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AMARASEKERAvs.
KARUNASENA KODITHUWAKKU, MINISTER OFHUMAN RESOURCE DEVELOPMENT,EDUCATION AND CULTURAL AFFAIRS AND OTHERS
COURT OF APPEAL
SALEEM MARSOOF PC., J.(P/CA),
SRISKANDARAJAH, J.,
CA APPLI.362/2004SEPTEMBER, 30, 2004 WRITOCTOBER 18, 2004NOVEMBER 15TH, 25TH, 2004
Writ of Mandamus – Pension – Intentionally delayed – Minutes on Pensions -Section 12 (1) – Applicability – Constitution – 17th Amendment – Article 61A -Ouster of jurisdiction – Interpretation Ordinance 2 of 1947 – Section 2.
The Petitioner sought a Writ of Mandamus directing the Respondents to forwardthe necessary documents to the 14th Respondent – Director of Pensions, toenable him to take steps for the award of the pension. The complaint of thePetitioner was that, the Respondents were intentionally delaying the forwarding
CA
Amarasekera vs. Karunasena Kodithuwakku, Minister of Human
Resource Development, Education and Cultural Affairs and others
(Saleem Marsoof, J.)
59
of the relevant documents to the Director of Pensions, with a view of applyingthe provisions of Section 12 (1) of the Minutes on Pensions (MOP) to thePetitioner. With retrospective effect and that Section 12 (2) of the MOP cannot be.applied to withhold the pension of an officer who has already retired ; and that-in'order to make an Order under Section 12 (1) of the MOP disciplinary actionagainst a Public Officer should have been pending or contemplated at the timeof retirement.
The Respondent contended that after a Preliminary Investigation thePetitioner was found responsible for certain irregularities and disciplinary actionwas recommended.
The Respondent further contended that the Public Service Commission(PSC) was intimated that the Petitioner is due to retire on 15.02.2003, and toconsider the possibility of retiring the Petitioner in terms of Section 12(1) of theMOP in view of the findings against him. On 23.06.2003, the PSC has intimatedthat the payment of the Petitioner's pension should be withheld in terms ofSection 12 (1) and further directed that disciplinary action be commencedagainst the Petitioner.
HELD-
It is quite fortuitous that the retirement of the Petitioner had intervenedinto the disciplinary and other proceedings which were contemplatednot only against the Petitioner but also against other officials – this isa case in relation to which Section 12 (1) of the MOP may be legitimatelyapplied, so long as disciplinary proceedings were contemplatedagainst the retiring public officer at the time of his retirement therelevant disciplinary authority may permit his retirement, subject toSection 12 of the MOP.
The fact that the PSC may have made its determination (23.06.2003)after his actual retirement (15.02.2003) will not affect the validity of thesaid Order.
The Petitioner cannot maintain this application if he is not challengingthe determination of the PSC.
APPLICATION for a writ of Mandamus.
Cases referred to :
1. Wilbert Godawela vs S. D. Chandradasa and Others – 1995 2 Sri LR 338(Distinguished)
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2. Peiris vs Wijesooriya, Director, Irrigation and others – 1999 1 Sri LR 295.
D. S. Wijesinghe P. C., with Ms Faisza Musthapha – Marikkar and Ms TushaniMachado for Petitioner.
Ms Uresha de Silva, State Counsel for the Respondent
DecembeM6, 2004
SALEEM MARSOOF, P. C. P(C/A)The Petitioner has sought a mandate in the nature of a writ of mandamusdirecting the 2nd Respondent and/or the 3rd to the 13th Respondents toforward the necessary documents to the 14th Respondent Director ofPensions to enable him to take steps for the award of pension to thePetitioner. The Petitioner complaints that the 2nd Respondent and/or the3rd to the 13th Respondents are intentionally delaying the forwarding ofthe relevant documents to the 14th Respondent with a view of applying theprovisions of Section 12 (1) of the Minutes on Pensions to the Petitionerwith retrospective effect. It is submitted on behalf of the Petitioner that thiscourse of action is contrary to law and to established procedure. It isfurther submitted that the non-payment of the Petitioner's pension, despitethe lapse of over one year after retirement, is illegal, null and void and agross violation of the Petitioner's rights to receive the same in terms of theMinutes on Pensions which is a part of the written law of this country interms of Section 2 of Interpretation (Amendment) Ordinance No. 2 of 1947.
