027-SLLR-SLLR-2003-1-DAYASENA-v.-BINDUSARA-DIRECTOR-NATIONAL-BLOOD-TRANSFUSION-SERVICE-AND.pdf
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DAYASENA
v.BINDUSARA, DIRECTOR, NATIONAL BLOOD TRANSFUSIONSERVICE AND OTHERS
SUPREME COURTFERNANDO, J.
GUNASEKERA, J. ANDYAPA, J.
SC (FR) 583/200129th NOVEMBER 2002
Fundamental Rights – Transfer order – Failure to produce the order – Failureto notify the transferee the reasons for the order or to provide an opportunityof meeting allegations made – Article 12(1) the Constitution.
The 1 st respondent was the Director, Central Blood Bank, Colombo; the 2ndrespondent was the Director-General Department of Health Services, and the3rd respondent was the Secretary, Ministry of Health.
The petitioner was a book-keeper in the public service attached to the CentralBlood Bank, Colombo. His duties included processing of loan applications andsubmission to the 2nd respondent for approval of the 3rd respondent.
In February, 2001 the petitioner evaluated a loan application of the 1st respon-dent and forwarded it with a recommendation that the 1st respondent was notentitled to the sum applied for in view of an outstanding balance on a previousvehicle loan. However, in July 2001 the 1st respondent acting independentlyof the petitioner was able to obtain approval for a lesser amount.as a loan andcollected it on a voucher authorized by herself, even though that loan was alsonot in accordance with the relevant conditions.
The petitioner next received the 1st respondent’s letter dated 4.10.2001informing him that by order dated 4.10.2001 the 2nd respondent has trans-ferred the petitioner to the Mental Hospital, Angoda. Neither the original nor acopy of the transfer order was produced. It was not suggested that the peti-tioner was served with a copy.
On appeal, the 3rd respondent replied that due to “administrative reasons” thetransfer could not be varied. The 2nd respondent did not file affidavit.
Dayasena v Bindusara, Director National Blood Transfusion
’££Service and others (Fernando. J.)223
The 1st respondent in her affidavit did not state whether the transfer ordergave reasons. However, the 1 st respondent alleged misappropriation of fundsand dereliction of duty against the petitioner.
Held:
There was no proof that the 2nd respondent did actually make a trans-fer order.
There was no transfer on the advice of the relevant Transfer Board asrequired by Chapter III, Section 3 of the Establishment Code (whichpermitted an ad hoc transfer – inter alia on disciplinary grounds)
In any event the petitioner was not informed of the allegations againsth|m and given an opportunity to explain matters.
As such the transfer was wrongful and arbitrary and violative of thepetitioner’s rights under Article 12(1) of the Constitution.
Per Fernando, J.
‘The contention of the counsel for the petitioner that the real reason for thetransfer was the 1st respondent’s displeasure about her vehicle loan is muchmore probable”.
APPLICATION for relief for violation fundamental rights.
Case referred to:
(1) Manage v. Kotakadeniya (1997) 1 Sri LR 204.
Elmore Perera for petitioner
M. Gopallawa, State Counsel for respondent.
Cur.adv.vult
January 29, 2003
FERNANDO, J.
The petitioner is a book-keeper in the public service. He wastransferred to the Central Blood Bank on 30.5.2000. By letter dated4.10.2001 the 1st Respondent, the Director of the National BloodTransfusion Service, informed him that he had been transferred tothe Mental Hospital, Angoda, with immediate effect. He complains
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that the transfer was in violation of his fundamental right underArticle 12(1).
