Do government officials have discretionary power in decision-making?

 FR / 674 / 97 is a very important Supreme Court judgment on fundamental rights that all government officials who take decisions should read and understand. This is related to a disciplinary order. First of all, I would like to mention that I am submitting this post in connection with that judgment. The decision of this case has been given by the Honorable Supreme Court Judges Mark Fernando, Weerasekera and Ismail. Here the petitioner is working under the disciplinary authority of the Secretary of the Ministry of Justice A clerk named AK Nandadasa. There are 15 respondents here. The 1st respondent was then Secretary of the Ministry of Justice. Mr. MS Jayasinghe. 

3rd Disciplinary Investigation Officer S . Mr. Pathirage. The 5th is the Attorney General. The 6th is Mr. Tissa Devendra, the then Chairman of the Public Service Commission. The 15th is Mrs. HDL Gunawardena, the secretary of that commission. Apart from this, the other members of the commission and several other government officials have been named as the other respondents. The relevant disciplinary order has been issued under the 2nd category that existed before the issuance of the 2nd category of the currently used Institutions Code. 

 I will briefly mention the incident. Nandadasa, who was a clerk in the Matugama District Court, testifies in the court about the implementation of a prohibition order related to a case heard there. That testimony was not favorable to the complainant Siripala. Then at the Matugama bus station, Siripala threatens Nandadasa that he has given a false testimony and that he will file a complaint that he took a bribe of Rs.200/= to perform his duties. 

But he does not make such a complaint to the court or the Bribery Commissioner or any other authority at that time. Three months later, Siripala submitted a written complaint about this at the presidential mobile service held in Matugama. As a result, the Bribery Commissioner conducts an investigation and files a bribery case against Nandadasa in the Colombo Magistrate's Court. There are two charges against him. The charges are listed below.

 

 1. 1991 in the performance of his duties as a government officer. 07. Taking a bribe on 22nd and receiving Rs.200/= from Siripala. 2. Committing an offense punishable under Sections 19 B and 19 C respectively of the Bribery Act. Then in 1993 by the Secretary of the Department of Justice. 11. On the 8th, as per the provisions of Chapter 48, Category 2 of the Institutions Code, Nandadasa will be suspended without pay. Accused Nandadasa was found guilty of charge No. 1 and acquitted of the other charge in 1994. 08. The Magistrate's Court will decide on the 25th. Then the Court of Appeals, which heard an appeal presented by Nandadasa, acquitted Nandadasa of charge No. 

1. 1995 on a request made by him to reinstate himself. 11. In a letter dated 24th, the Secretary of the Ministry of Justice acts to establish Nandadasa in the service. But Nandadasa is subject to a condition that his salary arrears will be paid after the completion of the disciplinary investigation against him. Conducting such a disciplinary inquiry is in accordance with the Code of Conduct. Accordingly, 1996. 

03. On the 19th, a charge sheet under Schedule 1 with four charges is issued by the said secretary to Nandadasa. The 3rd question respondent S Pathirage has acted as its disciplinary investigation officer. Nandadasa does not get to know his decision. But based on the facts revealed in the disciplinary investigation, the accused officer Nandadasa was found guilty of all the charges, and accordingly, he was sentenced to two punishments in 1997. 05. On the 27th, Nandadasa is informed by a letter. Those punishments are suspension and warning without payment of arrears related to the suspension period.

 

Against this disciplinary order, Nandadasa submits a fundamental rights petition to the Supreme Court. For that, after giving leave to proceed opportunity, the Honorable Court advises Nandadasa to submit an appeal to the Public Service Commission. The period of three months to submit such an appeal has already expired. But according to the court order, Nandadasa to Rasekosa in 1998. 08. The appeal will be submitted on the 26th. 1998. 10. On the 15th, Rasekosa sent a reply letter to Nandadasa informing him of the deficiencies in the appeal. Most of those matters are technical matters of little importance. 1999 after about a year. 09. On the 8th, the 15th respondent, Rasekosa secretary informed the decision in writing to the appellant Nandadasa. Accordingly, the penalty of non-payment of arrears related to the suspension period is confirmed again. 

 

In addition to that, the penalty of warning is removed and instead a penalty of two salary increments is imposed. Nandadasa is not informed of the reasons for this punishment. Accordingly, Rasekosa authorities are also submitting an amended petition to the Supreme Court. Respondents present their answers to it. It is there that it is revealed to the honorable court how unfairly and arbitrarily the Secretary of the Ministry of Justice and Rasekosa have taken decisions about Nandadasa and punished him. According to the report submitted by the Disciplinary Investigation Officer Pathirage, it was decided that Nandadasa was not guilty of all the charges, but according to the facts revealed in the disciplinary investigation, the Ministry of Justice Lekam has informed that Nandadasa will be punished. He has also said that he made the decision based on the evidence given by the witnesses in the Magistrate's Court. The case records of both courts are not evidentiary documents in the disciplinary investigation. Those two witnesses who testified there did not testify in the disciplinary investigation. The secretary has not respected the principles of natural justice. Rasekosa has based his decision on the facts said by the secretary. None of the other important points have been presented in reply. The judgment states that the accused has the right to know the decisions of the disciplinary investigation conducted against him and the related reasons, and to know the reasons if the disciplinary authority took a different decision. I am quoting the final order of this judgment below. ORDER I hold that the petitioner's fundamental right under article 12 (1) had been violated by the 1st respondent as well as the Public Service Commission, and quash the orders communicated to the petitioner by letters dated 27. 5. 97 and 8. 9. 99 . The petitioner will be entitled to (a) the salary withheld during the period of interdiction, together with simple interest at 15% p. a. from 27 . 5. 97 up to date of payment; (b) compensation in a sum of Rs 100,000 payable by the State; and (c) costs in a sum of Rs 10,000 payable personally by the 1 st respondent. sgd / (Fernando) J I agree sgd / ( Weerasekera ) J I agree sgd / ( Ismail ) J All the facts contained in this 11-page judgment are not included here. My aim is to inform all government officials who make decisions about it and motivate them to study it. However, I will finally say that this judgment helps to understand that the decision-making government officials do not have discretionary power, and that they should act in accordance with the relevant laws and rules and the principles of natural justice.