020-SLLR-SLLR-2005-V-2-SELVAMANI-vs-DR.-KUMARAVELUPILLAI-AND-OTHERS.pdf
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Selvamani vs Dr. Kumaravelupillai and Others Sisira de Abrew J.
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SELVAMANIVSDR. KUMARAVELUPILLAI AND OTHERSCOURT OF APPEALSRIPAVAN. J.
SISIRA DE ABREW J.
C. A. APPL. NO. 45/2004 (WRIT)
FEBRUARY 10, 2005
Writ of Certiorari/Mandamus to quash decision to demote and compel authorityto restore to the earlier post-ls a writ of Certiorari available as a matter of right?-Has the Court discretion? – will a writ of Mandamus be granted when it appearsthat it would be futile ?
The Petitioner was requested to hand over the keys of the Projector Room tothe Authorities before he went on leave. The Petitioner did not hand over same,The authorities conducted a disciplinary inquiry against the Petitioner for nothanding over the keys when he went on leave. After the Inquiry, the Petitionerwas demoted and transferred.
The Petitioner contends that he has been severely punished without anycharges being framed-thus violating the provisions of the Establishment Code.
HELD-
(i) It is an undisputed fact that the Petitioner did not hand over the keys to *the Authorities when he went on Leave.
The Disciplinary Inquiry and the demotion of the Petitioner arose as aresult of the said conduct.
It is not the practice of this Court to exercise the jurisdiction nowinvoked, to relieve the Petitioner of the Consequences of his own folly,negligence and laches.
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Per Sisira de Abrew J.
“A person who is seeking relief in an application for the issue of a writof certiorari is not entitled to relief as a matter of course, as a matter ofright or as a matter of routine. Even if he is entitled to relief, still theCourt has a discretion to deny him relief having regard to his conduct,delay, laches, waiver submission to jurisdiction are all validimpediments, which stand against the grant of relief.
The Petitioner has been sent on vacation of post after the Order of demotion.
This order has not been challenged by him.
HELD further :
(i) Even if this application of the Petitioner is granted, he is not entitled toresume his earlier office in view of the Order of vacation of post.Therefore issuing a writ of Mandamus would be futile. A writ ofMandamus will not be issued if it will be futile to do so and no purposewill be served.
Application for Writs in the nature of Certiorari/Mandamus.
Cases referred to :
Gunawardena vs Sugathadasa – CA 1315/9 – CAM 29.11.1991
Jayaweera vs Assitant Commissioner of Agrarian Services – 1996 2Sri LR 70.
Sethu Ramasamy vs Moregoda – 63 NLR 115
Samsudeen vs Minister of Defence and External Affairs 63 NLR 430
Gunasinghe vs Mayor of Colombo – 46NLR 85
Eksath Engineru Saha Samanya Kamkaru Samithiya vs S. L. S. deSilva 73NLR 260
Srinath Perera for Petitioner
Ms. M. N. B. Fernando S. S. C. for Respondents
cur.adv.vult.
March 14, 2005SISIRA DE ABREW J.
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Selvamani vs Dr. Kumaravelupillai and Others Sisira de Abrew J.
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This is an application for writs of certiorari and mandamus to quash thedecision of the first respondent demoting the petitioner and to compel thefirst respondent to restore the petitioner to his earlier post of ProjectOperator respectively.
The petitioner was appointed as a sanitary labourer of the HealthDepartment with effect from 01.08.1985 and was promoted to the post ofProject Operator with effect from 01.10.2001 by a letter dated 29.09.2001.issued by the first respondent. The petitioner who was attached to the 3rdrespondent’s office, applied for leave for 05 days from 13.07.2003 and hisleave was approved. However, he could not report for duty on the due dateas he fell ill and reported for duty only on 28.07.2003. The petitioner was inpossession of the keys of the projector room in which the Audio- Visualequipment of the 3rd respondent was installed. Before the petitioner wenton leave, the 3rd respondent requested the petitioner to hand over thekeys of the projector room to the Administrative Officer, but the petitionerdid not hand over the same as the 3rd respondent did not give the saidorder in writing. The petitioner, in his petition, claims that he requested the3rd respondent to give the order in writing.
The petitioner states that on 01.08.2003 the 2nd respondent conducteda disciplinary inquiry against the petitioner for not handing over the keys ofthe said room when he went on leave. The statement of the petitioner wasrecorded and he signed the said statement. The petitioner alleges thatafter the said inquiry, the first respondent, by his letter dated 11.09.2003(P4A), informed the petitioner that he has been demoted to the earlierpost of Sanitary Labourer and was transferred to the District Hospital,Cheddikulam, The Petitioner was also asked to pay certain expensesincurred by the 3rd respondent’s office as the respondents had to hire anaudio-visual equipment during his absence.
The learned Counsel for the petitioner contends that he has been severelypunished without any charges being framed and as such respondentshave violated the provisions of the Establishments Code.
