H. M. Premawathie v. Fowzie, Minister of Health and Others 373
v.FOWZIE, MINISTER OF HEALTHAND OTHERS
SUPREME COURTFERNANDO, J.,
DHEERARATNE, J. ANDWIJETUNGA, J.
S.C. APPLICATION NO. 528/96SEPTEMBER 25TH, 1996
Fundamental Rights – Article 12 (1) of the Constitution – Settlement proposedby parties – Duty of court to make just and equitable order notwithstanding sucharrangement – Article 126 of the Constitution.
The petitioner who was a telephone operator in the Ministry of Health wasinterdicted on 14.10.94 and charged with several acts of misconduct. The inquiringofficer exonerated her of all the serious charges. However, on 31.7.95 the DirectorGeneral of Health Services held without adducing any reason, that all the chargeshad been proved and dismissed her from service. The Public Service Commissionrevoked the said decision and reinstated her in a demoted position as a labourerwithout back wages. After the judgment was reserved the respondents filed amotion agreeing to reinstate the petitioner as a telephone operator with effectfrom 9.10.96 with back wages from the date of interdiction.
Once the court grants leave to proceed, Article 126 imposes a duty tomake an order which is just and equitable and so the court cannot merelygive effect to a settlement proposed by the parties.
The petitioner is entitled to reinstatement with back wages as agreed butwith increments for 1994, 1995 and 1996 in addition to costs.
APPLICATION for relief for infringement of fundamental rights.
Sanjeewa Jayawardena for petitioner.
K. Sripavan DSG with S. Fernando, SC for respondents.
Cur. adv. vult.
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(1998) 2 Sri L ft
October 23. 1996FERNANDO, J.
Having joined the public service as a casual labourer in the Ministryof Health on 5.3.80, and having been made permanent on 1.10.85.the petitioner was appointed a telephone operator with effect from15.6.91, subject to a 3-year probationary period. While serving in thatcapacity at the General Hospital. Colombo, she received a letter dated29.6.92 issued by the Director of that Hospital, confirming her in thatpost with effect from 15.6.91. She was transferred to the Lady RidgewayChildren's Hospital on 17.9.93. She complains of the violation of herfundamental right under Article 12 (1) by reason of her demotion tothe post of labourer, and transfer to the Leprosy Hospital, Hendala.
On 8.10.94, she was on duty for the night shift, which was from4.00 p.m. that day till 8.00 a.m. on 9.10.94 – a period of sixteen hours,during which the practice was to have only one telephone operator.Just before midnight she received a call from someone who said hewas calling from the Health Minister's residence: and a little lateranother call from Dr. Jeganathan, Deputy Director-General of HealthServices. This was followed by a surprise visit at 1.15 a.m. by the3rd respondent, a Deputy Director of the Hospital. It is unnecessaryto refer to these events in more detail in view of the settlement whichthe parties suggested after judgment was reserved.
It is sufficient to say that on 14.10.94 the petitioner was interdictedon half-pay for allegedly sleeping whilst on duty on 8.10.94. She wasthen served with a charge-sheet dated 2.12.94 which alleged, insubstance, that she was rude to the Minister of Health and toDr. Jeganathan when they telephoned on 8.10.94; that she did notconnect them, as requested, to ward 10; that she was sleeping whilston duty during the shift; and that when Dr. Jeganathan asked to beconnected to a ward close to ward 10 (if ward No. 10 could not beconnected), the petitioner failed to connect him.
Although the petitioner became aware of it only after this applicationwas filed, it now transpires that the inquiring officer exonerated herof all those charges except the last and of two purely consequentialcharges of defaulting in her duties and bringing the public service intodisrepute. However, the 2nd respondent, the Director-General of Health
SC H. M. Premawathie v. Fowzie, Minister of Health and Others
Services, by letter dated 31.7.95 told her that he had decided, in termsof section 15.1 of Chapter XLVIII of the Establishments Code, thatall the charges had been proved. He neither told her of the inquiringofficer's verdict, nor of his reasons, if any, for not agreeing with it.He added that according to her personal file her past service recordwas extremely unsatisfactory, and that she had not improved despitewarnings, and dismissed her with effect from 14.10.94.
