles 55, 55 (5)Constitution-Preclusive
clause - Could the court question the conduct of the Commission - Excess of jurisdiction/ nullity-ultra vires.
The petitioner a senior Deputy Inspector General of Police was sent on compulsory leave by letter dated17.8.98bythe
Secretary/Defence as The Commission of Inquiry (Batalanda Commission) had made adverse findings against the petitioner.
It was contended that, the decision to place the petitioner on compulsory leave is ultra vires and therefore is voidinlaw
for the reason that the said decision has not been taken by the proper authority - P.S.C.
1. It was very clear that it was the respondent who hasdecidedtoplacethepetitioneroncompulsoryleaveandhad
thereafter recommended to the PSC that approval be granted to place the petitioner on compulsory leave.
The powers given to the PSC regarding disciplinary control has not beendelegated,thereforethedecisiontoplacethe
petitioner on compulsory leave has to be a personal decision of the PSC, the decision-making body shouldbringtheirminds
to bear on the matter before them and take a collective decision and further there must be evidence to supportthatsucha
decision was in fact made.
2. On the question whether the court was precluded from inquiring into or questioning the conductofthePSCinviewof
Article 55 (5)the decision made by the respondent who had no legal authority to make such a decision is inlawanullity
and such a decision is void and therefore it is open to a court to declare such decision a nullity.
Per Gunawardena, J.
Decision takers should be keenly aware of their responsibilities, that would leadtoamoreconsideredexerciseofthe
powers at their disposal. Proper observance of the law on their part shouldundoubtedlyaffectthequalityofdecision-
making for the better thereby avoiding the need for intervention by court . . .
Per Gunawardena, J.
the facts of this case afford a typical and characteristic example of the most direct and if I maysayso,unproblematical
application of the principle of ultra viresbecausetheSecretary./Defencehadpurportedtoplacethepetitioneron
compulsory leave when he did not have the shadow of a power to do. The P.S.C. is not the after ego oftheSecretary/Defence
although it had acted as if it were.
Per Gunawardena, J.
it is an inflexible and deep rooted principle of law that no act or decision which is voidatitsinceptioncaneverbe
ratified . . . further statutory power must be exercised only by the body or officer in whom it has been reposed orconfided
unless sub delegation of the power is authorised by express words or Necessary Implication . . . further onecannotactor
decide on his own account when infact one is devoid of power to so act or decide and seek to validate thatactordecision
thereafter under the colour of the concept of ratification.
APPLICATION for Writs of Certiorari/Prohibition.
Cases referred to:
1. Cader and others v. Commissioner for Mosques and Muslim Charitable Trusts and others - 66 NLR 16.
2. Abeywickrema v. Pathirana and others 1986 1 SLR 120.
3. PG Ratnayake v. Secretary, Ministry of Public Administration and others -SC 277/95 (FR) SCM 7.5.97.
4. Anisminic Ltd. v. Foreign Compensation Commission - 1969 2 AC 147.
5. Brook v. Brook 1871 Law Reports Exchequer 99.
6. Keighley v. Maxstead - 1901 AC 240 - 1937 AC 898.
K. N. Choksy PC with Mohan Pieris and Ms. K. Wijetunga for petitioner.
K. S. Kamalasabaysen PC, Addl S. G. with U. Egalahewa, SC, for respondent.
November 26, 1998.
HECTOR YAPA, J.
In this application, the petitioner is seeking a Writ of Certiorari to quash the order of compulsory leave, contained inthe
letter of the respondent dated 17.08.98 marked P1, and a writ of Prohibition for the purpose ofprohibitingtherespondent
from taking any further action consequent upon P1.ThepetitionerisSeniorDeputyInspectorGeneralofPolice.The
respondent who is the Secretary, Ministry of Defence, on 17th August, 1998, placed the petitioner on compulsory leave bythe
said letter P1. At the time the petitioner was sent on compulsory leave, he was in charge of Support Service, whichincluded
supervision and control of Sri Lanka PoliceReserves,FieldForceHeadquarters,TransportDivision,WelfareDivision,
Building and Supplies Divisions and the Physical Assets Management Division ofSriLankaPolice.Thepetitionerhas33
years, of continuous service in the Police Department. Having graduated from theUniversityofSriLanka,Peradeniyain
1963, he joined the Police Department on 01. 02.1965asaProbationaryAssistantSuperintendentofPoliceandheld
responsible positions such as Director of National Intelligence Bureau, Director -General ofIntelligenceandSecurityin
the Ministry of Defence, and Senior Deputy Inspector-General (Ranges), supervising thePoliceRangescommandedbyDeputy
Inspectors-General, throughout the whole country.
It will be convenient at this stage to state briefly the circumstances leading to the issuance of acompulsoryleaveorder
against the petitioner. In the year 1995, Her Excellency the President under the Commissions of Inquiry Act, No. 17 of1948,
as amended, appointed a commission of inquiry comprising two judges of the High Court, Honourable D. Jayawickrama (nowJudge
of the Court of Appeal) and Nimal Dissanayake, to inquire into allegations relating to the establishment andmaintenanceof
places of unlawful detention and torture chambers at the Batalanda Housing Scheme.
After the conclusion of the inquiry, the said commissionforwardedtoHerExcellencythePresident,thereportwhich
contained adverse findings against several persons including the petitioner. It would appear from the document markedR1by
the respondent, that the petitioner has been subject to adverse finding by the said commission, in relation to thefollowing
matters: In respect of the inquiry relating to the disappearance of Sub Inspector Rohitha Priyadarshana oftheSapugaskanda
Police Station on or about 20th February, 1990, the Commission report has statedthatthepetitioneralongwithcertain
other police officers had suppressed correct events relating to the disappearance of RohithaPriyadarshana.Thishasbeen
done during the period immediately following the disappearance of the saidofficer,andalsoduringthecourseofthe
inquiry into the said disappearance by the commission. In addition, the commission report has stated that the petitionerand
two other Senior Police Officers had failed to take appropriate actionrequiredbylaw,regardingthedisappearanceof
Rohitha Priyadarshana. With regard to the establishment and maintenance of places of detention at BatalandaHousingScheme,
during the period commencing on the 1 st of January, 1988 and ending on the31stofDecember1990,where,personswere
detained and were subject to inhuman or degrading treatment, the commission report hasstatedthatthepetitionerhaving
assumed duties as Deputy Inspector-General of the Greater Colombo Range, became aware that police officersoftheKelaniya
Police Division were occupyinghousesattheBatalandaHousingScheme,procuredcontrarytothePoliceDepartment
Regulations. However, he refrained from giving appropriate instructions to the relevant PoliceOfficerstotakenecessary
action in this regard, and the said failure on his part led to the continued occupation of the BatalandaHousesbycertain
police officers, resulting in certain houses being used to illegally detain and torture persons. Itwasfurtherstatedin
the commission report, that the petitioner whilst knowing or having reasons to believe that thesaidillegalactivitywas
taking place, refrained from taking appropriate steps to halt such illegal activity from continuing.