According to the petition filed in this case, the Petitioner counts anunblemished record of 35 years of service in the public service. Havingbeing released from the public service by the Ministry of Rehabilitation,the Petitioner was appointed as Project Accountant of the EmergencySchool Rehabilitation Project funded by the Asian Development Bank underthe Ministry of Education from 23rd November 1992. With effect from 24thJanuary 1994, the petitioner was appointed as Project Accountant of theSecondary Education Project also funded by the Asian Development Bankunder the Ministry of Education on a contract basis initially for a period of3 years. As the period of release granted to the petitioner was due toexpire on 2nd January 1997 in terms of Public Administration Circular No.52/91 dated 10th January 1991, the then Minister of Education had soughtand obtained Cabinet approval to retain the services of the Petitioner untilthe completion of the said project and accordingly the Petitioner continuedto serve until the completion of the Project in 2000.
CA Amarasekera vs. Karunasena Kodithuwakku, Minister of Human6 ]
Resource Development, Education and Cultural Affairs and others
(Sa/eem Marsoof, PC. J. (P/CA))
The Petitioner states that he was then appointed as Project Accountantof a new project, namely the Asian Development Bank funded SecondaryEducation Modernlzation Project with effect from 1st'January, 2001 uponCabinet approval obtained for the purpose. Subsequently, in addition tothe duties of his substantive post as Project Accountant", the petitionerwas appointed to act as the Project Director following the removal of thethen Director. The Petitioner states that he had to decline the saidappointment as it was improper for him as a single individual to performtwo of the four financial functions, namely, authorization, approval,certification and payment, as each such function has to be performed bydifferent officers to ensure internal check as envisaged by the GovernmentFinancial Regulations. Accordingly, the post of Project Director was filledand the Petitioner continued in his position as Project Accountant. ThePetitioner claims that thereafter he was called upon by the 2nd Respondentby his letter dated 20th December, 2002 (PI 0) to explain certain accountsmaintained in respect of the Project for the period 21st to 29th October2002. The Petitioner claims that he duly tendered his explanation whichhe considers as having been accepted as he did not received any intimationto the contrary.
The Petitioner held the substantive post of Accountant Class II Grade Iof the Sri Lanka Accountants' Service at the time he reached the age ofcompulsory retirement (60 years) on 15th February, 2003. In response toa request made by the Petitioner from the 2nd Respondent by his letterdated 6th September 2002 (P-12) that steps be taken to retire him fromservice with effect from 15th February, 2003 on which date he was due tocomplete his age of compulsory retirement, he received a letter dated14th February, 2003 (P-13) from the 2nd Respondent that his services asthe Project Accountant would be terminated from 15th February, 2003.However, as there was no confirmation that the Petitioner was retired frompublic service with effect from 15th February, 2003, the Petitioner wrotethe letters dated 25th February, 2003 (P14), 8th April, 2003 (Pi 5) and 6thMay 2003 (Pi6) to the 2nd Respondent and the Petitioner received theletter dated 7th May, 2003 (P-17) from the Additional Secretary of the 2ndRespondent informing him that his pension papers had been forwarded tothe Secretary of the Accountants' Services Board.
The Petitioner claims that as he did not receive any pension, he soughtthe assistance of the Human Rights Commission by his letter dated 19th
5-CM 6553
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May, 2003 (P 18a) addressed to the Secretary of that Commission. ThePetitioner states that to his utmost surprise, he received a letter dated15th October, 2003 (P-21) from B. A. W. Abeywardena – PreliminaryInvestigation Officer, captioned "Special Investigation into the Activities ofthe Secondary Education Modernization Project", calling upon the Petitionerto call over at the Ministry of Education on 7th November 2003. As thePetitioner was no more a public officer, and as his services as ProjectAccountant was purportedly terminated upon his reaching the age ofcompulsory retirement (60 years) on 15th February 2003, he replied thesaid letter with his letter dated 31 st October 2003 (P-22) stating that hewas at a loss to comprehend as to why he was being called up to clarifyany irregularities after the lapse of nine months from his retirement. ThePetitioner states that he received the letter dated 3rd December, 2003(P-23) from the Human Rights Commission forwarding for his response acopy of a letter dated 29th October 2003 sent to the said Commission bythe office of the 2nd Respondent from which it transpired that –
a preliminary investigation was in progress relating to certainfinancial irregularities in the said Project involving, inter alia thePetitioner;
the Public Service Commission had directed that the Petitionerbe retired under Section 12 (1) of the Minutes on Pensions ;and
a decision with regard to the payment of pension to thePetitioner would be taken only on receipt of the report of thesaid preliminary investigation.
