v.MAHAWELI AUTHORITY OFSRI LANKA AND OTHERS
SUPREME COURTFERNANDO, J.
AMERASINGHE. J. ANDGUNASEKERA. J.
SC APPLICATION NO. 131/2000SEPTEMBER 11™. 2000
Fundamental Rights – Refusal to permit use ofpublic property for apoliticalpurpose – Punishment of an employee for such refusal – Article 12(1) of theConstitution.
The petitioner was an Assistant Security Supervisor employed bythe Mahaweli Authority of Sri Lanka working at the Resident ProjectManager’s Office at the Mahaweli “H" Division, Thambuttegama. On18. 01.99 when he was on night duty at the office at about 1 a.m., a busload of persons arrived. The evidence shows that they consisted of 16security officers and 11 members of the Embilipitiya branch of the SriLanka Nidahas Sevaka Sangamaya. They were on their way to attend apolitical meeting of the ruling party at Nikaweratiya in support of acandidate of that Party for the election of the North-Western ProvincialCouncil. Five of them including one Saliyananda an Assistant SecuritySupervisor and the driver of the bus met the petitioner and requested thepetitioner’s permission to stay the night at the said office. The petitionerrefused to grant such permission in the absence of any instructions fromhis superiors. They then demanded that they be allowed to use the officetelephone which was also refused. Thereafter they wanted to knowwhether they could stay at the Mahaweli circuit bungalow. The petitionertold them that permission had to be obtained from the Resident ProjectManager (RPM). and as he was on duty he could not accompany them tomeet the RPM.
A few days thereafter, Saliyananda and three other persons complainedagainst the petitioner to the effect that when they with others weretravelling from Embilipitiya to Thambuttegama in connection with anofficial duty of the Minister of Mahaweli Development the petitionerrefused to allow them accommodation at the Project Manager's Office, didnot permit the use of the telephone and refused to accompany them tothe circuit bungalow despite being told that they had come upon theMinister’s order. On the basis of a report made on that complaint by the6Ul respondent (Senior Security Officer in charge of Mahaweli “H“
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Division) and without informing the petitioner of the nature of themisconduct and without holding a disciplinary inquiry, despite a requestmade by the petitioner for an inquiry, the 3rd respondent (ExecutiveDirector, Mahaweli Authority of Sri Lanka) by his letter dated19. 01. 2000 fined the petitioner and transferred him.
(1) The complaints on which the respondents commenced disciplinaryproceedings did not contain any allegation of misconduct.
Per Fernando, J.
.. what was alleged to be a Ministerial duty was nothing more thanpolitical activities at Nikaweratiya in connection with a pendingelection in which the Minister was interested . . . The real grievancewhich they (the complaints) reveal is displeasure that the petitionerhad resisted an improper attempt to influence him to provideaccommodation at the office, despite Ministerial duty being invoked"
The respondent failed to comply with the disciplinary rules prior toimposing a punishment on the petitioner.
The petitioner’s fundamental right under Article 12(1) has beeninfringed.
Per Fernando, J.
"The use of State and Corporation resources (whether land,buildings, vehicles, equipment, funds or other facilities: or humanresources) directly or indirectly for the benefit of one politicalparty or group would constitute unequal treatment and politicaldiscrimination because thereby an advantage is conferred on one.political party or group which is denied to its rivals."
Case referred to :
Deshapria o. Rukmani (1999) 2 Sri L.R. 412, 418
APPLICATION for relief for infringement of fundamental rights.
Shyamal A. Collure for the petitioner.
Rajiv GoonatUeke. S.C. for the respondents.
Cur. adv. unit.
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September 15, 2000.
FERNANDO. J.The Petitioner is an (Assistant Security Supervisor)employed by the Mahaweli Authority of Sri Lanka, the lslRespondent, working at the Resident Project Manager's Officeat the Mahaweli “H” Division, Thambuttegama. He complainsthat his fundamental right under Article 12( 1) was infringed byorders made on 19. 01. 2000 and 07. 02. 2000, imposing a fineof three days' pay, and transferring him to Embilipitiya(without expenses as the transfer was on disciplinary grounds).
