Nandasena vs Chandradasa, O. I. C., Police Station,
Hiniduma and Others (Bandaranayake, J.)
A. E.M.G. FERNANDOVSPEOPLE’S BANK AND OTHERSSUPREME COURT,
UDALAGAMA, J AND
SC APPLICATION (FR) 283/2004
28TH JANUARY AND 1 ST AND 2ND MARCH, 2005
Fundamental Rights-Failure to grant extension of services-Abmpt termination ofservices-failure to give reason for premature termination of services beyond28.06.2004-Legitimate expectation of extensions-Article 12(1) of the Constitution.
The petitioner was the Chief Manager of the Internal Audit Department of thePeople’s Bank. On reaching 55 years age, he was given three extensions interms of Circular No. 323/2001. His last extension was from 28.06.2003 to28.06.2004. On 16.06.2004, twelve days before his 58th birthday, the letter P18 was received (from the Bank) informing that his services will not be extendedbeyond 28.06.2004. No reasons were given for that decision;
The justification for the termination of services is contained in R4 filed with'the objections of the Deputy General Manager. This appears to be a report byan officer albeit unsigned.
The sudden termination of services by P 18 at short notice and withoutreasons was violative of Article 12(1) of the Constitution.
The petitioner had a legitimate expectation of receiving extensions upto the 60th year, in normal circumstance which expectation had beendenied without adducing any reasons.
Case referred to:
1. Surangani Marapona vs Bank of Ceylon and Others (1997) 3 Sri L. R. 156APPLICATION for relief for infringement of fundamental rights.
Saliya Peiris with C. Madanayake for petitioner.
Sri Lanka Law Reports
(2006) 1 Sri L R.
Wijedasa Rajapaksa, P. C., with Sasika Dissanayake for respondents
8th July. 2005UDALAGAMA, J.
Admittedly the petitioner as at the date of this petition was the ChiefManager of the Internal Audit Department of the People’s Bank and on hisreaching the age of 55 years was granted extensions of service for thepast 3 years. The last extension of service for one year was granted from
It is the contention of the petitioner that he had satisfied all therequirements regulating the granting of extensions as set out in circularNo. 323/2001 and complains that on 16.06.2004,12 days before his 58thbirthday that he received the impugned letter marked and filed of record asP18 informing him that his services will not be extened beyond 28.06.2004.
Learned Counsel for the petitioner submitted that vide regulations asfound in the aforesaid circular No. 323/2001 referred to above, which alsoadmittedly regulates the granting of extensions, declares that the age ofretirement of Bank employees shall be 55 years, but however thatextensions of service of a Staff grade employee would be granted at thediscretion of the management for a specific period beyond 55 years of ageand up to 60 years. Vide the contents of the same circular the GeneralManager or the Chief Executive Officer of the Bank is tasked with thediscretion to grant such extention taking into consideration factorsenumerated in the said circular.
Paragraph 10 of the circular inter-alia deems it necessary in the eventthe applicant’s application for an extension is unsuccessful, to be notifiedof such refusal of extension of service, affording him an opportunity to re-apply for a service extension for a further period in terms of the said circular.The failure of the unsuccessful candidate to have done so would be deemedto have shown that such applicant was not interested to further serve theaforesaid Bank.
Paragraph 12 of the circular specifies the requirement that in the eventof an applicant’s extension of service not been recommended that a
A. £ M. G. Fernando vs. People's Bank and Others(Udalaaama. J.l
separate report stating the reasons of such non recommendation be sentdirectly to the Deputy General Manager of the respondent Bank.
Apparently there appears to be no evidence that such steps had in factbeen taken.
The learned President’s Counsel for the 1 st to 9th respondents in hiswritten submissions to this court has referred this court to items Nos. 1 -4,and 6 and 7 of the aforesaid circular No. 323/20Q1 and has furthersubmitted that the 1st respondent institution being a business entityengaged in a highly competitive field of banking activities is vested with fullpowers and discretion in recruitment, transfers, promotions and the grantingof extensions of services to its employees.
However, the respondent Bank is an institution of the State. Hence I amof the view that this court in the circumstances need to examine thecomplaint of the petitioner that the petitioner’s fundamental rightsguaranteed by Article 12(1) of the Constitution have been violatedconsequent to the acts of the respondent Bank. Besides discretion in myview need to be exercised properly and reasonably.
That no adequate and specific reasons for the non recommendation ofthe petitioner’s application for an extension of service are forthcoming inrespect of the petitioner’s application, is patent.
R4 filed with the objections of the Deputy General Manager appears tobe a report made out by an officer, albeit unsigned, to be the basis of thenon recommendation and contains no reasons for such nonrecommendation.
P8 the impugned order refusing the petitioner’s application forextension of service is bereft of any reasons for such refusal. Besides P8is dated 14.06.2004 and same being an adverse recommendation andundoubtedly delayed, I am of the view that the said impugned notificationclearly contradicts the provisions of the said circular No. 323/2001.
The absence of a separate report giving reasons for the refusal of anextension which had to be submitted to the Deputy General Managerwithout delay, is also contrary to the provisions of the aforesaid circular.
Sri Lanka Law Reports
(2006) I Sri L R.
As submitted by the learned Counsel for the petitioner the decision ofthis Court in Surangani Marapona vs. Bank of Ceylon and othersP* heldthat 4 months delay to decide an application for an extension of service“had been an inordinate delay”.
In the instant case the delay to refuse the petitioner’s application, videthe impugned P8, left the petitioner barely 14 days to retire from the Bank.Importantly no reasons for such delay were also forthcoming. Thenecessity to give reasons for its decision to refuse an application for anextension, was also emphasised in Surangani Marapona vs. Bank of Ceylon(supra) when this court held that, “there should be sufficient reasons tosupport such decision beyond doubt”.
I would also agree with the submissions of the learned Counsel for thepetitioner that the latter had a legitimate expectation to serve the respondentBank on annual extensions of service upto the age of 60 years and thatthe petitioner is entitled to be apprised of the reasons to justify the denialof the aforesaid legitimate expectation of the petitioner to serve the Bankuntil the petitioner reached the age of 60 years.
In the aforesaid circumstances and subsequent to careful scrutiny, Iam of the view that inter alia the inordinate delay in determining and notifyingthe refusal of the petitioner’s application and having failed to give reasonsfor the refusal of an extension the management of the respondent Bankhas violated the fundamental rights guaranteed to the petitioner underArticle 12(1) of the Constitution and this court would make order quashingP8 and further that the management of the respondent Bank grant to thepetitioner an extension of service from 28.06.2004 to 28.06.2005. No costs.
BANDARANAYAKE,J. —I agree.
DISSANAYAKA J. —I agree.
A. E. M. G. FERNANDO vs. PEOPLES BANK AND OTHERS