041-SLLR-SLLR-1999-V-2-DESHAPRIYA-v.-RUKMANI-DIVISIONAL-SECRETARY-DODANGODA-AND-OTHERS.pdf
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Sri Lanka Law Reports
11999] 2 Sri LR
DESHAPRIYA
v.RUKMANI, DIVISIONAL SECRETARY,DODANGODA AND OTHERS
SUPREME COURTFERNANDO, J..WADUGODAPITIYA, J. ANDGUNASEKERA, J.
S.C. (spg
APPLICATION NO. 118/97AUGUST 20, 1999.
Fundamental Rights – Suspension of a Samurdhi Niyamaka – Articles 12 (1) and12 (2) of the Constitution.
The 3rd respondent the Deputy Speaker of Parliament and a Member of Parliamentfor the Kalutara District summoned the petitioner, a Samurdhi Niyamaka and allother Samurdhi Niyamakas in the Dodangoda Divisional Secretary's Division fora meeting at which the 3rd respondent asked the Samurdhi Niyamakas to canvassamong the people, support for the People's Alliance candidates at the PradeshiyaSabha elections due to take place on 21. 03. 97. The petitioner said that thePeople's Alliance candidates were not the best candidates and declined to canvassfor them; whereupon, the 3rd respondent reprimanded the petitioner and saidthat all Samurdhi Niyamakas within the area had been appointed on his rec-ommendation, hence, it was their duty to act according to his wishes. The 3rdrespondent followed it up with a letter marked 'A* addressed to the Minister ofSamurdhi complaining that the petitioner had declined to support the SLFP andhe also had information that the petitioner was supporting the JVP. The 3rdrespondent requested urgent disciplinary action against the petitoner.
Thereafter, on the Samurdhi Minister's direction, the 2nd respondent(Commissioner- General of Samurdhi) directed the 1st respondent (DivisionalSecretary) to suspend the petitioner. Upon that direction, the 1st respondent"suspended the petitioner.
Held:
The suspension of the petitioner was not just a case of a suspension forwhich there was no reason but unlawful and a gross abuse of power tothe knowledge of the 2nd respondent. The 3rd respondent instigated thesuspension; and the 1st, 2nd and 3rd respondents infringed the petitioner'srights under Article 12 (1).
sc
Deshapriya v. Rukmani, Divisional Secretary Dodangoda and
Others (Fernando, J.)
413
Per Fernando, J.
The 2nd respondent may have acted – as he says in his affidavit – onlybecause he was ordered to do so by the Minister of Samurdhi, but he shouldhave known that that was an unlawful order which it was his duty to refuseto obey.*
The 2nd and 3rd respondents also infringed the petitioner's rights underArticle 12 (2) in that the suspension was the result of hostile discriminationon the ground of political opinion. Those respondents become personallyliable for such infringement.
Per Fernando, J.
“I hold that the use of the resources of the state – including humanresources – for the benefit of one political party or group, constitutes unequaltreatment and political discrimination because thereby ah advantage is con-ferred on one political party which is denied to its rivals.*
The suspension of the petitioner's service is nulland void.
Case referred to:
1. Faiz v. Attorney-General – (1995) 1 Sri LR 372, 383.
APPLICATION for relief for infringement of fundamental rights.
Srinath Perera for the petitioner.
U. Egalahewa, SC for the respondents.
Cur. adv. vult.
September 24, 1999.
FERNANDO, J.
By a letter dated 9. 4. 95 signed by the Divisional Secretary ofDodangoda (the 1st respondent), the petitioner was informed that,pursuant to a decision of the Ministry of Youth Affairs, Sports andRural Development, in regard to the Samurdhi Programme, he hadbeen appointed as a full-time Samurdhi Niyamaka for the Neboda WestGrama Seva Division, and that he was entitled to a monthly allowanceof Rs. 2,000 for his services. The 1st respondent informed the petitioner,by letter dated 13. 5. 97 (P2), received by him on 15. 5. 97), thatin accordance with letter dated 2. 5. 97 from the Commissioner-General of Samurdhi (the 2nd respondent), his services had beensuspended with immediate effect. No reason was given. By another
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letter dated 10. 6. 97, the 1st respondent asked the petitioner to handover all the files and documents in his possession. His complaint isthat his fundamental rights under Articles 12 (1), 12 (2) and 14 (1)(g) had been infringed by the suspension of his services.