It is clear from P1, that having regard to the findings of the Batalanda commission against the petitioner, he has been
placed on compulsory leave, to facilitate proper investigations and inquiries relating to the said findings. The letter P1
dated 17. 08. 98 produced below reads as follows:
CONFIDENTIAL August 17, 1998.
Mr. M. M. Gunaratne
Senior Deputy Inspector General of Police
Through : The inspector-General of Police,
The Secretary to Her Excellency the President has referred to me for necessaryaction,theReportoftheCommissionof
inquiry appointed to inquire into the Establishment and Maintenance of places of Unlawful Detention and TortureChambersat
the Batalanda Housing Scheme.
02. I have noted that allegations made against you by severalwitnesses,yourexplanationstotheCommission,andthe
findings arrived at by the Commission contained in the Report.
03. In order to facilitate proper investigations and inquiries into these relevant allegations and findings, youarehereby
placed on compulsory leave with immediate effect until furthernotice,intermsofpara21.6ofchapterXIIofthe
04. You are requested to hand over all the Government property under your charge to ah Officer/Officers nominated by theIGP
and to inform him the private address and the contact telephone number for further communication.Youarenotallowedto
leave the island without my prior approval.
05. Please acknowledge receipt of this letter.
(R. K. Chandrananda de Silva)
It is this order contained in P1, placing the petitioner on compulsory leave that is being challengedinthisapplication.
It should also be noted that purported decision taken by the respondent is on a wrong legal basis aspara21.6ofchapter
XII of the Establishments Code has no application.
At the hearing of this application Mr. Choksy, President's Counsel submitted on behalf of the petitioner, thatthedecision
to place the petitioner on compulsory leave is ultra vires, or outside jurisdiction andtherefore,voidinlaw,forthe
reason that the said decision has not been taken by the proper authority, namely the Public ServiceCommission.Hepointed
out that according to the constitution of Sri Lanka, Public Service Commissionistheproperauthoritytotakesucha
decision. Learned counsel referred to Articles 55 and 56 of the constitution and contended that in terms ofArticle55(3)
of the constitution, it is the Public Service Commissionwhichhastotakethedecisiontoplacethepetitioneron
compulsory leave, since the appointment, transfer, dismissal and disciplinary control of Public Officers in thecategoryof
the petitioner, is a subject delegated to the Public Service Commission by the Cabinet of Ministers. Article 55(3)ofthe
constitution provides :
The Cabinet of Ministers may from time to time delegate its powersofappointment,transfer,dismissalanddisciplinary
control of other public officers to the Public Service Commission : . . .
Therefore, counsel argued that according to P1, the decision to place the petitioner on compulsory leave hasbeentakenby
the respondent, who was not the proper authority, it was submitted by counsel that lawful exercise ofpowermeantthatit
should be exercised by the authority upon whom it is conferred, and that such power cannot be exercised byanyoneelse.In
the present case, counsel contended that the Public Service Commission is the body empowered in terms of the constitutionto
take the decision to place the petitioneroncompulsoryleaveandthereforethatpowercannotbeexercisedbythe
respondent, who is the Secretary, Ministry ofDefence.Itwasfurtherarguedthatintermsarticle56(8)ofthe
constitution, three members of the Public Service Commission had to bring their ownmindstobearuponthequestionof
placing the petitioner on compulsory leave, and come to a finding by them. Therefore, it was not lawfulfortherespondent
to decide this matter and place the petitioner on compulsory leave. Learned counsel submitted that, clearly thedecisionto
place the petitioner on compulsory leave has been taken by the respondent and this position is made clearfromthewording
of P1 referred to above.
It is necessary to refer here to the document marked R2 by the respondent, which is a letter dated 17. 08. 98 written bythe
Secretary, Public Service Commission, to the respondent. The letter P2 produced below reads as follows.
17th August, 1998
Ministry of Defence
Compulsory Leave - Officers of the Police Department
This refers to your letter dated 17. 08. 1998.
02. Public Service Commission has granted approval for placing the following officers on compulsory leave as recommended by
1. Mr. M. M. Gunaratna-Senior DIG
2............................ - ASP
3............................ - ASP
4............................ - ASP
5............................ -Chief Inspector
Public Service Commission
It was submitted by counsel for the petitioner that this letter (R2) sent by the Secretary,PublicServiceCommission,to
the respondent, does not in any way change the position that the decision to place the petitioneroncompulsoryleavehas
not been taken by the proper authority, for the reason that Public Service Commission has only granted approvalforplacing
the petitioner along with four other Police Officers on compulsory leave, as recommended by the respondent. It wassubmitted
by counsel that, when the exercise of statutory power is given to a particular body of persons, itisnecessarythatsuch
body of persons should exercise such power and come to a decision, without allowing the decision to be made byanyoneelse.