The' impugned orders were made in consequence of anincident which occurred in the early hours of the morning of19. 01. 99. There is no dispute as to the facts.
On 18. 01. 99 the Petitioner was on night duty at theOffice. At about 1.00 a.m. on 19. 01. 99 five persons came tothe Office: one Saliyananda, an Assistant Security Supervisorworking at Embilipitiya, three other employees of the 1SIRespondent, and one Hinnimahattaya, the driver of a busparked nearby in which there were about 25 others.
According to the Petitioner. Saliyananda informed him“that they were on their way to Nikaweratiya to participate ina political meeting of the ruling party scheduled to be held thefollowing day in support of the candidates of the said politicalparty contesting the Provincial Council Elections in the NorthWestern Province, and wanted the Petitioner’s permission forthem to stay the night in the said office.” He added that, exceptfor the said Hinnimahattaya, almost all the rest were heavilyintoxicated.
The Petitioner replied that he had not received anyinstructions from his superiors to allow them to stay in theOffice and that therefore they could not be permitted to do so.
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They then demanded that they be allowed to use the Officetelephone, but he explained that no outgoing calls could betaken at that time of the night. They then “wanted to knowwhether they could stay at the Mahaweli Circuit Bungalow towhich the Petitioner replied that. . . prior permission had tobe obtained from the Resident Project Manager… and advisedthem to speak to the caretaker …”
They then demanded that the Petitioner should come withthem to meet the Resident Project Manager, but he told themthat he could not as he was on duty; he showed the driver theway.
There was only one affidavit filed on behalf of theRespondents, and that was by the 2nd Respondent, theDirector-General of the 1st Respondent. He had no personalknowledge of that incident, and did not deny the Petitioner’saccount, merely stating that “the Respondents are unaware ofthe incident …”
Between 23. 01. 99 and 31. 01. 99 Saliyananda and threeother persons made complaints against the Petitioner, to theeffect that 16 security officers and 11 members of theEmbilipitiya branch of the Sri Lanka Nidahas SevakaSangamaya had been travelling from Embilipitiya toThambuttegama in connection with an official duty of theMinister of Mahaweli Development; that, needing overnightaccommodation, they came to the Project Manager’s Office;that they said that they had come in connection with anofficial function of the Minister and requested suitableaccommodation for the night. The Petitioner had replied thatthey could not stay at the Office, even if accommodation hadbeen available there; when they wanted to use the telephoneto contact the Resident Project Manager, he had said there wasno telephone; when they asked whether they could stay at theCircuit Bungalow, the Petitioner had said he did not know andto go there and find out; and when they asked him to
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accompany them, he refused. They expressed amazement thatdespite being told that they had come upon the Minister’sorder, their requests had been turned down.
By letter dated 26. 02. 99, the 5lh Respondent (theDirector Mahaweli Security Organization) forwarded to the 6thRespondent (the Senior Security Officer-in-charge, Mahaweli“H” Division) copies of the four complaints made to the 2ndRespondent, and requested him to submit a report in regardto those complaints to the 2nd Respondent. Upon the 6,hRespondent's request, the Petitioner appeared before himon 23. 03. 99.
The 6th Respondent submitted his report on 23. 03. 99. He •referred to the several complaints, but expressed no opinion asto whether they disclosed that a primafacie case of misconducthad been established; nor did he state that he had informedthe Petitioner of the misconduct alleged against him. Hereported that the Petitioner had refused to make a statementon the ground that as the matter involved an incident betweensecurity officers it should have been inquired into by a differentinquiry officer. The 6th Respondent did not state what order hehad made in respect of that submission, or that he hadoverruled the objection and called upon the Petitioner to makea statement. However, he concluded that the refusal to makea statement was in breach of the written order of the Directorof the Mahaweli Security Organization, and forwarded to thatofficer his report of the preliminary investigation.