The circumstances leading up to that suspension were these. Thepetitioner received a letter dated 28. 2. 97 (marked P4) signed bythe 3rd respondent, the Deputy Speaker and Member of Parliamentfor the Kalutara District. That letter, written on what appears to bethe official letter-head of the Deputy Speaker of Parliament, summonedhim for a meeting to be held at the Matugama Auditorium on 5. 3.97 (a working day) at 10.00 am; he was told to consider his presenceas compulsory because it was for a special reason.
The petitioner averred that all the Samurdhi Niyamakas of theDodangoda Divisional Secretary's Division were present at that meeting,at which the 3rd respondent presided; that "the meeting was convenedfor canvassing support and other organisational matters connectedwith the election campaign of the People's Alliance candidates con-testing the Dodangoda Pradeshiya Sabha election on 21. 3. 97"; andthat “the 3rd respondent asked the Samurdhi Niyamakas to canvassamong the people they work, support for the People's Alliance can-didates . . He said that at that meeting "he expressed the viewthat the candidates put forward by the People's Alliance for theDodangoda Pradeshiya Sabha were not the best candidates withinthe People's Alliance and therefore he was unable to go to the peopleand canvass for them"; that, thereupon, “the 3rd respondent rep-rimanded the petitioner saying that the petitioner and other SamurdhiNiyamakas [within that area] were appointed on his recommendationsand therefore it was the duty of all of them to act according to hiswishes"; and that the petitioner was the only person who spoke againstthe views of the 3rd respondent, while others who shared thepetitioner's sentiments remained silent due to the consequences theymight have to face.
The petitioner contended that “the 3rd respondent who is a politiciancannot dictate terms to the petitioner as to how he should behave";that he was the only Samurdhi Niyamaka from that Division who wasdismissed (actually, suspended); that he had been singled out andvictimized because he expressed his opinions at that meeting; andthat his suspension was a consequence of ill-will on the part of the3rd respondent.
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Deshapriya v. Rukmani, Divisional Secretary Dodangoda and
Others (Fernando, J.)
415
Although notices were served by registered post more than onceon the 1st and 3rd respondents, they did not file any objections oraffidavit. However, they were represented at the hearing by learnedState Counsel.
The 3rd respondent not only failed to deny the petitioner's versionof the events of 5. 3. 97, but corroborated it in a letter dated 6. 3. 97to the Minister of Samurdhi, Youth Affairs and Sports (which wascopied to the 2nd respondent, who produced it marked "A"). That letterwas also written on the official letter-head of the Deputy Speaker ofParliament In it the 3rd respondent stated that the' meeting of 5. 3. 97was held to explain matters connected with the Pradeshiya Sabhaelection; that a principal reason for holding that meeting was that afterthe initial meeting regarding the elections he had received reports thata .handful of Niyamakas had neglected these election activities; thatat that meeting the petitioner, in the presence of about 300 Niyamakas,had publicly stated that he would not support the SLFP candidates,and would support only the candidates of his choice; and that he hadattempted to incite others to follow suit. The 3rd respondent addedthat he had information that the petitioner was supporting the JVP.He urged that if immediate action was not taken in this connection,this might become an example to others; if so, it would not be possibleto achieve the objectives of this programme; and thereby serious harmwould result. He requested that urgent disciplinary action be takenagainst the petitioner.
It was only the Commissioner-General of Samurdhi (the 2ndrespondent) who filed an affidavit. There was a bare denial of thepetitioner's averments in regard to the letter ”P4" and the events of5. 3. 97. That denial is of no value because he had no personalknowledge of those matters, and because the 3rd respondent, whodid have personal knowledge, substantially corroborated the petitionerin his letter "A". Despite that denial, he did state that:
“Samurdhi Movement is the major poverty alleviation programmeof the government … it requires to be impartially implemented:Accordingly, all the officers who are engaged in the SamurdhiProgramme (including Niyamakas) have been instructed to performtheir duties devoid of politics; . . .
[the 3rd respondent] has informed the Hon. Minister of Samurdhi,Youth Affairs and Sports, by his letter dated 97. 3. 6 that [thepetitioner] had espoused his political opinions at a public meeting heldon 97. 3. 5. The Hon. Deputy Speaker has complained of the said
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Samurdhi Niyamaka's affiliation with certain political parties. . .
Upon those allegations, the Hon. Minister of Samurdhi has directedthe [2nd respondent] to remove the petitioner from his office as aSamurdhi Niyamaka . . .
[The 2nd respondent] by his letter dated 97. 5. 2 has directed [the1st respondent] to suspend the services of the petitioner. . .
[The 1st respondent] has acted accordingly by [her] letter dated97. 5. 13 (P2).°
He did not produce copies of the Minister's letter to him and ofhis letter dated 2. 5. 97 to the 1st respondent.