It was further submitted that, a person or the authority empowered to exercise a discretionary power,wouldnotbeacting
lawfully, if a recommendation made by some other person or authority is granted approval. It was submittedthatthereason
for this requirement, was the need for the correct authority, to bring its mind to bear on thefactsandcircumstancesof
the case, before a valid exercise of discretion is made. In support of this contention learned counsel cited twocases.The
first case he cited was Cader and others v. Commissioner for Mosques and Muslim Charitable Trustsandothers(1)Inthat
case the power to appoint trustees was given by the statutetothemembersoftheWakfsBoard.However,WakfsBoard
appointed as trustees of the Mosque from a list given to them by a person (21st respondent) who happened to beamemberof
Parliament. It was held that in selecting a person or persons for appointment astrusteeortrusteesofamosqueunder
section 14 of the Muslim Mosques and Charitable Trusts or Wakfs Act, the discretion of the Wakfs Board hastobeexercised
personally and cannot be abdicated by the Board in favour of anyone else, however competent,honourableorefficientthat
person may be as regards the matter. Any appointment made by the Board as the result of selection by someone else isonlya
colourable appointment and is not an appointment at all. In such a case, section 14 (1) (A) of Act No. 21 of 1962isnota
bar to compel the Board, by writ of mandamus, to appoint a trustee or trustees according to law. Thesecondcasecitedby
counsel was the case of Abeywickrema v. Pathirana and others(2). In this case the question in issue was whether therewasa
valid termination of service, when the Regional Director accepted the resignation from the 1st respondentwhowasagrade
III Principal of a school and relieved him from his duties. It was held that the letter of resignation did not bring abouta
valid termination of the 1st respondent's contract of service because it was not addressed to nor accepted by theAppointing
Authority that is the Educational Service Committee. The Regional Director, Galle, is not the proper authority to acceptthe
resignation . . . In this case it was also held that the practice of regional directors accepting resignations is bad inlaw
as it involves giving them power which they do not possess where there has beennodelegationtothemofthepowerof
appointment, transfer or dismissal.
As submitted by learned counsel for the petitioner it would appear from the contents of P1, that the decisiontoplacethe
petitioner on compulsory leave has been taken by the respondent:Itshouldbenotedthatinparagraph3ofP1,the
respondent has stated as follows: in order to facilitate proper investigations and inquiries into these relevantallegations
and findings, you are hereby placed on Compulsory Leave with immediate effect until further notice, in terms of para 21.6of
chapter XII of the Establishments Code. If the respondent wasreallyconveyingadecisionmadebythePublicService
Commission, it would be reasonable to expect the respondent to mention in P1, that the Public Service Commission hasdecided
to place the petitioner on compulsory leave. However, the wording of P1 does not have any referencetothePublicService
Commission. In the circumstances, the reasonable inference to be drawn from the wording of P1, would be that the decisionto
place the petitioner on compulsory leave, has been taken by the respondent. On this matteritisusefultoconsiderthe
other material furnished to court by the respondent. The respondent inthiscasehasfiledanaffidavitwiththetwo
documents referred to above marked R1 and R2. The document R1 is chapter IXofthecommissionreportundertheheading
findings which refers to the allegations and findings against the petitioner andotherpersons.ThedocumentR2isthe
letter dated 17.08.98 sent to the respondent by the Secretary of the Public Service Commission. According to R2itisvery
clear that, what the Public Service Commission has done in this case, istograntapprovaltoplacethepetitioneron
compulsory leave as recommended by the respondent. Therefore, it would appear that the decision to placethepetitioneron
compulsory leave has been taken by the respondent, who has made his recommendation to the Public ServiceCommissionseeking
their approval. This position is clear from the affidavit filed by the respondent. Paragraph 7 (D), (E) oftherespondent's
affidavit states as follows:
7 (D). that in view of the directions received from Her Excellency the President and having considered thecontentsofthe
findings against the petitioner, I took steps to place the petitioner on compulsory leave and accordinglyItookstepsto
serve the letter marked P1 on the petitioner through the Inspector-General of Police. I annex herewith a copy ofchapterIX
of the said report of the Commission marked R1 which contains the findings and recommendations of the said Commission
7 (E). that simultaneously I sought the approval of the Public Service Commission for placing thepetitioneroncompulsory
leave which was granted on the same day as P1 viz 17th August, 1998. I annex herewith a copy of the saidletterdated17th
August, 1998 marked R2.
Therefore, it is very clear, that, it was the respondent who has decided to place the petitioner on compulsory leave andhad
thereafter recommended to the Public ServiceCommissionthattheapprovalbegrantedforplacingthepetitioneron
compulsory leave. The respondent has not filed in court, his letter dated 17.8.98 which is referred toinR2,seekingthe
approval of the Public Service Commission after placing the petitioner on compulsory leave.Evenintheabsenceofthis
letter, it would appear from the paragraph 7 D and E oftheaffidavitoftherespondentreferredtoabove,thatthe
respondent having taken steps to place the petitioner on compulsory leave, simultaneously sought the approval ofthePublic
Service Commission, for placing the petitioner on compulsory leave, which was granted on the same day by R2.
In this case it was the function of the Public Service Commission as provided bylawtoconsiderthematerialavailable
against the petitioner personally and arrive at a decision to place the petitioner on compulsory leave, ifthematerialso
warranted. However, it is to be observed that the respondent has taken the decision to placethepetitioneroncompulsory
leave and has recommended to the Public Service Commission to grant their approval to the decision made by him.Eventhough
the Public Service Commission has granted their approval to the recommendation made by the respondent, having regardtothe
speed at which all these things had happened, it is obvious that the Public Service Commission has notbroughttheirminds
to bear on the facts of this case and taken a decision. All that the Public Service Commission has doneistoapprovethe
recommendation made by the respondent. Therefore, obviously it is a decision made bytherespondentandwhatthePublic
Service Commission has done is to rubber stamp the respondent's recommendation. A publicbodywhichmerelyrubberstamps
some other officer's recommendation will therefore, be acting unlawfully. It iscommongroundthatpowersgiventothe
Public Service Commission regarding the disciplinary control of the petitioner has not been delegated to therespondentand
therefore, the decision to place the petitioner on compulsory leave has to be apersonaldecisionofthePublicService
Commission. What is necessary here for the Public Service Commission is to keep the decision in their own hands.