By letter dated 03. 11. 99, signed by the 3rd Respondent(the Executive Director, Administration and Finance) onbehalf of the 2nd Respondent, the Petitioner was informed thatthe preliminary investigation had disclosed that when a groupof persons (including the Assistant Security Supervisor,Embilipitiya, and the Chairman of the Embilipitiya branchtrade union) had come in connection with an official duty ofthe Minister, the Petitioner had taken no steps to provideaccommodation or to assist them. It was stated that it was
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extremely unsatisfactory that he had treated those personswho had come on official duty in this manner. It was noted,further, that the Petitioner had refused to make a statement atthe preliminary investigation. Accordingly, he was asked toshow cause (within 14 days of receipt) why disciplinary actionshould not be taken against him.
Having received that letter on 11. 11. 99, on 23. 11. 99 thePetitioner replied to the 2nd Respondent, through the 6thRespondent (the Head of his section). There is clear evidencethat that letter had been received by the 6th Respondent, andforwarded. He pleaded that he was not guilty of the charges,and requested a disciplinary inquiry to enable him to establishhis innocence. Nevertheless, by letter dated 19. 01. 2000 the3rd Respondent claimed that the preliminary investigation hadestablished that on 19. 01. 99 the Petitioner had not providedaccommodation to persons who had come to the ResidentProject Manager’s Office in connection with official duty of theMinister, or taken steps to assist them to meet the ResidentProject Manager in order to obtain accommodation. This wasstated to be a breach of his duties. Further, he had not madea statement at the preliminary investigation; nor had hereplied to the letter dated 03. 11. 99. Accordingly, he wasfined and transferred. The Petitioner immediately protested,pointing out that he had submitted a reply, requestingan inquiry. The 3rd Respondent replied stating that the ordermade on 19. 01. 2000 could not be changed. He did not claimthat the Petitioner’s reply had not been received. The transferwas confirmed by letter dated 07. 02. 2000.
This application was supported on 05. 05. 2000 for leaveto proceed as well as interim relief. The State Counsel whoappeared on that occasion stated that the instructionshe had received from the 1st Respondent did not indicate whatthe official Ministerial duty referred to in the impugnedletter dated 19. 01. 2000 was, or that it was any part of thePetitioner’s functions, whilst on duty at the Office, to provideaccommodation facilities to anybody.
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However, in the affidavit which he later filed in theseproceedings the 2nd Respondent claimed that the Petitioner“has not extended his due obligation to the group of personnelwho came to the area on duty”, and that although he wasentrusted with security functions he was bound to extend hisco-operation to other employees of the Authority as and whenrequired.
The 2nd Respondent’s position is entirely untenable. As asecurity officer on night duty at the Office, the Petitioner wasnot empowered to provide accommodation to other employees,or to leave his post in order to take them to meet the ResidentProject Manager: and indeed not merely did the Petitioner haveno discretion in the matter, but it would have been a seriousbreach of duty to have done so. Learned State Counsel did notattempt to justify the impugned orders on that basis, butdepended solely on the Petitioner’s refusal to make astatement to the 6th Respondent.
Having regard to the pleadings and documents in thiscase, it is probable that what was alleged to be a Ministerialduty was nothing more than political activities at Nikaweratiyain connection with a pending election in which the Ministerwas interested. Learned State Counsel was unable to pointto any allegation in the four complaints made against thePetitioner which suggested the slightest lapse (let alonemisconduct), or lack of courtesy. The complaints themselvesdisclosed that the Petitioner acted perfectly correctly, andrightly refused to be overawed by references to the Minister orMinisterial duty. The real grievance which they reveal isdispleasure that the Petitioner had resisted an improperattempt to influence him to provide accommodation at theOffice, despite Ministerial duty being invoked.