There is thus no dispute, and I hold, that the 3rd respondentrequired the petitioner to attend the meeting held on 5. 3. 97 andcalled on him to support one set of candidates at the forthcomingelection; that the petitioner lawfully refused to do so, and assertedhis legal right to support the candidates of his choice; that becuasehe had expressed his political opinion and was reported to be a JVPsupporter, the 3rd respondent had requested the Minister of Samurdhithat disciplinary action be taken against the petitioner; that upon theMinister's direction to remove the petitioner from office, the 2ndrespondent had directed the 1 st respondent to suspend him; and thatupon that direction the 1st respondent suspended the petitioner.
The Minister of Samurdhi was not made a respondent in theseproceedings, and I make no finding as to his responsibility.
ARTICLE 12 (1)
The petitioner claimed in his petition that the suspension of hisservices was without any reason, and therefore violative of Article12 (1). Not only was no reason given, but the circumstances madeit clear that the suspension was arbitrary and capricious.
As far as the 2nd and 3rd respondents were concerned, it wasnot just a case of a suspension for which there was no reason, butone which they knew full well was for a wholly bad reason. That reasonwas, unashamedly, stated in the letter “A", and it was obvious to themthat a suspension for that reason was both unlawful and a gross abuseof power. The 2nd respondent may have acted – as he says in hisaffidavit – only because he was ordered to do so by the Minister of
SC Deshapriya v. Rukmani, Divisional Secretary Dodangoda and
Others (Fernando, J.)417
Samurdhi, but he should have known that that was an unlawful orderwhich it was his duty to refuse to obey.
The 1 st respondent acted upon the direction of the 2nd respondent.While that does not absolve her from personal responsibility, thereis no evidence that she knew the real reason.
There is no doubt that the conduct of the 1st and 2nd respondents,in regard to the suspension of the services of the petitioner, constituted"executive or administrative action". However, the 3rd respondentwrote the letters "P4" and "A" in his capacity as Deputy Speaker andMember of Parliament, and perhaps his conduct might not have been"executive or administrative action". Nevertheless, it was he whoinstigated, and was primarily and principally responsible for, thatsuspension, and for the reasons which I have fully stated in Faiz v.Attorney-General that is enough to make him liable in these pro-ceedings.
I, therefore, hold that the 1st, 2nd and 3rd respondents haveinfringed the fundamental right of the petitioner under Article 12 (1).
ARTICLE 12 (2)
The 2nd and 3rd respondents knew that the suspension wasimproper and unlawful because it was wholly motivated by politicalconsiderations: because the petitioner had openly declined to supportthe candidates of the 3rd respondent's choice, and insisted on sup-porting those of his own choice, and because the petitioner was asupporter of a rival political party. The suspension of his services wasthus the result of hostile discrimination of the ground of politicalopinion.
I, therefore, hold that the 2nd and 3rd respondents have infringedthe fundamental right of the petitioner under Article 12 (2) as well.
There were aggrvating circumstances. The 3rd respondent's letter"A" reveals that 300 Samurdhi Niyamakas – all persons engaged torender services to the public, for which payment was out of publicfunds – were being diverted to serve partisan political purposes.Obviously, that would have hindered the performance of the publicfunctions for which they were being paid – "the major poverty alle-viation programme of the government [requiring] to be impartiallyimplemented", devoid of politics. But, another important question ofprinciple arises. Can persons paid out of public funds, collected directly
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or indirectly from citizens of all shades of political opinion, be usedto advance the interests of those of one political persuasion alone?
If public funds are paid to one political party while being denied toothers, beyond doubt that would be both a denial of equal treatmentand discrimination on the ground of political opinion. It makes nodifference whether public funds are directly paid to one political party(or a group, such as a list of candidates), or whether public fundsare indirectly used for the benefit of one party or group, as for instanceby the diversion to it of equipment, facilities and the like, paid forout of public funds. I hold that the use of the resources of the State- including human resources – for the benefit of one political partyor group, constitutes unequal treatment and political discriminationbecause thereby an advantage is conferred on one political party orgroup which is denied to its rivals.
It is unnecessary to decide whether the petitioner would have beenentitled to complain merely in his capacity as a member or supporterof the group prejudiced thereby. Here the petitioner himself was directlyaffected; a wrongful attempt was made to compel him to participatein political activity contrary to his beliefs, and he was illegally penalized(by the virtual deprivation of his livelihood) for giving expression tohis legitimate dissent.
There is also the circumstance that what happened was not merelyconnected to political opinion in a general way, but was directly inrelation to a pending election. I will assume that Articles 4 (e) and93 of the Constitution do not apply to Pradeshiya Sabha elections.Nevertheless, in a democracy elections must always be free, fair andequal, and Articles 12 (1) and (2) give constitutional force to thoserequirements of fairness, equality and non-discrimination.