In a Fundamental Rights case, P. G. Ratnayaka v. The Secretary, Ministry ofPublicAdministrationand11others(3),the
Supreme Court expressed the view that the decision taken by one of the members of the Public Service Commission toquashan
inquiry held against the petitioner was arbitrary. One of the matters in issue in that case was the question of thevalidity
of the order made by the Public Service Commission quashing or invalidating the 1st inquiry proceedingsheldandconcluded
against the petitioner. It was observed in that case that the 6th respondent as the Chairman oftheDisciplinaryBoardof
the Public Service Commission had decided on30.05.1995toquashthefirstinquiryheldagainstthepetitioner.On
02.06.1995 the other two members of the DisciplinaryBoardhaveminutedtheiragreement.ItwasobservedbyShirani
Bandaranayake, J. at page 9 that: Although the 6th respondent had averred that as the Chairman of the DisciplinaryBoardof
the Public Service Commission, he chaired the meeting of the board on 2nd June when thedecisionwastakentoquashthe
inquiry proceedings and to order a fresh inquiry in respect of thechargesframedagainstthepetitioner,thereisno
evidence to support this statement. According to the available material, I am of the view thatthedecisiontoquashthe
inquiry and to order a new inquiry was taken by the 6th respondent alone on the 30th May. The other 2 members hadagreedto
this decision on the 2nd of June. Taking into consideration the sequence of events and all the factsandcircumstances,it
is clear that the decision to quash the first inquiry is an arbitrary decision taken bythesixthrespondentalone.This
observation of the Supreme Court in that case makes it very clear that the decision-making body should bring theirmindsto
bear on the matter before them and take a collective decision, and further there must be evidencetosupportthatsucha
decision was in fact made.
In this case, one cannot deny the fact that the nature of the findings against the petitionerbytheBatalandaCommission
are serious allegations and require further investigations.Itwouldbethat,furtherinvestigationsmayrequirethe
petitioner to be placed on compulsory leave. However, the decision to place the petitioner oncompulsoryleavehastobe
made by the Public Service Commission alone and it is not open to therespondenttotakethisdecision.Therefore,the
decision taken by the respondent to place the petitioner on compulsory leave, and then seeking theapprovalofthePublic
Service Commission, which was granted, is not a decision that is lawful, for the reason that it was not a decisiontakenby
the Public Service Commission after a proper evaluation of the available material.
Further, at the hearing of this application, the learned Additional Solicitor-General fortherespondentsoughttoargue
that the court was precluded from inquiring into or questioning the conduct of thePublicServiceCommissioninviewof
Article 55 (5) of the constitution provides :
Subject to the jurisdiction conferred on the Supreme Court under paragraph (1) of Article 126nocourtortribunalshall
have power or jurisdiction to inquire into, pronounce upon or in any manner call in question, any order ordecisionofthe
Cabinet of Ministers, a Minister, the Public Service Commission, a Committee of the Public Service Commission or of apublic
officer, in regard to any matter concerning theappointment,transfer,dismissalordisciplinarycontrolofapublic
This submission was based on the preclusive clause provided in this article of the constitution. However, it mustbestated
here that a decision made by the respondent who had no legal authority to make such a decision is in law a nullityandsuch
a decision is void and therefore it is open to a court to declare such a decision a nullity. In the caseofAnisminicLtd.
v. Foreign Compensation Commission (4) majority of judges held that thewrongdecisionofthecommissiononwhatthey
regarded as a jurisdictional fact vitiated the decision since the tribunalhadexceededitsjurisdictionbythiswrong
decision. The ouster clause therefore, was not applicable as there was no true determination by the tribunal asrequiredby
the statute. In the same case at page 170 Lord Reid stated as follows: Ifyouseektoshowthatadeterminationisa
nullity, you are notquestioningthepurporteddetermination-youaremaintainingthatitdoesnotexistasa
determination. It is one thing to question a determination which does exist : it is quite another thing to say that thereis
nothing to be questioned.
Similarly in the case of Abeywickrama v. Pathirana and others (Supra) it was held that Article 55(5)oftheconstitution
does not protect orders or decisions of a Public Officer which are nullities or ultra vires from judicial review.Therefore,
the ouster clauses do not prevent the court from inquiring or intervening in cases of excess ofjurisdictionorwherethe
order or decision made is a nullity.
In these circumstances therefore, the decision taken in this case, to place the petitioner on compulsory leave, is anullity
or ultra vires and has no legal effect. It is appropriate here to refer to the passage that was cited by learnedPresident's
counsel for the petitioner from Wade and Forsyth Administrative Law, 7th edition, page 43 Anyadministrativeactororder
which is ultra vires or outside jurisdiction is void in law, ie deprived of legal effect. This isbecauseinordertobe
valid it needs statutory authorisation, and if it is not within the powers given by the Act, it has nolegallegtostand
on. The court will then quash it or declare it to be unlawful or prohibit any action toenforceit.Theterminologyhere
depends to some extent on the remedy granted. 'Quashing' is used in connection with the remedy of Certiorari.Adeclaratory
judgment is an alternative remedy with similar effect : it declares the offending act to be a nullity in law. Prohibitionof
execution may be an order of prohibition(aprerogativeremedy)oraninjunction.Butthesetechnicalitiesmadeno
difference to the legal result: an act found to be outside jurisdiction (ultra vires) is void and a nullity, beingdestitute
of the statutory authority without it is nothing.
Once the court has declared that some administrative act is legally a nullity, the situation is as if nothinghadhappened.
In this way the unlawful act or decision may be replaced by a lawful one. If a compulsory purchase order is quashed asbeing
ultra vires, there is nothing to prevent another order being made in respect of the sameland,providedthatitisdone
lawfully. Thus a public authority or tribunal is often given locus poenitentiae and is able correct an errorbystartinga
fresh - something which it might otherwise be unable to do.
For the above reasons, I hold that the order to place the petitioner on compulsory leavecontainedinP1dated17.08.98,
made by the respondent has no legal effect. Accordingly I make order granting the Writ of Certiorari asprayedforbythe
petitioner quashing the said order contained in P1. Further, I make anorderinthenatureofaWritofProhibition,
prohibiting the respondent from taking any further action in terms of said compulsory leave ordercontainedinP1.1would
make no order as to the costs of the application.
U. DE Z. GUNAWARDANA, J.
I agree with the order proposed by my brother the draft of which I read on the 18th inst. But in view of the significanceof
the issues that arise, I think, it is fitting that I should give my reasons in a separate judgment.
This is an application for certiorari and prohibition made by the Petitioner, who had been a Senior Deputy InspectorGeneral
of Police, seeking respectively to quash and prohibit the execution of thedecisionmadebytherespondentwhoisthe
Secretary, Ministry of Defence, placing the petitioner on compulsory leave by letter dated 17th August 1998 (P1) witheffect
from that date.
