SCMunasinghe v Vandergert223
DR. SHIRANI BANDARANAYAKE, J.
RAJA FERNANDO, J.
FR 333/2005SEPTEMBER 21, 2006JANUARY 8,11, 2007APRIL 4. 2007
Fundamental Rights violation – Retirement and deduction of pension – Article12(1) unreasonable unfair, irrational? – Establishment Code Clause 33.1 -Equality – Arbitrariness.
The petitioner alleged that, the decision to retire him from service, on account ofgeneral inefficiency and recommending that 1 % of his pension be deducted is inviolation of Article 12(1).
The respondents contends that, the petitioner had not shown progress of 100%in his performance although warned in writing in 1989, and the petitioner'sprogress during 1997-2000 was well below 100% and on three occasions hisincrements had been deferred.
When the petitioner's conduct and efficiency is considered in the light ofClause 33.1 E code it is apparent that the petitioner had made satisfactoryprogress in his work and conduct during 1997-2000. The petitioner's progresswhich had been 0% in 1997 had arisen up to 64% in 2000.
Taking into consideration the Survey-General’s letter along with the sequenceof events that took place, and the fact that the allegations set out, relate toincidents that had occurred more than 20 years ago at the time the petitionerwas a cadet clearly indicates that decision to retire the petitioner on the basisof inefficiency without following the provisions of Clause 33 of Chapter XLVIllof the E code and Circular 6/97 read with the directive issued is arbitrary andunfair.
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Per Dr. Shirani Bandaranayake, J.
“There is no doubt that it is necessary to confer authority on administrative officersto be used at their discretion. Nevertheless such discretionary authority cannot beabsolute or unfettered, as such would be arbitrary and discriminatory which wouldnegate the equal protection guaranteed in terms of Article 12(1)“.
Equality is a dynamic concept with many aspects and dimension and it cannotbe cribbed cabined and confined within the traditional and doctrinaire limits.From a positivistic point of view equality is antithetic to arbitrariness. In factequality and arbitrariness are sworn enemies – one belong to the rule of lawwhile the other to the whim and caprice of the absolute monarch.
APPLICATION under Article 126 of the Constitution.
Cases referred to:
Arkansas Gas C. v Railroad Commission 261 US 379.
Ameeroonissa v Mahboob 1953 SCR 404.
Padfield v Minister of Agriculture Fisheries and Food 1968 AC 997.
Breen v Amalgamated Engineering Union 1971 2 QB 175.
E.P Royappa v State of Tamil Nadu 1974 AIR SC 555.
Manekha Gandhi v Union of India AIR 1978 SC 597.
In International Airport Authority AIR 1579 SC 1628
Ajay Hasia v Khahi. Miyib AIR 1981 SC 487.
Faiz Musthapha PC with J. C. Weliamuna for petitioner.
Sanjay Rajaratnam for respondents.
August 3, 2007
DR. SHIRANI BANDARANAYAKE, J.The petitioner, a 47 years old Assistant Superintendent of Survey,alleged that by the decision to retire him from service with effect from
on account of general inefficiency and recommending that1 % of his pension be deducted, his fundamental rights guaranteed interms of Article 12(1) of the Constitution were violated for which thisCourt granted leave to proceed.
The petitioner's case, as submitted by him, albeit brief, is as follows:
The petitioner had joined the Surveyor-General's Department as anapprentice on 01.11.1978. After joining the said Department, he hadsuccessfully completed a Diploma in Survey Technicians Course by25.09.1983 (P2). Thereafter the petitioner was made permanent as aSurveyor – Class III by letter dated 10.10.1983 to be with effect from01.11.1978 (P3). Since then, the petitioner had received his promotionsand he had also completed the 'Survey Department Junior Examination'in 1988 (P6). Thereafter in 1991 he was promoted to Class III Grade I(P7).
SC Munasinghe v Vandergert (Dr. Shirani Bandaranayake, J.)225
In 1997 on annual transfers, the petitioner was released to theTitle Registration Pilot Project' in which he served until May 2001(P8). This project had required the use of modern equipment andfamiliarity with 'high tech devices' and precise digital measuringinstruments. Accordingly Field Staff Circular 24/92 was issuedrequiring the Staff to be trained in the use of such devices.However, the said training had not been provided (P9).
Due to the training facilities not being granted to the petitioner,he found it difficult to carry out the duties entrusted.to him under thePilot Project. The petitioner had requested the management onmany occasions for such training and even in the performanceappraisal form for the year 1998, it was reiterated that the petitionershould be provided with the training in modern technical equipment(P10). The petitioner had received three (3) letters withholding hisincrements for the period 1997 to 2000 on the basis that he isinefficient in his work (P11(a), P11(b) and P11(c)). Only inNovember to December 2000, the Surveyor-General’s Departmenthad conducted a training programme, which the petitioner hadsuccessfully completed (P12).