In February 2001 the Petitioner was given a revised list ofduties which included the receipt and processing of loan applica-tions, and their submission to the 2nd Respondent (the Director-General of Health Services) for the approval of the 3rd Respondent(the Secretary to the Ministry). A number of loan applications, whichhad been submitted previously but returned unapproved due to var-ious shortcomings, were sent to him for attention. One of these wasa vehicle loan application by the 1st Respondent. The petitionerpointed out to the 1st Respondent how the shortcomings should becorrected. According to her that was done. The Petitioner maintainsthat one prerequisite was that the outstanding balance on a previ-ous vehicle loan application should have been settled, and that the1st Respondent refused to do so. However, there is no doubt thatthe Petitioner did forward that application on 20.2.2001 togetherwith his evaluation, which showed henriaximum loan entitlement tobe Rs. 783,360 and the balances due from her on two outstandingloans to be Rs. 53,695 on a vehicle loan, and Rs. 104,640 on a dis-tress loan. Accordingly, after deducting the balances outstanding,the maximum loan then obtainable was Rs 625,025.
The Petitioner alleged that thereafter, in May 2001, the 1stRespondent – without the Petitioner’s knowledge – obtained anotherdistress loan of Rs 121,960, having approved it herself. Admittedly, itwas only on 12.7.2001 that she repaid the balance of the vehicleloan. The Petitioner’s position is that thereupon the 1st Respondentwould have been entitled to a further loan of not more than Rs560,000 (i.e.after deducting the total of the then outstanding loans),and that she did not disclose to the 2nd and 3rd Respondents thefact that she had obtained the second distress loan.
By letter dated 12.7.2001 the Additional Secretary to theMinistry approved a loan of Rs 633,720. On the same day the 1stRespondent obtained a special imprest from the Ministry of a sumsufficient to cover her loan. The Accountant by a memorandumdated 13.7.2001 informed her of ten earlier loan applications byother officers, for a total of Rs 3.8 million, which had all beenapproved by the Ministry before her application, and asked her toobtain an imprest to cover those loans too. That was not done.
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Dayasena v Bindusara, Director National Blood Transfusion
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When the file was forwarded to the Petitioner for payment, hesubmitted a memorandum to the Accountant stating, first, that afterher loan application had been submitted to the Ministry the 1stRespondent had obtained a further distress loan on 15.5.2001, andsecond, that when the then outstanding loans were taken intoaccount the loan instalments to be deducted from her monthlysalary would exceed the limit of 40% prescribed by theEstablishments Code. The Accountant submitted that memoran-dum to the 1st Respondent, pointing out that the 40% limit wouldbe Rs. 8,704 p.m. while the loan instalments including interestwould amount of Rs. 11,732 p,m. The 1st Respondent merely min-uted “Noted and approved”, without disputing the Petitioner’s alle-gation as to her second distress loan. A sum of Rs. 633,720 wasthereupon paid to her the same day, upon a voucher authorized byherself.
The Petitioner then received the 1st Respondent’s letterdated 4.10.2001 which stated that by the 2nd Respondent’s trans-fer order dated 4.10.2001 he had ordered the Petitioner’s transferto the Mental Hospital, Angoda, with immeditate effect. The originalof the 2nd Responder’s transfer order would have been in the 1stRespondent’s possession, but she .produced neither the originalnor a copy. It was not suggested that a copy had been sent to thePetitioner. Both the Petitioner and his Trade Union submittedappeals, but the 3rd Respondent’s reply merely stated that for thenprevailing administrative reasons the transfer could not be varied.Thus the Petitioner had to file this application without knowing whyhe had been transferred, and without even being certain that it wasthe 2nd Respondent who had actually ordered his transfer.
The 1st Respondent did not state in her affidavit what reasonhad been given in the 2nd Respondent’s letter, nor did the 2ndRespondent file an affidavit. In her affidavit the 1st Respondentreferred to certain complaints which she had received about thePetitioner and claimed that his transfer “was recommended andordered in order to facilitate an inquiry into such complaints and inorder to avoid further disruption being caused to the smooth func-tioning of the administrative affairs at the Central Blood Bank”, andagain that it had been ordered “on disciplinary grounds and foradministrative reasons”. However, she did not state who had made
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that recommendation, and failed to produce the recommendation.
The resulting position is that the Respondents have failed toproduce the alleged recommendation for the transfer and the trans-fer order, and there is no evidence that the 2nd Respondent didorder the transfer, and as to the grounds of transfer – all of whichshould have been matters of record in the official files.