I hold that the four complaints on which the Respondentscommenced disciplinary proceedings did not contain anyallegation of misconduct. The decision to commence such
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and Others (Fernando. J.)
proceedings was a gross abuse of power. Indeed, thecomplaints themselves showed that the Petitioner should havebeen commended for resisting improper attempts to departfrom the path of duty.
. Learned State Counsel strenuously argued that theimpugned orders were justified by reason of the Petitioner’srefusal to make a statement to the 6th .Respondent; thatthe proceedings held by the 6th Respondent constituted asummary inquiry (within the meaning of the 1st Respondent’sDisciplinary Rules); and that the 6th Respondent’s findingthereon was sufficient reason for transfer.
Those Rules provide for preliminary investigations forthe purpose of ascertaining whether there exists a primafaciecase of grave misconduct; summary inquiries in respect ofmisconduct; and formal inquiries in respect of gravemisconduct. Learned State Counsel’s submission that the 6thRespondent held a summary inquiry, is untenable. The 6thRespondent was not authorized to hold a summary inquiry, hewas only asked to submit a report on the complaints made tothe 2nd Respondent. It appears that he had gone beyond hismandate, and held a preliminary investigation, becausehis report itself as well as the letters dated 03. 11. 99 and19. 01. 2000 refer to his proceedings as a preliminaryinvestigation (although he failed to state in his report whetherthere was a prima facie case, and what the offence was).
Even if I were to accept the submission that the6th Respondent held a summary inquiry, that inquiry wasfundamentally flawed because he did not comply with theRules, which require that “the employee shall know the caseagainst him” – the nature of the misconduct alleged againsthim was not disclosed to the Petitioner. Besides, before thePetitioner could have been faulted for refusing to make astatement, the 6th Respondent should have ruled on thePetitioner’s preliminary objection.
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I hold that the Respondents failed to comply with theDisciplinary Rules prior to imposing a punishment on thePetitioner.
I hold that the Petitioner's Fundamental Right underArticle 12(1) has been infringed. In determining what reliefshould be granted, it is necessary to consider the context inwhich the infringement took place. The attempt to influencethe Petitioner to allow the misuse of Corporation premisesoccurred not just in general but in connection with a pendingelection. The use of State and Corporation resources (whetherland, buildings, vehicles, equipment, funds or other facilities,or human resources) directly or indirectly for the benefitof one political party or group, would constitute unequaltreatment and political discrimination because thereby anadvantage is conferred on one political party or group which isdenied to its rivals (see Deshapriya v. Rukmani,1". Penalizingthe Petitioner for resisting improper influence in suchcircumstances aggravated the infringement of hisfundamental right; and conveyed a wrong message, thatimproper political influence should not be resisted.
I therefore quash the impugned transfer orders dated19. 01. 2000 and 07. 02. 2000, and direct the 1st Respondentto pay him a sum of Rs. 100,000 as compensation. I furtherdirect the 2nd Respondent personally to pay him a sum ofRs. 25,000 as costs.
In his counter-affidavit the Petitioner claimed that 275employees of the 1st Respondent participated in the politicalmeeting, referred to in the conversation on 19. 01. 99, whichwas held at Nikaweratiya, and that meals were provided forthem at the expense of the 1st Respondent. Although thePetitioner had produced certain bills and vouchers in support,we did not permit learned Counsel for the Petitioner to relyon those allegations for the purposes of this case, as theRespondents had not had an opportunity of replying to them.
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and Others (Fernando, J.)
That allegation warrants investigation, and accordinglyI direct the Registrar to forward copies of this judgment andof the pleadings to the Auditor-General for inquiry as towhether there has been any misuse of the resources of the1st Respondent.
AMERASENGHE, J. 1 agree.
GUNASEKERA, J. -1 agree.
HETTIARACHCHI v. MAHAWELI AUTHORITY OF SRI LANKA AND OTHERS