In deciding this application, in the circumstances of this case, the inquiry would centre on two crucial matters:(a)Did
the respondent have the authority to make the impugned decision placing the petitioner oncompulsoryleave (b)if,not,
could the granting of approval subsequently, by the Public Service Commission, validate or giveefficacytotheaforesaid
decision in question made by the respondent.
It is as clear as clear can be that the respondent does not have any more right than any other public officertoplacethe
petitioner on compulsory leave. The learned Additional SolicitorGeneralwhoappearedfortherespondent,unreservedly
conceded that the Public Service Commission had not delegated totherespondentoranyotherauthorityitspowersof
appointment, transfer, dismissal or disciplinary control in respect of the petitionerorinrespectofthecategoryof
public officers to which the petitioner belonged. So that the resulting position may aptly and pithilybeputasfollows:
Both the respondent (the secretary/defence) and thepetitioner(TheDeputyInspectorGeneralofPolice)beingpublic
servants the former had no more right to take disciplinary action against the petitioner than the latter had toinitiateor
take any such action against the former. That is, perhaps, what one with discernment would have wanted to say andthatis
how he would have said it. It is worth observingthatthePublicServiceCommissionmayunderArticle58(1)ofthe
constitution delegate its powers in respect, be it noted, of any categoryofPublicOfficers.Butsuchdelegationmust
necessarily be made subject to such conditions as may be prescribed by the cabinet - so that it isamoot-pointwhich,of
course, does not call for consideration in the factual matrix of this case, as to whether such a delegation can ever bemade
pursuant to Article 58(1) in respect of one or a particular officer or a few or several officers - because the article58(1)
in express terms contemplates a category of public officers which means a delegation in respect of a class - as opposed toa
delegation in respect of an individual officer or a delegation ad hominem.
The arguments of both parties before us were rested on the footing that although under Article 55(1) of the constitutionthe
appointment, transfer, dismissal and disciplinary control of public officers was vested in the cabinetofMinisters-yet
there had been a delegation of such power, in respect of the category of officers to which the petitionerbelonged,tothe
Public Service Commission. In this regard, it is pertinent to note thatitwasthePublicServiceCommissionthathad
promoted the petitioner to the rank which he held as at the date that the respondent purported toplacehimoncompulsory
leave, (vide letter dated 23.12.1993 marked P3 whereby the petitioner was apprised ofthedecisionofthePubicService
Commission promoting him to the post of Deputy Inspector GeneralofPolice.Thelaw,initssagacity,perhaps,being
conscious of the fact that it will lead to a dead-lock inmatters,ifithadbeenotherwise,hadtakencare,asis
invariably the rule in such matters, to repose powers of appointment, dismissal and disciplinary control andsooninone
and the same body, in this instance, the Public Service Commission. The respondent does not, under theconstitutionofthe
Republic, have the semblance of a right or power to take any disciplinary action against thepetitionerandhisdecision,
which had been conveyed to the petitioner by letter dated 17.08.1998 under the hand of the respondent (Secretary /Defence),
placing the petitioner on compulsory leave, is as void as void can conceivably be. The facts of this caseaffordatypical
and characteristic example of the most direct and, if I may say so, unproblematical application oftheprincipleofultra
vires because the Secretary/Defence had purported to place the petitioner on compulsory leave when the Secretary/Defencedid
not have the shadow of a power to do so.
It now remains to consider the point designated (b) above viz. whether the Public ServiceCommissioncouldgrantapproval
as, in fact, it had purported to do, and thereby impart efficacy or validity to the decision of therespondentplacingthe
petitioner on compulsory leave. It isworthrecapitulatingtheargumentoftheLearnedAdditionalSolicitor-General,
perhaps, the only argument that one could conceive of in the circumstances, rather perfunctorily made, he having not muchof
a choice or selection in the matter of arguments - the argument being that although theletterplacingthepetitioneron
compulsory leave was dated the 17th August 1998 it was, in fact, handed over to the petitioner on the 19th that is, twodays
later, by which date the Public Service Commission had granted approval to the decision of the respondent. Assuming thatthe
letter (R2) bears the correct date on which the Public service Commission had, in fact, granted its approval, the date onR2
being the 17th (August) itself, that being the date of the letter under the handoftherespondentaswellplacingthe
petitioner on compulsory leave, then the Public Service Commission must be heldtohavepurportedtograntapprovalon
17.08.98. It is clear from the averments at paragraph 7(d) and (e) oftheaffidavitfiledbytherespondent(Secretary
Defence), taking those averments at their face value, that the steps taken by therespondenttoplacethepetitioneron
compulsory leave by serving the letter marked P1 on the petitioner and seeking the approval of the Public ServiceCommission
were simultaneous, as stated in the respondent's own affidavitso that, assuming thatthePublicServiceCommissionhad
granted its approval on 17.08.98 itself to the decision of the respondent - yet that approval would, of necessity, havebeen
granted subsequent to the step that the respondent took (as averred in hisaffidavit)toplacepetitioneroncompulsory
leave.......and serve the letter marked P1 on the petitioner through the Inspector General of police because it was thestep
that the respondent took to place the petitioner on compulsory leave and the step that he took to seek theapprovalofthe
Public Service Commission that were simultaneous. And granting approval, by the PublicServiceCommissiontherefore,must
necessarily be subsequent (in point of time) to the seeking thereof.
The argument of the learned Additional Solicitor General is akin, if, in fact, it is notreallyandveritablyso,toan
argument that the Public Service Commission by grantingitsapprovalhadratifiedtheimpugneddecisionmadebythe
respondent. His argument seems to be that the ratification had rendered the decision valid, if, in fact, the decision ofthe
respondent to place the petitioner on compulsory leave, had been invalid at its inception.
The submissions made by the learned President's Counsel for the petitioner were, to say the least, sceptical of theveracity
of the averments in the affidavit filed by the respondent in court which averments were as follows : 7(d)thatinviewof
the directions received from Her Excellency the President and having considered the findings against the petitioner,Itook
steps to place the petitioner on compulsory leave and accordingly ItookstepstoservethelettermarkedP1onthe
petitioner through the Inspector General of Police. I annex herewith acopyofchapterIXofthesaidreportofthe
Commission marked R1 which contains the findings and recommendations of the said Commission
(e) that Simultaneously I sought the approval of the Public Service Commissionforplacingthepetitioneroncompulsory
leave which was granted on the same day as P1 viz. 17th August 1998.I annex herewith a copy of thesaidletterdated17th
August 1998 marked R2.
