Gunaratna v Nandawathie (Somawansa, J.)
JUDICIAL SERVICE COMMISSIONCOURT OF APPEALSRIPAVAN, J.
C.A. 652/2003JUNE 8, 2003
Writ of Certiorari – Judicial Service Commission – Constitution Articles 111 (K),112(g) – 17th Amendment – Committee appointed by J.S.C. to inquire intocharges against a Judicial Officer – Is the petitioner entitled to a copy of thereasons ? – Long delay – Mala fides – should it be pleaded and enumeratedin detail ?
The petilioner's explanation that he went before the Human RightsCommission to obtain redress for the violation of his fundamental rightsis not an excuse for instituting the application after 2 years and 4months of making the Order challenged. The court has a discretion todeny the petitioner relief, having regard to his conduct and laches whichstand against the grant of discretionary remedy.
The petitioner is not entitled to a copy of the reasons, in terms of Rule18.
Court will not in general entertain allegations of bad faith made againstthe repository of a power, unless bad faith has been expressly pleadedand properly enumerated in detail.
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The members of the Judicial Service Commission are immune fromlegal proceedings.
APPLICATION for a Writ of Certiorari.
Cases referred to :
Jayaweera v Asst. Commissioner of Agrarian Services 1996 2 SRI LR70.
President of Malalgodapitiya Co-operative Society v Arbitrator of Co-operative Societies 51 NLR 167.
Gunasekera v Weerakoon 73 NLR 262.
Ratnayake v Jayasinghe 78 NLR 35.
Gunasinghe v Hon. Gamini Dissanayake 1994 2 SRI LR.
Elmo Perera for petitioner.
Uditha Egalahewa S.C. for 9th respondent (Attorney-General).
Cur. adv. vult
July 17, 2003.
SRIPAVAN, J.The petitioner joined the Judicial Service on 1 st November 198801
and served in various stations as Magistrate, Additional Magistrate,Additional District Judge and District Judge until dismissed fromservice with effect from 7th November 2000. The petitioner seeks awrit of certiorari to quash the impugned order dated 7th November2000 marked P18 and a writ of mandamus to direct the first respon-dent Commission to reinstate the petitioner in service.
The petitioner filed this application on 8th April 2003. Learnedcounsel for the petitioner submitted that the delay in invoking thewrit jurisdiction of this court was due to the fact that the petitioner 10made a complaint to the Human Rights Commission on the basisthat the purported dismissal violated the petitioner's human rights.
As averred in paragraph 34 of the petition, learned Counsel urgedthat the proceedings before the Human Rights Commission cameto a standstill on 21st January 2002. The proceedings before theHuman Rights Commission is fundamentally different from the pro-ceedings before this court. The petitioner instituted actions in twodifferent fora seeking two different reliefs on the same set of facts.Hence, the petitioner's explanation that he went before the Human
Bandaranayake v Judicial Service Commission(Sripavan. J)
Rights Commission to obtain redress for the violation of his funda-mental right is not an excuse for instituting this application after twoyears and four months of making the order challenged. Even if onegoes by the date on which the proceedings before the saidCommission came to a halt, there is a delay of almost fourteenmonths which has not been satisfactorily explained. This court hasa discretion to deny the petitioner relief, having regard to his con-duct and laches which stand against the grant of discretionary rem-edy. [ Vide Jayaweera v Assistant Commissioner of AgrarianService^) President of Malalgodapitiya Co-operative Society vArbitrator of Co-operative Societies<2) Gunasekera v Weerakoorf3)Ratnayake v Jayasinghef4>]
On a direction issued by court, the learned State Counsel ten-dered the rules made by the Judicial Service Commission in termsof Article 112 (8) of the Constitution and the file relating to the find-ings of the inquiry of the petitioner. Rules 18 and 20(c) provide,inter alia as follows :
"Copies of reports or reasons for findings relating to the inquiryor of confidential office orders or minutes, will not, however beissued."
"If the officer replies to the charges, the Secretary will placethe charges and the reply before the Commission. If theCommission is not satisfied with the explanation or if the offi-cer has failed to reply to the charges, the Commission willeither inquire into the matter itself or will appoint a committeeof such persons as it shall specify, not less than three in num-ber to inquire into the matter."
Perusal of the inquiry file relating to the petitioner shows that thefirst respondent Commission appointed a committee consisting ofthe third, fourth and fifth respondents to inquire into the chargesagainst the petitioner. By a majority decision of the committee, thepetitioner was found guilty of all three charges referred to in P6.The first respondent Commission having considered the findings ofthe committee and the previous conduct of the petitioner as a judi-cial officer, decided to dismiss him from service and directed thetenth respondent to serve the order of dismissal marked P18 set-ting out the circumstances under which the first respondent
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Commission came to the conclusion. It would appear that the peti-tioner was represented by a President's Counsel at the aforesaidinquiry. It also appears from the letter dated 3rd February 2003marked P23 that the proceedings of inquiry were furnished to thepetitioner at the time the said inquiry was held.
The allegation contained in paragraph 46 of the petition that thefirst respondent Commission deliberately, unreasonably and mali-ciously refused to issue to the petitioner certified copies of theinquiry is factually incorrect in view of the contents of P23. The peti-tioner is not entitled for a copy of the reasons for findings relatingto the inquiry in terms of the express provision contained in Rule18. Learned Counsel also urged bad faith on the part of the firstrespondent Commission. "The plea of mala tides is raised often butit is only rarely it can be substantiated to the satisfaction of Court.Merely raising doubt is not enough. There should be somethingspecific, direct and precise to sustain the plea of mala tides. Theburden of proving mala tides is on the individual making allegationas the order is regular on its face and there is a presumption infavour of the administration that it exercises its power in good faithand for the public benefit." Principles of Administrative Law (Jain &Jain, 4th Edition 1988 Page 564) Accordingly, the court will not ingeneral entertain allegations of bad faith made against the reposi-tory of a power, unless bad faith has been expressly pleaded andproperly enumerated in detail. [Vide Gunasinghe v Hon GaminiDissanayake^] The petition however did not set out in detail theallegations of mala tide against the first respondent Commission.Thus, in terms of Article 111K of the 17th amendment to theConstitution, the members of the first respondent Commission areimmune from legal proceedings. The petitioner has failed to estab-lish want or excess of jurisdiction on the part of the first respondent,denial of natural justice or error of law on the face of record whichare generally considered as grounds on which the writ lies.Accordingly, this court does not see any legal basis on which thedecision contained in P18 could be interfered with.
For the reasons stated, I am not inclined to issue notice on therespondents. Notice on the respondents is accordingly refused.
BANDARANAYAKE v. JUDICIAL SERVICE COMMISSION