In her affidavit the 1st Respondent referred to the followingallegations againt the Petitioner:
The Commissioner-General of Samurdhi, by letter dated1.6.2001 had informed her that the Petitioner had beeninvolved in misappropriation of funds and frauds in the year2000 and had failed to hand over certain documents, andhad requested the 1st Respondent to hand over such doc-uments to a named officer; and that although she instructedthe Petitioner in writing to comply with that request, herefused to do so;
On 9.7.2001 the Petitioner refused to accept a revised dutylist:
By letter dated 28.7.2001 the Accountant had complainedthat the Petitioner was reporting for duty late very frequent-ly; that being the Secretary of his Trade Union, he wasattending to Trade Union matters and entertaining outsidersat the office during duty hours; and that he was reluctant tocarry out instructions from other officers; and
By letter dated 20.9.2001 a doctor had complained that thePetitioner had not paid a vehicle.loan even three days afterit had been approved by the Accountant.
Both Counsel agreed that it was the 2nd Respondent, asHead of the Department, who had the authority to transfer thePetitioner within the Department, from the Central Blood Bank tothe Mental Hospital, that the impugned transfer had been effectedwithout obtaining the advice of the relevant Transfer Board asrequired by the Establishments Code, and that under Chapter IIIsection 3 of the Code a transfer without such advice was authorizedonly in four situations: a transfer not involving a change of station,a transfer on disciplinary grounds, a transfer necessitated by theexigencies of service, and a transfer in a Department having lessthat 25 transferable officers.
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While the 2nd Respondent had authority to transfer thePetitioner on one or more of the grounds stated above, there is noproof that he did actually make a transfer order. Even assumingthat he did make a transfer order, there is no evidence as to thebasis on which he acted, and it cannot be assumed that it was onone of the four permitted grounds. But even if I were to assume thathe did act on one of those grounds, yet that ground and the sup-porting reasons were not disclosed to the Petitioner when the trans-fer order was made, and even when his appeals were refused -and that was a fatal flaw. In Manage v Kotakadeniya,(1) an exten-sion had been refused on the basis of findings that he had com-mitted several offences. It was held that the refusal of the extensionwas flawed because inter alia no reasons had been given for thefindings in respect of two of the offences alleged against him. In thepresent case, not only the reasons but even the ground had notbeen disclosed. I therefore hold that the Petitioner’s transfer waswrongful and arbitrary.
I have now to consider the complaints referred to by the 1stRespondent. There is nothing to show that those matters werebrought to the notice of the 2nd Respondent, and it cannot beassumed that he acted on those matters. Further, the Petitionerwas not given an opportunity of submitting an explanation in regardto those matters. Quite apart from any explanation which thePetitioner might have given, certian comments are unavoidable.Allegations of fraud and misappropriation of Samurdhi funds wereundoubtedly serious – but if they rendered him unfit to serve asbook-keeper at the Central Blood Bank how could he have beenallowed to serve elsewhere? As for the refusal to accept the revisedduty list, the Petittioner averred in his counter-affidavit that theAccountant had accepted his position – and that may well be truebecause the Accountant’s letter dated 28.7.2001 made no com-plaint on that score. If the Accountant’s complaints about frequentlateness and attending to Trade Union matters during workinghours were true, one would have expected supporting evidence inthe form of previous warnings to the Petitioner and reports to the1st Respondent. The contention of learned Counsel for thePetitioner that the real reason for the transfer was the 1stRespondent’s displeasure about her vehicle loan is much moreprobable.
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I hold that the Petitioner’s fundamental right under Article12(1) has been infringed by the 1st Respondent, quash thePetitioner’s transfer to the Mental Hospital, Angoda and award hima sum of Rs 50,000 as compensation payable by the State, and asum of Rs 10,000 as costs payable by the 1st Respondent person-ally, on or before 31.3.2003. The Auditor-General is directed to sub-mit a report to this Court, on or before 30.4.2003, on the Petitioner’scomplaint to the Auditor-General dated 4.10.2001.
GUNASEKARA, J.-I agree.
YAPA, J.-I agree.
Relief granted.