The learned President's Counsel for the petitioner made several pertinent observationswithregardtotheabovefactual
averments in the affidavit of the respondent, of course, keeping within thelimitsofgoodtaste,asishiswont.He
impressed upon us the improbability of seeking and obtaining the approval of the Public Service Commission onthesameday
as the 17th of August 1998 - that being the date of P1, that is, the letter addressed to the Petitioner, underthehandof
the respondent (Secretary Defence) conveying to the Petitioner the decision toplacehim(thepetitioner)oncompulsory
leave. The learned President's Counsel for the Petitioner also stressed the need for getting togetherofaquorumofthe
members of the Public Service Commission to make any decision, the convening of which would take time. Further,thelearned
President's Counsel for the petitioner made a point of the fact that althoughitwasaverredatparagraph7(e)ofthe
affidavit of the respondent that he (the Secretary Defence) sought the approval of the Public Service Commission on the17th
(August) itself-a copy of the letter whereby the respondent (Secretary Defence) stated that he sought such approvalhadnot
been produced in court making, as the learned President's Counsel argued, the said averments highlysuspect-thatis,those
averments as to seeking and obtaining the approval of the Public Service Commission on the same date (17.08.98) asthedate
on which he (the respondent - Secretary Defence) took steps to serve the letter marked P1 on the Petitioner.(Itistobe
recalled that P1 was the letter dated 17.08.98 under the hand of the Secretary Defence placing the petitioneroncompulsory
leave). Further, the learned President's Counsel for the petitioner submitted that the fact thattherespondent(Secretary
Defence) had nowhere in his letter P1 stated that he sought or would be seeking the approval or ratificationofthePublic
Service Commission immeasurably aided one to discover on which side the truth lay. The pointthatthelearnedPresident's
counsel made was that if, as stated in the respondent'saffidavitfiledintheCourtofAppealsubsequentlyi.e.on
simultaneously with taking steps to place the petitioner on compulsory leave. . . by serving thelettermarkedP1onthe
petitioner, the respondent would not have omitted to state that vital fact that he would be seeking orthathehadsought
the approval of the Public Service Commission, in letter P1 - as was also his duty to have done. But theabovepointsmade
by the learned President's Counsel for the Petitioner although they have a telling force, yet fail to establishconvincingly
the proposition that the respondent (Secretary Defence)didnotseekandobtaintheapprovalofthePublicService
Commission on 17.08.1998 itself which was the date of P1 above referred to - because, sometimes, the truth isstrangerthan
fiction. As stated above, it is wholly irrelevant to consider as towhenorhowsoonafterthedecisionmadebythe
respondent to place the petitioner on compulsory leave, that the Public Service Commission purportedtograntapprovalor
ratify the decision of the respondent because the Public Service Commissionwasaswhollydestituteofpowertogrant
approval or ratify the decision of the respondent as the respondent was destitute of authority to make the decision toplace
the petitioner on compulsory leave - thereby resulting in theactofratificationonthepartofthePublicService
Commission being as blatant a nullity as the act or decision of the respondent was in placing thepetitioneroncompulsory
leave - as the sequel would further serve to show.
The true and correct constitutional position, as at present, against the background or in the light of which the validityof
the decisions or the acts of both the respondent and the Public Service Commission havetobetestedisasfollows:as
explained above as well, in terms of article 55(1) of the constitution the appointment, transfer dismissalanddisciplinary
control of the Public officers is vested in the cabinet of ministers. However intermsofarticle55(3)thecabinetof
ministers may delegate its powers (referred to above) to the PublicserviceCommissionashadbeenadmittedlydonein
respect of the petitioner or rather in respect of the category of publicofficersofwhomthepetitionerisone(such
officer). The Public Service Commission pursuant to article 58(1) however, may delegate to apublicofficertheaforesaid
powers in respect of public officers reposed in it or delegated to it by the cabinet. But, admittedlythepowersdelegated
to the Public Service Commission in respect of the petitioner, had not been sub-delegated (by the Public ServiceCommission)
in turn to any officer or to the respondent. So that as at the relevant date i.e. 17th August 1998, that beingthedateon
which the petitioner was placed on compulsory leave, the power to take disciplinary action by way of placingthepetitioner
on compulsory leave was solely and exclusively vested in the Public Service Commission and in no other body or person -thus
making this case a straight - forward one: the decision of the respondent is void ab initio i.e. void from thebeginningas
if it never existed because the respondent (Secretary-Defence) had no legal authority to make the decision and therefore,in
law, it does not existand legally it never had existed. Not only is the decision of the respondent a nullity butalsothe
professed or ostensible ratification of the said decision by the Public Service Commission by purportingtograntapproval
is also a nullity. It is worth recalling the solitary argument put forward on behalf the respondent viz. that asthePublic
Service Commission had granted its approval to the decision made by the respondent by the date that theletterP1was,in
fact, served on the petitioner - the Public Service Commission must be deemed, if not, held tohaveratifiedtheimpugned
decision made by the respondent. At any rate, the Public Service Commission could not, in law, grant approval andsoratify
or impart validity and efficacy to the decision of the respondent, reasons being at least four-fold:
(i) it is an inflexible and deep-rooted principle of law, which is aselementaryasitiswell-known,thatnoactor
decision which is void at its inception, as is the decision of the respondent, can ever be ratified vide Halsbury'sLawsof
England (4th edition-vol..01) page 452. In Brook vs. Hook(5) Kelly C. B. said thus
: ............that although a voidable act may be ratified by matter
subsequent it is otherwise when an act is originally and in its inception void,
(ii) another principle which is as basic as it is rudimentary is embedded in the maxim: delegatus non potestdelegarewhich
means that a statutory power must be exercised only by the body or officer in whom it hasbeenreposedorconfided-unless
sub delegation of the power is authorized by express words or necessary implication. This principle hasbeenrecognizedto
some extent, if not wholly, in article 58(1) of our constitution in the following terms: ThePublicServiceCommissionor
any committee thereof may delegate to a public officer, subject to such conditions as may be prescribedbythecabinetof
Ministers, its powers of appointment, transfer, dismissal or disciplinary control of any category of public officers.