The Petitioner states that he replied the said letter with his letter dated23rd December 2003 (P-24) addressed to the Legal Officer of the HumanRights Commission stating inter alia that the Petitioner could not be retiredunder Section 12 (1) unless there was disciplinary action pending orcontemplated against him at the time of his retirement. The Petitioner hasalso invited the attention of Court to the letter dated 12th January, 2004(P-25) addressed by the Secretary to the Public Service Commission tothe 3rd Respondent as a reminder to an earlier letter dated 17th December,2003 requesting the latter to forward his observations and recommendationstogether with draft charges against the Petitioner. It is submitted on behalfof the Petitioner that he has not been informed in terms of Section 26 : 8
CA Amarasekera vs. Karunasena Kodithuwakku, Minister of Human 5 3
Resource Development, Education and Cultural Affairs and others
(Saleem Marsoof, PC. J. (P/CA))
of the Establishments Code, of any decision either by the Public ServiceCommission or by any other duly appointed*authority that he had beenretired under Section 12 (1) of the Minutes on Pensions, and as there wasno disciplinary action contemplated against the Petitioner at the time heretired upon reaching the age of compulsory retirement on 15th February,2003, the Petitioner is entitled to a writ of mandamus directing the 2ndRespondent and/ or the 3rd to the 13th Respondents to forward thenecessary documents to the 14th Respondent Director of Pensions toenable him to take steps for the award of the pension to the Petitioner. It iscontended on behalf of the Petitioner that the non-payment of his pensiondespite the lapse of nearly one year after he became entitled to retire, isillegal, null and void and a gross violation of the petitioner's right to receivesame in terms of the Minutes on Pensions which is a part of the writtenlaw in terms of Section 2 of the Interpretation (Amendment) OrdinanceNo. 2 of 1947. It is further submitted that the Petitioner had a legitimateexpectation of receiving his pension on retirement in terms of Rule 1 ofthe Rules framed under Section 2 of the Public and Judicial Officers'Retirement Ordinance No. 11 of 1910 as subsequently amended, and thedenial of the Petitioner's pension offends the principle of reasonableness,proportionality and fairness.
The case of the Respondents as set out in the Statement of Objectionsof the Respondents is that by his letter dated 20th December 2002(P10) the 2nd Respondent called upon the Petitioner to explain certainirregularities relating to certain financial transactions involving the SecondaryEducation Modernization Project that took place during the period 21 st to29th October 2002, and the Petitioner tendered his explanations by hisletter dated 31st December 2002 (F?11). Thereafter, a preliminaryinvestigation was held and the Interim Report dated 29th January 2003(15R3) revealed that the Petitioner was, along with certain other officers,responsible for certain financial irregularities. The Investigation Officer hasrecommended that disciplinary proceedings be commenced against theofficers responsible for the said financial irregularities, and that theresponsible officers be interdicted, sent on compulsory leave or retiredunder Section 12 of the Minutes on Pensions, as may be appropriate,pending the disciplinary proceedings. He has also recommended that thematter be also referred to the Commission to Investigate Bribery andCorruption. The Public Service Commission was informed of the findingsof the aforementioned preliminary investigation by the letter dated 13th
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February 2003 (15R1). A copy of the Interim Report marked 15R3 wasalso submitted to the Public Service Commission. The Public ServiceCommission was further intimated that the Petitioner is due to retire on15th February 2003 upon reaching the age of retirement and to considerthe possibility of retiring the Petitioner in terms of Section 12 (1) of theMinutes on Pensions in view of the aforesaid findings against him. By itsletter dated 23rd June 2003 (15R4) the Public Service Commission hasintimated its decision that the payment of the Petitioner's pension shouldbe withheld in terms of section 12 (1) of the Minutes on Pensions andfurther directed that disciplinary action be commenced against thePetitioner. The principal question that arises for determination in this caseis whether Section 12 (1) of the Minutes on Pensions can be applied towithhold the pension of an officer who has already retired.
Section 12 (1) of the Minutes on Pensions reads as follows :
"12(1) Where the explanation tendered by a public servant againstwhom, at the time of his retirement from public service, disciplinaryproceedings were pending or contemplated in respect of hisnegligence, irregularity or misconduct, is considered to beunsatisfactory by the competent authority, the Permanent SecretaryMinistry of Public Administration, Local Government and Home Affairsmay either withhold or reduce any pension, gratuity or other allowancepayable to such public servant under these Minutes."