It is an undisputed fact that the petitioner did not hand over the keys ofthe projector room to the Administrative Officer when he went on leave for05 days. It appears from the objections of the respondents that Audio-visual equipment and the public address system were installed in theprojector room and no duplicate keys were available to this room. During
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the period that the petitioner requested tor leave, the access to the projectorroom became essential as the respondents were getting ready to launchcertain programs. The respondents and the other member of the office didnot have access to the projector room during the said period as a result ofthe above-mentioned conduct of the petitioner. In view of .the above facts itappears that access to this room was essential in order to maintain smoothfunctioning of the office of the respondents where the petitioner wasemployed as a project operator. Hence it becomes the duty of the petitionerto hand over the keys of the said room when he goes on leave. It is notnecessary for the 3rd respondent to make an order in writing directing thepetitioner to hand over the keys to the Administrative Officer when thepetitioner applies for leave.
The petitioner’s leave for the period commencing form 14.07.2003 to
was approved but on 22.07.2003 the petitioner did not reportfor duty instead, he sent a letter stating the he was unable to report forduty as he was not well. He reported for duty only on 28.07.2003. Thepetitioner has stated in his counter affidavit that he submitted a medicalcertificate to the 3rd respondent’s office for the period commencing from
to 27.07.2003. But the respondents have stated in theirobjections that the petitioner did not submit a medical certificate for thisperiod. No. evidence whatsoever was placed before this court to establishthat a medical certificate was, in fact, submitted. It is observed that evenon 22.07.2003 the petitioner failed to hand over the keys of the projectorroom to the 3rd respondent. He did not even indicate his willingness tosend said keys to the respondent’s office when he informed the 3rdrespondent by 3R2 his inability to report for duty.
In view of the aforesaid conduct of the petitioner, failure to hand over thekeys of the projector room becomes relevant in this case. The disciplinaryinquiry and the demotion of the petitioner arose as a result of the saidconduct. In view of the above facts it appears that the petitioner’s demotionin P4A has arisen as a result of his own folly and negligence. In my view,the petitioner has come to this Court seeking redress for his own folly. H.W. Senanayake J in Gunawardena Vs Sugathadasaf'] observed that “It isnot the practice of this Court to exercise the jurisdiction now invoked, torelieve the petitioner of the consequence of his own folly, negligence andlaches. In the case of Jayaweera Vs. Assistant Commission of AgrarianServices (2) Jayasuriya J. remarked that “ A petitioner who is seeking
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Selvamani vs Dr. Kumaravelupillai and Others (Sisira de Abrew J.)
relief in an application for the issue of a writ of certiorari is not entitled torelief as a matter of course, as a matter of right or as a matter of routine.Even if he is entitled to relief, still the Court has a discretion to deny himrelief having regard to his conduct, delay, laches, waiver, submission tojurisdiction – are all valid impediments which stand against the grant ofrefief’. Applying fhese principles, I hold that a writ of certiorari will not lieto relieve the petitioner of the consequences of his own folly, negligenceand laches.
For the above reasons I hold that this Court is not disposed to grant therelief claimed-by the petitioner to quash the decision in P4A by way of awrit to certiorari.
The petitioner has now vacated post. This is evident from letter dated
(3R9A). The petitioner has been sent on vacation of post afterthe decision in P4A. At the hearing of this application the learned Counselfor the petitioner admitted that no application for writ of certiorari has beenfiled to quash the said order whereby the petitioner was sent on vacationof post.
The petitioner by this application also moves for a writ of mandamus onthe first respondent directing that the petitioner be restored to his earlierposition i. e. to the post of Project Operator. Even if this application of thepetitioner is granted, he is not entitled to resume his earlier office in view ofthe order of vacation of post (3R9A). Therefore, issuing a writ of mandamusin this case would be futile. In the case of Sethu Ramasamy Vs.Moregodd3) Gunasekara J. Observed that “A mandamus will not be grantedwhen it appears that it would be futile”. In the case of Samsudeen VsMinister of Defence and External Affairs(d) L. B. de Silva J too remarkedthat “ A writ of mandamus will not be issued if it will be futile to do so andno purpose will be served”. In the case of Gunasinghe Vs. Mayor ofColombo(5) De Kretser J. stated that “A mandamus will not be issuedwhen it appears that it would be futile in its result”. In the case of EksathEngineru Saha Samanya Kamkaru Samithiya Vs. S. C. S. de Silva (6)mandamus was sought to compel three respondents, the members of anIndustrial Court, to function as an Industrial Court. By the time theapplication was heard by the Court all three members had ceased to holdoffice as members of the Court. The writ was refused because partiesobviously cannot be ordered to do what they are not qualified to do and aretherefore unable to do.
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Applying the legal principles stated in the aforesaid decisions, I holdthat the mandamus will not be granted when it appears that it would befutile.
I have already pointed out that issuing a mandamus would be futile inthis case. The application of the petitioner for writ of mandamus should failon this ground alone.
The learned counsel for the petitioner argued that the punishmentsimposed on the petitioner was invalid in law as the respondents had failedto frame charges against the petitioner. I have earlier pointed out that itwould be futile to issue a writ of mandamus in this case and the petitioneris not entitled for a writ of certiorari. Therefore, failure to frame a chargeagainst the petitioner does not arise for consideration.
For the above reasons I dismiss the petition of the petitioner. There willbe no costs.
SRIPAVAN J.—I agree
Application dismissed.