In as much as the Public Service Commission cansub-delegateitspowersonlysubjecttosuchconditionsordainedor
prescribed by the cabinet of Ministers it follows logically and by necessary implication that the PublicServiceCommission
can approve or ratify also only subject to such conditions as may be prescribed by the cabinet becauseratificationbythe
delegate, in this instance, the Public Service Commission, may be said to be a concomitant of the power tosub-delegate.In
other words, as admittedly, there is no sub-delegation of its powers by the Public Service Commission totherespondentin
terms of Article 58(1) of the constitution in the manner contemplated thereby-the Public Service Commission must be heldnot
to have been authorized by the constitution to ratify the decisions of the respondent as the Public Service Commissioncould
have ratified also only in regard to matters within the area of authority delegated to the respondentintermsofarticle
58(1) of the constitution, if, in fact, there had been such a sub-delegation (with the concurrence of thecabinet).Butas
there is, admittedly, no such express sub-delegation to the respondent of the powers of appointment and so on inrespectof
the petitioner in terms of article 58(1) of the constitution there cannot be any legal ratificationbythePublicService
Commission of the decision in question - as the power to ratify is subsumed indelegationorsubdelegationofauthority.
Delegation or sub-delegation (of authority) means granting precedentauthorityorgrantingauthoritybeforehandwhereas
ratification also means, in a way, granting authority subsequent to the event.Thus,ratification(being,sotosay,a
species of delegation) is subject to the same rule as delegation viz. delegatus nonpotestdelegareandintheadmitted
absence of an express subdelegation in terms of article 58(1) of the constitution the PublicServiceCommissioncouldnot
have legally approved the decision of the respondent with a view to conferring or in an attempt to confer validity thereon
(iii) as a legal principle one cannot act or decide on his own account, as the respondent (Secretary Defence)hadobviously
done in this instance, when in fact, one is devoid of power to so act or decide and seek to validatethatactordecision
thereafter, under the colour of the concept of ratification. The respondent (Secretary/Defence) hadnotinhisletterP1
(placing the petitioner on compulsory leave) indicated that he was acting on behalf of thePublicServiceCommission,nor
had he even stated therein, that is in P1, that he would be seeking ratification or approval of his decision from thePublic
Service Commission. The respondent had clearly acted on his own responsibility. The terms of the letter P1 under the handof
the respondent place it beyond any controversy that he (the Secretary/Defence) had purportedtoactforhimselfandnot
professed to act on behalf the Public Service Commission.ThereisnotthefaintestreferencetothePublicService
Commission in P1 whereby the respondent purported to place the petitioner on compulsory leave. It isnotpossibletocite
any judgments from the area of Public or Constitutional Law to illustrate the general propositionoflawenunciatedabove
because the concept of ratification belongs almost exclusively (of course, not wholly) to the sphere of the lawofcontract
and agency. As such, I consider, it not wholly inappropriate to refer to a case from the field of contracts to exemplifythe
rule that an act that a person or body had done on his own account without power to do so cannot belaterratifiedbythe
another person even if that person be the proper authority. Judicial bench - mark was set on thissubjectinKeighleyvs.
Maxsted(6) A corn merchant was authorized to buy wheat at a certain price on a joint account for himself and theappellants.
Acting in excess of his authority he purchased wheat at a higher pricefromtherespondentsbutinhisownname.The
appellants next day ratified the transaction but later failed to take deliveryofthewheat.Therespondentbroughtan
action against them for breach.
The action failed. The corn merchant had contracted inhisownnamewithoutmentioningthattheappellantswerehis
principals. Any purported ratification by them was therefore ineffective and they were, consequently, under no obligationto
the respondents. It is worthrepeatinginthiscontextthattheletter,iftherebeone,wherebytherespondent
(Secretary/defence) claims to have sought the approval of the Public Service Commission had not been tendered tothiscourt
to this day. That the rule that it is not possible for an undisclosed principal, that is, a principal whoisnotdisclosed
by the agent to the third party at the relevant time to step in later and ratify the acts of theagentisaprincipleof
universal application and therefore, is just as much a recognised principleinthefieldofAdministrativeLawasit,
undoubtedly, is in the field of contracts
(iv) in an any event the Public service Commission entrusted, as it waswithpowersofthecabinetinrespectofthe
category of officers to which the petitioner belonged, could not have mechanically granted approval to placethepetitioner
on compulsory leave, to use the very words in the letter P1 signed by Secretary to thePublicServiceCommission:onthe
recommendation of the respondent. The Public Service Commission, as evidenced by its ownlettergrantingapprovaltothe
decision of the respondent, had evidently acted under dictation of the respondent which it couldnothavedone.Toquote
from Halsbury's Laws of England (4th edition) Vol 01 - page 33: A body entrusted with astatutorydiscretionmustaddress
itself independently to the matter for consideration. It cannot lawfully accept instructions from or mechanicallyadoptthe
view of another body as to the manner of exercising its jurisdiction in a particular case unless thatotherbodyhasbeen
expressly empowered to issue such directions or unlessthedecidingbodyorofficerisasubordinateelementinan
administrative hierarchy within which instructions from above may properly be given on the question at issue.
There is a wrongful failure on the part of the Public Service Commission to exercise itsdiscretionanditsownjudgment
because it had improperly parted with its own powers byacceptingtherecommendationordictationfromtherespondent
(Secretary/Defence). The Public Service Commission is not the alter ego of the Secretary/Defence although it had acted asif
it were. And if there is one body from which the Public Service Commissioncouldhavelawfullyacceptedinstructionsor
recommendation - perhaps, it was none other than the Cabinet of Ministers itself - for, in general, delegation of powerdoes
not imply parting with authority. The delegating body, in this instance, the Cabinet of Ministers will retainnotonlythe
power to revoke the grant or delegation but also the power to act concurrentlyonmatterswithintheareaofdelegated
In this context, it would be apposite to reproduce the relevant letter dated 17.08.1998 addressedbytheSecretaryPublic
Service Commission, to the respondent (Secretary/Defence) which is as follow:
Compulsory Leave - Officers of the Police Department
This refers to Your letter dated 17.08.1998
02. Public Service Commission has granted approval for placing the following officers on compulsory leave AS RECOMMENDED BY
YOU. (emphasis is mine)
1.Mr. M. M. Gunaratne- Senior D.I.G.