In April 2001, the petitioner was transferred to the ProvincialOffice in Kurunegala to serve as the Assistant Superintendent ofSurveys (P13). While the petitioner was functioning at the saidoffice, he received a show cause letter dated 26.02.2002, issued bythe Public Service Commission, alleging that the petitioner hadbeen inefficient during the period 1997 to 2000 (P14). Thepetitioner had requested that an inquiring officer be appointed andthat he be permitted to peruse the documents, for which the PublicService Commission had responded by letter dated 10.06.2002stating that there will not be a formal inquiry and for the petitionerto reply to the show cause letter within 3 weeks of the receipt of thatletter (P15 and P15(a)). The petitioner replied to the said showcause letter by his letter dated 27.08.2002 (P16).
Thereafter the petitioner received a copy of the letter of 9threspondent dated 05.08.2005 addressed to the Secretary, PubicAdministration stating inter alia that,
a decision had been taken to retire the petitioner with effectfrom 07.07.2005 on account of general inefficiency; and
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further recommending that 1% of his pension be deducted(P18 and P18(a)).
According to the petitioner, in terms of a Directive dated16.07.1999, if a Surveyor is inefficient he should be transferred andbe placed under the direct supervision of the AssistantSuperintendent of Surveys (P21). Also when there were similarlyplaced surveyors, who had a progress less than 100%, he wassingled out and treated differently.
In the circumstances, the petitioner alleged that the aforesaiddecision to retire him with effect from 07.07.2005 on account ofinefficiency and the recommendation to deduct 1% of his pensionis unreasonable, unfair and irrational and is violative of hisfundamental rights guaranteed in terms of Article 12(1) of theConstitution.
Learned Deputy Solicitor-General for the respondentscontended that the 9th respondent had clearly demonstrated thereasons for the decision contained in the document marked P18,which refers to the retirement of the petitioner on the basis ofinefficiency.
In her objections, the 9th respondent had stated that,
"Since the petitioner was generally weak in his administrativefunctions and has not shown any improvement in performanceof his duties, recommendation to retire him under Section 33of Chapter XLVIII of the Establishments Code had been madeby Secretary/Land and the Surveyor General."
The contention of the learned Deputy Solicitor-General for therespondents was that the petitioner had not shown progress of100% in his performance although he was warned so by letterdated 15.02.1999. It was also submitted that the petitioner'sprogress during the period of 1997 to 2000 was well below 100%and therefore on three occasions his increments had beendeferred. Accordingly learned Deputy Solicitor-General for therespondents submitted that the petitioner's unenviable record ofhaving his salary increments deferred for a continuous period of 03years alone should clearly indicate the incompetency andinefficiency of the petitioner. He therefore contended that on the
SC Munasinghe v Vandergert (Dr. Shirani Bandaranayake, J.)227
aforesaid grounds the decision of the Public Service Commissionto retire the petitioner prematurely could be justified.
The question that has to be addressed by this Court thus wouldbe whether such decision to retire the petitioner and the deductionof 1% of his pension by the respondents was warranted.
On a perusal of the documents tendered by the respondents itis apparent that the progress of work during 1997 to 2000 of thepetitioner had been taken into consideration for theaforementioned decision to retire the petitioner'on the basis ofinefficiency.
The contention of the learned Deputy Solicitor-General was twofold. Firstly, he stated that the petitioner's progress during theperiod 1997 to 2000 was below 100%. Secondly, he submitted thatthe petitioner's increments were deferred on three(3) occasions.
The 9th respondent, being the Secretary, Public ServiceCommission in her affidavit had averred that, clause 33.1 ofChapter XLVIII was strictly adhered to when proceeding with thismatter.
Clause 33.1 of the Establishments Code reads as follows:
"Where warnings, reprimands and other punishmentsimposed on an officer over a long period of time on variousoccasions during his period of service for acts of misconductor misdemeanor or negligence or inadvertence have failed inimproving his conduct and efficiency, the DisciplinaryAuthority may, if he determines that his continuation in theservice is detrimental to the efficiency of the Public Service,retire the officer for general inefficiency."
A careful examination of the aforesaid clause reveals that inorder to take steps under clause 33.1, it is necessary to have proofthat the officer in question had failed to improve his conduct andefficiency for a continuous period of time.