She appealed to the Public Service Commission (PSC). By letterdated 23.5.96, the 4th respondent informed her fhat the PSC had re-instated her in service, subject to a reduction in rank to her originalpost of labourer, and a transfer to the Leprosy Hospital at Hendala,without any back wages for the period of interdiction, the period whenshe was not in service being treated as leave without pay. The actualorder of the PSC, or even the basis on which it was made, was neverdisclosed to her. It now transpires that the PSC had revoked thedecision of the 2nd respondent and restored the findings of theinquiring officer. Learned counsel for the petitioner submitted thatreduction in rank was a major punishment, appropriate only for seriousmisconduct as defined in the Establishments Code; that in any eventit was grossly disproportionate to the petitioner's lapse, particularlyconsidering the enormous loss of back wages; and that it was thereforeunreasonable, arbitrary and capricious. He referred to a previousinstance in which another telephone operator, had admittedly beendealt with far more leniently.
In his affidavit the 3rd respondent disputed the letter of confirmationissued to the petitioner, querying its signatures and its issue after justone year. He alleged that "multiple complaints" had been receivedof inefficiency and lack of courtesy on her part. The learned DSGtendered photocopies of several documents from the petitioner's personalfile (which are now part of the record). From those we found thatthe petitioner's confirmation had been recommended and approvedin June, 1992, upon her work, conduct, health and efficiency beingassessed as satisfactory; that the file contained a copy of the letterof confirmation dated 29.6.92 produced by the petitioner; and that therewere no documents recording particulars of any complaints madeagainst her. It is not open to the respondents now to dispute herconfirmation, after the lapse of five years. It is possible that the factthat she had already served a probationary period upon herappointment as a labourer was taken into account, but be that as
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(1998) 2 Sri LR.
it may, her confirmation cannot be collaterally attacked in theseproceedings.
We also found that by letter dated 21.2.94 the petitioner had beenwarned for inefficiency and told that if there was no improvement,steps would be taken to demote her. By letter dated 10.10.94 shewas asked to show cause within three days why disciplinary actionshould not be taken against her for that (and the charges arising fromthe events of 8.10.94). By letter dated 11.10.94 she submitted herexplanation on all those matters. Significantly, the charge-sheet didnot include any allegation of inefficiency or failure to improve despitewarnings. Despite this, the 2nd respondent's letter of 31.7.95 referredto her alleged failure to improve her efficiency in spite of warnings:a finding made without a charge and without an opportunity to defendherself.
After full argument on 25.9.96, judgment was reserved. On 7.10.96counsel on both sides stated that they were negotiating a settlement.The respondents filed a motion dated 10.10.96 stating that:
"the petitioner has been reinstated to the post of telephoneoperator with effect from 9th October, 1996, in the General Hospital,Ragama, as mutually agreed upon between the parties … thepetitioner is entitled to the payment of back wages from the dateof her interdiction until the date of reinstatement in the RagamaHospital".
A copy of a letter dated 9.10.96 sent to the petitioner was alsotendered.
There is no doubt that the petitioner's fundamental right to the equalprotection of the law has been infringed by the PSC by reason ofan arbitrary, unreasonable and grossly disproportionate punishment:an enormous loss of back wages, continuing reduction in earningsfor the rest of her working life, and a probable decrease in her pensionbenefits thereafter – all for a single lapse occurring half-way througha sixteen-hour duty shift. Although the ultimately operative decisionwas that of the PSC, the 2nd and the 3rd respondents had also beenclosely involved in an oppressive use, or misuse, of disciplinary powersand proceedings leading up to that infringement. There was no reasonfor keeping the petitioner under interdiction for more than three months
SC H. M. Premawathie v. Fowzie, Minister of Health and Others
whilst that inquiry was pending. The terms of settlement do notadequately redress the wrong that has been done to her. Once thiscourt grants leave to proceed, Article 126 imposes a duty to makean order which is just and equitable, and so we cannot merely giveeffect to a settlement proposed by the parties. In this case the factswere fully probed during the hearing and pointed out the coursewhich justice and equity demanded. Being an equitable jurisdiction,the court cannot acquiesce in a compromise which disturbs itsconscience.
Here the victim has been deprived of her means of livelihood fora long period, with resulting anxiety, pain of mind, and suffering toherself and her family. The arrears of salary due to her are likely toamount to about Rs. 50,000 (on which interest would be considerable),and she has had to fight an injustice whilst being deprived of hersalary.
I must add that there has been no suggestion that the 1st, 4thand 5th respondents have been concerned in the infringement of thepetitioner's fundamental right.
We make order for re-instatement in terms of the motion dated10.10.96, with back wages (on the basis that the petitioner had beenduly confirmed on 29.6.92 with effect from 15.6.91), and with incre-ments for 1994, 1995 and 1996. The State is directed to pay her asum of Rs. 25,000 as compensation and costs.
DHEERARATNE, J. – I agree.
WIJETUNGA, J. – I agree.
PREMAWATHIE v. FOWZIE,MINISTER OF HEALTH AND OTHERS