The 3rd respondent's letter “A" makes it plain that the discriminatoryaction taken against the petitioner was on account of his politicalopinion – because he differed from the 3rd respondent's and persistedin his own; and that, too, in probable derogation of the fairness andequality of a pending election to a representative body forming partof the democratic structure of Sri Lanka. Not only was free competitionamong beliefs thereby stifled, but the profession of a particular opinionwas punished by the virtual deprivation of livelihood. Democracywithout dissent is a delusion. Democracy can never prohibit lawfuldissent. Indeed, a fundamental characteristic of true democracy is thatit nqt only protects dissent, and tolerates it, but genuinely cherishesdissent – recognising that it is only through a peaceful contest amongcompeting opinions that the ordinary citizen will perceive the truth.
SC Deshapriya v. Rukmani, Divisional Secretary Dodangoda and
Others (Fernando, J.)419
What has been established in this case, therefore, is a graveviolation of the petitioner's fundamental rights under Article 12.
ARTICLE 14 (1) (g)
While it is true that the petitioner's lawful occupation was affectedby the suspension of his services, nevertheless, that was entirely theconsequence of acts which – as I now hold – were infringementsof Article 12. There is no suggestion that there was any other distinctor independent act or omission constituting an infringement of Article14 (1) (g). Consequently, whatever wrong or injury the petitionersuffered will be fully redressed by granting him relief in respect ofhis claims under Article 12. It is, therefore, unecessary to considerwhether the suspension of his services was a violation of Article14 (1) (g) as well.
ORDER
I grant the petitioner declarations that his fundamental right underArticle 12 (1) has been infringed by the 1st, 2nd and 3rd respondents,and that his fundamental right under Article 12 (2) has been infringedby the 2nd and 3rd respondents.
Consequently, I declare the suspension of the petitioner's servicesto be null and void. Accordingly, the petitioner must be deemed forall purposes to have continued to be in service as a SamurdhiNiyamaka from 13. 5. 97 without a break in service. He will be entitledto all arrears of pay, as well as all other benefits which his colleaguesreceived during that period – in the form of salary, allowances,increments, permanency, promotions, etc.
In the initial affidavit which the petitioner sent to the Chief Justice,he claimed Rs. 100,000 as compensation. However, in the formalpetition which was filed after the matter was referred to the BarAssociation of Sri Lanka, there was only a bare averment that "thepetitoner is entitled to be compensated" – with no amount being stated,no prayer for compensation, and no request to the Court to fix theamount of compensation. Those omissions are inexcusable, but arenot sufficient to deny the petitioner compensation, because in his initialaffidavit he did claim Rs. 100,000 as compensation.
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The violation was serious, and was aggravated by the circum-stances I have referred to above. I award the petitioner a sum ofRs. 75,000 as compensation.
I see no reason why, in this case, compensation should be paidout of public funds. The 2nd and 3rd respondents could not possiblyhave thought that the petitioner's suspension was even remotelyconnected to the objectives of the Samurdhi Programme or any otherpublic purpose; it was plainly motivated by extraneous and improperpolitical considerations. I, therefore, direct the 2nd respondent per-sonally to pay the petitioner a sum of Rs. 5,000, and the 3rd respond-ent personally to pay him a sum of Rs. 70,000. Those payments shallbe made, and proof of payment submitted to the Registrar of thisCourt, before 1. 12. 99, failing which this application will be listedfor an order of Court as to enforcement. Although it is no justificationthat the 1st respondent merely carried out the orders of her superior,
I do not direct her to pay any compensation. Instead, I direct herto pay a sum of Rs. 500 to the petitioner as costs.
I direct the Registrar to forward copies of this judgment –
to the Public Service Commission so that it may considerwhat disciplinary action, if any, should be taken against the 2ndrespondent on account of his conduct in regard to the suspensionof the petitioner;
to the Attorney-General so that he may consider whetherthe conduct of the 2nd and 3rd respondents constitutes "corruption"(within the meaning of section 70 of the Bribery Act as amendedby Act, No. 20 of 1994) or any other offence, and take appropriateconsequential action; and
to the Auditor-General so that he may consider the regularity(in the light of the applicable financial, administrative and otherregulations) of the deployment of Samurdhi Niyamakas for politicalpurposes, particularly in relation to elections, and take appropriateconsequential action.
WADUGODAPITIYA, J. – I agee.
GUNASEKERA, J. – I agree.
Relief granted.