It would be pertinent in these circumstances, to refer to thesubmissions made by the learned Deputy Solicitor-General for therespondents, indicating that the petitioner's conduct at work hadnot shown any progress,
228Sri Lanka Law Reports(2008] 2 Sri L.R
According to the learned Deputy Solicitor-General the progressof work performed by the petitioner during the period of 1997 to2000 was as follows:
"9R1 H – Reveals that the salary increment cannot beapproved, as his grading for the year 1999 is 62.5%
9R1 I – It is the confidential report for the period covering
till 30.08.1999. The reasons for non-granting of promotion/increment is disclosed incages 14 and 16 thereof.
9R1 J – Reveals salary increment withheld. In 1998 scored33% and in 1999 scored 64%.
9R1 L – Confidential Report from 01.09.1999 till 31.12.1999reveals progress is very poor, increment notrecommended.
9R1 M&O – Reveals that in 2000 obtained 64%, incrementnot recommended.
9R1 P – Confidential Report from 01.01.2000 to 22.06.2000reveals progress very poor, increment deferred.
9R1 R- Reveals increment deferred in view of poorprogress.
9R1 S- Confidential Report from 23.06.2000 till 31.12.2000reveals poor progress and increment deferred."
It is to be noted, as referred to earlier, that in 1997 the petitionerwas released to the 'Title Registration Pilot Project', where he hadserved until May 2001. That project needed the use of modernequipment and the knowledge to use high tech device' and precisedigital measuring instruments. The circular issued for such purposehad clearly identified the staff training as one of the requirementsfor the successful implementation of the project (P9). It is notdisputed that such training was not provided for the petitioner at thetime he was released to the 'Title Registration Pilot Project'.
Notwithstanding the absence of training, the petitioner'sprogress for the years 1998, 1999 and 2000 had been 33%, 63%and 64% respectively (9R1 to 9R7). Although in terms of the
SC Munasinghe v Vandergert (Dr. Shirani Bandaranayake, J.)229
assessments made by the respondents, a progress of 60% isunsatisfactory, it cannot be disputed that the petitioner had showna remarkable improvement as his progress has risen upto 64%from, what it had been earlier. It is also interesting to note that theimmediate Supervising Officer of the petitioner had recommendedthe petitioner's increments for the period 01.01.1999 to 30.08.1999(P17a), 01.09.1999 to 31.12.1999 (P17b) and from 01.01.2000 to
(P17c). Recommending his increments, the
Supervising Officer had stated that the petitioner had servedsatisfactorily during the time he functioned under hfs supervision.
Accordingly, when the petitioner's conduct and efficiency isconsidered in the light of clause 33.1 of the Establishments Code,it is apparent that petitioner had made satisfactory progress in hiswork and conduct during the period 1997 to 2000. In fact, thepetitioner's progress, which had been 0% in 1997 had risen upto64% in 2000.
In the light of the aforesaid circumstances I would now turn toexamine the petitioner's grievance before this Court.
The petitioner's allegation was that the decision to retire him interms of clause 33 of the Establishments Code was arbitrary andthat it is violative of Article 12(1) of the Constitution. Article 12(1),which deals with the right to equality is in the following terms.
"All persons are equal before the law and are entitled to theequal protection of the law."
Thus the constitutional provision in terms of the right to equalityembraces both the non-discrimination as well as the wider conceptof equality that would include the right to equal treatment of allclasses without any discrimination.
An allegation of mere inequality will not be sufficient in terms ofArticle 12(1) of the Constitution to hold that equal protection hasbeen denied. In order to hold that there had been a violation ofequal treatment it is necessary to show that the alleged decisionwas 'actually and palpably unreasonable and arbitrary' (ArkansasGas Co. v Railroad Commission<»)). When a decision against theexecutive and-or administrative action is challenged before Court,It is necessary to point out that the decision in question is
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unreasonable and arbitrary and has no rational basis to the mainobject in order to come within the scope of Article 12(1)of theConstitution. This position has been clearly stated in Ameeroonissav Mahboott2) where it was stated that,
"Mere differentiation or inequality of treatment does not perseamount to discrimination within the inhibition of the equalprotection clause. To attract the operation of the clause it isnecessary to show that the selection or differentiation isunreasonable or arbitrary, that it does not rest on any rationalbasis having regard to the object which the legislation has inview. “
The decision of the Public Service Commission to retire thepetitioner due to inefficiency had been based on the show causeletter, the petitioner’s reply to the said show cause letter and therecommendation of the Secretary to the Ministry of Lands. The saidrecommendation of the Secretary to the Ministry of Lands appearsto have been based on the letter of the then Survey-General. Thesaid letter is dated 17.10.2002 (9R7).
The Public Service Commission had thereafter in June 2003,(9R4) made inquiries from the Secretary, Ministry of Lands referringto the Surveyor-General's letter of 17.10.2002 (9R7), the reasonsfor the decision of the Surveyor-General to retire the petitioneron the basis of inefficiency. In fact the said letter of the Surveyor-General (9R7) repeatedly states that arrangements are beingmade to retire the petitioner on the basis of inefficiency.