Learned Counsel for the Petitioner submits that it is trite law that inorder to make an order under Section 12 (1) of the Minutes on Pensions,a disciplinary action against a public officer should have been pending orcontemplated at the time of the retirement of the officer in question. Herelies on the decision of the Supreme Court in Wilbert Godawela v. S. D.Chandradasa and Others0> in which Amarasinghe J has observed at 343as follows
"It will be seen that a pension could, in terms of Section 12 (1) bewithheld or reduced only where (1) at the time of his retirement fromthe public service, disciplinary proceedings were pending orcontemplated and (2) where the explanation tendered by the publicservant concerned is considered to be unsatisfactory. In the matterbefore us, there was no disciplinary proceedings pending at the timeof the retirement. Nor were such proceedings contemplated."
CAAmarasekera vs. Karunasena Kodithuwakku, Minister of Human 5 5
Resource Development, Education and Cultural Affairs and others
(Saleem Marsoof, PC. J. (P/CA))
As emphasized by learned State Counsel appearing for the Respondents,the factual circumstances relating to the decision in that case are clearlydistinguishable from the instant case as the Petitioner had been calledupon by the letter dated 20th December 2002 (P10) to explain certainirregularities relating to certain financial transactions involving the SecondaryEducation Modernization Project that took place during the period 21 st to29th October 2002, and after the Petitioner tendered his explanations byhis letter dated 31 st December 2002 (P11), a preliminary investigation hadbeen held and the Interim Report relating to which dated 29th January2003 (15R3) revealed that the Petitioner was, along with certain otherofficers, responsible for some of the said financial irregularities. The PublicService Commission has been informed of these findings by the letterdated 13th February 2003 (15R1) albeit two days prior to the retirement ofthe Petitioner, and the said Commission has determined that the paymentof pension to the Petitioner, should be withheld pending the ensuingdisciplinary proceedings as evidenced by the letter dated 23rd June 2003(15R4).
This case materially differs from Wilbert Godawela v. S. D.Chandradasa(supra) and Others where the allegations against the officerconcerned were apparently not taken seriously by the authoritiesconcerned. In fact, the factual circumstances of the instant case arecomparable with the facts of Petris vs. Wijesooriya, Director, Irrigation andOthers{2] in which the Supreme Court sanctioned the application of Section12 (1) of the Minutes on Pensions Indeed in the case before us it is quitefortuitous that the retirement of the petitioner had intervened into thedisciplinary and other proceedings which were contemplated not onlyagainst the petitioner but also against the officials. I am therefore of theopinion that this is a case in relation to which section 12 (1) of the minuteson pensions may be legitimately applied. In my view, so long as disciplinaryproceedings were contemplated against the retiring public officer at thetime of his retirement, the relevant disciplinary authority may permit hisretirement subject to section 12 of the Minutes on Pensions. In my opinionthe mere fact that the Public Service Commission may have made itsdetermination after his actual retirement will not affect the validity of thatorder.
Learned State Counsel appearing for the Respondent’s has also placedreliance on Article 61A of the Constitution which was introduced by the17th Amendment to the Constitution. The said article provides that –
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"Subject to the provisions of paragraphs (1), (2), (3), (4) and (5) ofArticle 126, no court or tribunal shall have the power or jurisdiction toinquire into or pronounce upon or in manner call in question anyorder or decision made by the Commission, a Committee or anypublic officer, in pursuance of any power or duty conferred or imposedon.'such commission or delegated to a committee or public officerunder this chapter or any other law".
Learned President's Counsel for the Petitioner has responded to thisby submitting that the petitioner is not challenging any order made by thePublic Service Commission but is merely seeking a writ of mandamusdirecting the 2nd and/or 3rd -13th Respondents to forward the necessarypapers to the 14th Respondent, Director of Pensions to enable him totake steps for the award of pension to the Petitioner. I am of the opinionthat the Petitioner cannot maintain this application for a writ in the natureof mandamus if he is not challenging the determination of the Public ServiceCommission contained in the letter dated 23rd June 2003 (15R4) as itcuts across his case.
In the circumstances the application of the petitioner is refused. Therewill no order for costs in all the circumstances of this case.
SRISKANDARAJAH, J., -1 agree.
Application dismissed
