DHARMAKEERTHI

Vs.

GOVERNOR, SABARAGAMUWA PROVINCE AND OTHERS

COURT OF APPEAL
OBEYESEKERE, J. (P/CA)
COREA, J.
CA/WRIT/39/2021
MARCH 16, 25, 2021

Writs of certiorari and prohibition-Urban Councils Ordinance, section 184-Provincial Councils (Consequential Provisions) Act, No. 12 of 1989, section 2-Suspension of Chairman of Urban Council Reasonableness

The petitioner was the Chairman of the Embilipitiya Urban Council. He was suspended by the Governor of the province pending an inquiry against him in terms of section 184(1A) of the Urban Councils Ordinance read with section 2 of the Provincial Councils (Consequential Provisions) Act, No. 12 of 1989. He was thereafter served with a charge sheet containing eight charges to be inquired into by the 5th respondent inquiring officer. The petitioner sought to challenge by way of writs of certiorari and prohibition the decisions to suspend him, to hold an inquiry and to serve him with a charge sheet.

Held:

1. The decision to appoint an inquiring officer and the decision to suspend the petitioner must not only be reasonable but should be arrived at carefully, for the reason that such decisions may involve hardship and cast a slur on the good name of the petitioner.

2. An elected member must not be at the mercy of a Minister who may be from a rival political party and suspension cannot be on trumped up charges. On the other hand, it is important that elected officials maintain the highest standards of financial discipline and integrity when dealing with public finance since they are the trustees of the people.

3. The petitioner has produced several documents and offered lengthy explanations as to why the charges against him have no basis. It is not the function of this court to play the role of the inquiring officer and evaluate the evidence that has been produced by the petitioner in order to determine if the petitioner should be exonerated from the charges that have been framed against him. The petitioner may present all this evidence before the 5th respondent at the inquiry that is due to be held.

4. The documents produced by the 1st respondent Governor illustrate that there are allegations against the petitioner to be gone into at an inquiry with the participation of the petitioner. Therefore, the decision of the 1st respondent to initiate an inquiry by appointing the 5th respondent is a decision taken by a sensible authority acting with due appreciation of its responsibilities.

5. An exceptional situation has arisen where the Chairman of the Council has allegedly acted in violation of the law, which called for swift action to prevent the administration of the Council from going down a slippery slope. The deteriorating situation had to be arrested which is what the 1st respondent did by suspending the petitioner. In these circumstances, the 1st respondent's decision to suspend the petitioner is reasonable.

Cases referred to:

1. Council of Civil Service Unions v. Minister for the Civil Service (GCHQ case) [1985] AC 374

2. Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014
3. Colonel U.R. Abeyratne v. Lt. Gen. N.U.M.M.W. Senanayake and others (CA/WRIT/239/2017, CA Minutes of 07.02.2020)
4. KIA Motors (Lanka) Ltd v. Consumer Affairs Authority (CA/WRIT/72/2013, CA Minutes of 26.05.2020)
5. U.A.A.J Ukwatte and another v. Minister of Education and others (CA/WRIT/403/2019, CA Minutes of 12.06.2020)
6. Yatawara v. Sarath Ekanayake and others (CA/WRIT/691/2009, CA Minutes of 01.02.2019)
7. Faleelv. Moonesinghe and others (SC/APPEAL/40/93,SC Minutes of 05.05.1994)
8. Mendis v. Berty Premalal Dissanayake and others [2006] 2 Sri LR 402

APPLICATION for Writs of Certiorari and Prohibition.

Faiszer Mustapha, P.C., with Pulasthi Rupasinghe, Tharaka Nanayakkara and Dananjaya Perera for the Petitioner.

Sumathi Dharmawardena, P.C., A.S.G., wi