The Public Service Commission had responded to this letter byits communique dated 20.06.2003 addressed to the Secretary ofMinistry of Lands. This letter, which is reproduced below, is mostrevealing as it discloses not only the progress of the petitioner andthe reluctance of the Public Service Commission, quite rightly totake any action against the petitioner, but also the interest the thenSurveyor-General had shown in order to retire the petitioner on thebasis of inefficiency (9R4).
SC Munasinghe v Vandergert (Dr. Shirani Bandaranayake, J.)231
Taking into consideration the contents of the aforesaid letter alongwith the sequence of events that took place since February 2002,and the fact that allegations set out in the document dated
(P14) relate to incidents that had occurred more than 20years ago at the time the petitioner was a Cadet, clearly indicate thatthe decision to retire the petitioner on the basis of inefficiency withoutfollowing the provisions of clause 33 of Chapter XLVIII of theEstablishment Code and Circular 6/97 (P20) read with the Directivedated 16.07.1999 (P21) is arbitrary and unfair.
Considering the present day administrative functions, there is nodoubt that it is necessary to confer authority on administrative officers
to be used at their discretion. Nevertheless, such discretionaryauthority cannot be absolute or unfettered as such would be arbitraryand discriminatory, which would negate the equal protectionguaranteed in terms of Article 12(1) of the Constitution. Examiningthe discretionary powers and stressing the importance of the wellknown House of Lords decision in Padfield v Minister ofAgriculture, Fisheries and Food3) Lord Denning M.R. in Breen vAmalgamated Engineering Unions stated that,
"The discretion of a statutory body is never unfettered. It is adiscretion which is to be exercised according to law. That meansat least this; the statutory body must be guided by relevantconsiderations and not by irrelevant. If its decision is influencedby extraneous considerations which it ought not to have takeninto account, then the decision cannot stand. No matter that thestatutory body may have acted in good faith; nevertheless thedecision will be set aside. That is established by Padfield vMinister of Agriculture, Fisheries and Food (supra) which is alandmark in modern administrative law."
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SC Munasinghe v Vandergert (Dr. Shirani Bandaranayake, J.)233
Article 12(1) of the Constitution strikes at arbitrariness andensures fairness and equality in treatment. In a series of Indiandecisions it was clearly laid down that the basic concept of the rightto equality is not restricted to the doctrine of classification. In E.P.Royappa v State of Tamil Nadi/5), Bhagwati, J., (as he then was)clearly defined equality in the following terms:
"Equality is a dynamic concept with many aspects anddimensions and it cannot be ’cribbed, cabined and confined'within traditional and doctrinaire limits. From a positivistic pointof view equality is antithetic to arbitrariness. In fact equality andarbitrariness are sworn enemies; one belongs to the rule of lawin a republic while the other, to the whim and caprice of anabsolute monarch…."
The concept of equality explored in Royappa (supra) byBhagwati, J. (as he then was) was 'reaffirmed and elaborated' inManekha Gandhi v Union of India<6» and in International AirportAuthorityd).
Thus it is well established and well settled law, as stated in theaforesaid decision that an action, which is arbitrary must necessarilyinvolve negation of equlity.
Commenting on the applicability of equality clause in terms ofArticle 14 of the Indian Constitution Bhagwati, J. (as he then was)in A jay Hasia Khalid Mujit/*) stated that,
"Wherever therefore there is arbitrariness in State actionwhether it be of the legislature or of the executive or of an'authority' under Article 12, Article 14 immediately springs intoaction and strikes down such State action. In fact, the conceptof reasonableness and non-arbitrariness pervades the entireconstitutional scheme and is a golden thread which runsthrough the whole of the fabric of the Constitution (emphasisadded)."
It is not disputed that there was no formal inquiry, which examinedand considered the allegations that were leveled againstthe petitioner. It is also not disputed that no opportunity wasgiven to the petitioner to respond to the allegations leveled againsthim. On a consideration of the totality of the circumstances in this
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application it is apparent that the decision to retire the petitioner onalleged inefficiency without following the provisions of theEstablishment Code and the relevant Circular and Directives, is notonly arbitrary, but also unreasonable and unfair.
In the circumstances, for the reasons aforesaid I hold that the1st to 10th respondents have acted in violation of the petitioner'sfundamental right guaranteed in terms of Article 12(1) of theConstitution. I accordingly hold that the decisions contained in thedocument dated 05.08.2005 marked P18 are null and void.
I make no order as to compensation and costs.
DISSANAYAKE, J.I agree.
RAJA FERNANDO, J.I agree.