2. ............................... - A.S.P.
3. ............................... - A.S.P.
4. ............................... - A.S.P.
5. ............................... - Chief Inspector
S. D. Piyadasa,
Public Service Commission
The above letter has been reproduced in extenso to show that the members of the Public Service Commission hadnotexercised
their own (personal) judgment even in the matter of deciding whether tograntapprovalornottothedecisionofthe
Secretary/Defence to place the petitioner on compulsory leave - let alone decide, (by the exerciseoftheirownjudgment)
whether the petitioner ought to be placed on compulsory leave or not for as amply manifested by the terms of itsownletter
the Public Service Commission had granted approval or had agreed, willynilly, to place the petitioner on compulsory leaveas
recommended by the Secretary/Defence. What does granted approval as ............. recommended by you mean? Itmeansexactly
what it says. Approval had also been granted on the recommendation of the respondent (Secretary/Defence). Inaway,itis
nothing short of the respondent approving his own decision because the one and onlyfactorthathadpromptedthePublic
Service Commission to grant approval to the decision of the respondent to place the petitioner on compulsoryleavewasthe
respondent's own recommendation.ItismanifestthatthePublicServiceCommissionhadresignedlysubstitutedthe
respondent's recommendation for their own judgment thus ousting its own (judgment).
I think we have now arrived at almost the end of our discussion of the matters relevant to the issues arisingfordecision.
The clock has to be put back to how things were before the void decision was madetoplacethepetitioneroncompulsory
leave. Perhaps, the going back of the clock will be automatic-working of itself.
The facts above stated would show that decision of the respondent is as void as the purported ratification thereofbymeans
of granting approval by the Public Service Commission and the decision of the respondentcontinuestobeanullity.The
purported ratification by means of granting approval had not improved matters fromthestandpointoftherespondent.If
there is anything that matches the decision of the respondent, to place the petitioneroncompulsoryleave,inpointof
nullity, it is the decision or act of- the Public Service Commission in granting approvaltotheformerdecisionthereby
seeking to validate it by ratification.
The decision of the respondent (Secretary/Defence) being vitiated, as it is by a jurisdictional error, thatis,adecision
that had been made in the exercise of a power or jurisdiction which the (Secretary/Defence)clearlydidnotpossess-the
decision had been legally void from the beginning. The impact andtherelevanceofjurisdictionalandno-jurisdictional
error had been explained in the Text Book on Administrative Law by Peter Leyland, Terry Woods, and Janetta Harden -allthree
writers being lecturers in the University of North London. To Quote from Page 309:thedistinctionbetweenjurisdictional
and non-jurisdictional error is particularly relevant to the applicability of certiorari because itisaremedywhichis
retrospective in its effect. That is, it quashes a decision that has already beenmadeandthereforewillhavemarkedly
different impact for matters going to the Jurisdiction. When a jurisdictional error is deemed to have occured, it meansthat
the decision has always been legally void: it is as if that decision had never been reached inthefirstplaceandnever
existed. A grant of Certiorari in these circumstances seeks to puttheclock-backtohowthingswerebeforethevoid
decision was made. In contrast, for error made within the jurisdiction, an error on the face of the recorddoesnotresult
in a fundamental illegality and thus a challenge will only overturn thedecisionandtakeeffectfromthemomentthat
certiorari is issued.
I have explained the above aspect viz. the effect of what, in law, is termed a jurisdictional error inordertopointout
and lay emphasis on the fact that the petitioner ought to be treated asonewhohadbeenintheservice,withoutany
interregnum or break, (notwithstanding the respondent's purporting to place him on compulsory leave as from 17.08.1998) -so
far as his rights as a Public Officer are concerned - because the errorthathadaffectedtherespondent'sdecisionis
patently a jurisdictional one.
As a final note, I wish to state that the decision takers should be keenly aware of their responsibilities. Thatwouldlead
to a more considered exercise of the powers at their disposal. Proper observance of the law on their part shouldundoubtedly
affect the quality of decision making for the better - thereby avoiding the need forinterventionbythecourts,however
soothing and beneficial - in the generality of cases - such wise and benevolent intervention would be. And,inthiscase,
the court, has of necessity, to intervene, more so, because:
"Thrice is he arm'd that hath his quarrel just
And be he naked, thought lock'd up in steel,
whose conscience with injustice is corrupted."
I was not all that certain as to whether prohibition could be granted in the circumstances of this case. At first, Ithought
that granting a writ of prohibition at this stage would bear an analogy with locking thestabledoorafterthehorseis
stolen. Because I felt that prohibition operates in a different fashion to certiorari the object of grantingaprohibition,
in my view, being to prevent the illegal action occurring in the first place. Butuponfurtherreflectionfeltthatthe
respondent could still persist in seeking to execute his decision although the decision was void - and, as such, feltalmost
instinctively that prohibition could rightly be granted. Strangely enough, later I found anauthorityforthiscourseof
action in (1937) AC 898 which in this context would serve a dual purpose of not only showing that certiorari andprohibition
can keep their motion in one sphere and can go hand in hand but also that we decide rightly as un-wittingly as wedodecide
wrongly - for it is sheer chance that brought the above authority in my way to accord withmyintuition.Wadepointsout
that where prohibition was applied for to prevent the enforcement of an ultra-vires decision, as happened in thecasecited
above the effect is the same as if certiorari hadbeengrantedtoquashit forthecourtnecessarilydeclaresits
invalidity before prohibiting its enforcement.
For the aforesaid reasons I do hereby make order granting the Writ of Certiorari formally quashing the decision madebythe
respondent on 17.08.1998 purporting to place the petitioner on compulsoryleavebecausethedecisionoftherespondent
represents or typifies an illustrative and vivid example of a naked usurpation of thepowerthatonlythePubicService
Commission and/or perhaps, the Cabinet of Ministers alone could have lawfully exercisedinaddition,prohibitionisalso
granted forbidding the respondent from further execution of the impugned decision dated 17.08.1998 made by him.
Writ of Certiorari/Writ of Prohibition granted.