002-SLLR-SLLR-1999-V-1-DR.-AJANTHA-WIJESINGHE-PERERA-v.-UNIVERSITY-OF-COLOMBO-AND-OTHERS.pdf
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Dr. Ajantha Wijesinghe Perera v.
University of Colombo and Others (Amerasinghe, J.)
35
DR. AJANTHA WIJESINGHE PERERA
v.
UNIVERSITY OF COLOMBO AND OTHERS
SUPREME COURTAMERASINGHE. J..
WADUGODAPITIYA, J.,
GUNAWARDANA, J.,
S.C. F.R. NO. 738/96SEPTEMBER 23. 1998.
Fundamental Rights – Termination of Services – Article 12 (1) – Repeatedwarnings re – work and conduct.
The petitioner was repeatedly and in the clearest of terms both in writing andorally warned that her work and conduct were less than satisfactory in severalspecified ways. She was given the option of resigning which she refused. Theprocedures adopted by the university were adequate and fair and there was noviolation of petitioner's fundamental rights.
APPLICATION for relief for alleged infringement of fundamental rights.
Faiz Mustapha, PC with Dr. Jayampathi Wickremaratne, Gaston Jayakody andS. Felix for petitioner.
R. K. W. Goonesekera with Ms. Shiranthi Jayatiiake for respondents.
Cur. adv. vult.
January 27, 1999.
AMERASINGHE, J.
The petitioner was employed with effect from the 24th of May, 1993by the University of Colombo as a Senior Lecturer, Grade II, in Zoologyupon her accepting the terms and conditions set out in her letter ofappointment. Clause 2 of the petitioner's letter of appointment statedthat the post was permanent and that, unless the appointment was
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terminated earlier, she would be on probation for a period of threeyears or more in case it was considered expedient to extend the periodof probation. Clause 9 of the letter stated, inter alia, that if her serviceswere unsatisfactory while she was on probation, she was liable tobe discontinued at any time during the period of probation or at theend of it. Clause 12 of the letter stated: "Your appointment is a whole-time appointment and you should not accept any other paid employ-ment without the prior permission of the Vice-Chancellor". Clause 13of the letter stated that it was her duty under the general directionof the Head of Department to conduct such classes, give such lecturesand perform such other teaching duties as may be necessary, assistin the conduct of examinations (eg setting, marking, supervision andinvigilation), assist in the supervision and inspection of the work ofspecial or postgraduate students and do all in your power to promoteby research and otherwise, the advancement of your subject.
On July 13,1994, the Vice-Chancellor wrote to the petitioner statingthat the annual salary increment ordinarily due after her first year ofservice had been suspended for a period of six months for the followingreasons:
“(1) You are not available in the department when required forconsultation for departmental matters.
You are involved in outside activities without permission.
Although you have been warned a number of times thatdepartmental work must take priority and you must get priorpermission to be away from the department for outside work,you continue to be away from the department for outsidework without prior permission."
The Vice-Chancellor was, no doubt, acting on the advice andinformation furnished to him by the petitioner's Head of Departmentwho had warned her verbally against undertaking work outside theUniversity without his permission, (vide paragraphs 11 and 12 of theaffidavit of the third respondent, who was the Head of Department,dated the 7th of February, 1997).
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Dr. Ajantha Wijesinghe Perera v.
University of Colombo and Others (Amerasinghe, J.)
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The petitioner responded by her letter dated October 10, 1994,wherein she stated that she neither requested the decision taken tobe changed nor did she "accuse any persons for the decision". Thepetitioner proceeded to describe her numerous activities outside herwork as a University lecturer and stated: "I do not know how manyoccasions I have been away from the Department when I have beenrequired for consultation of Departmental work as even now I needto be away from the Department to visit other institutions among whichare CISIR, the Central Environmental Authority, NARESA and otherUniversities as well".
The petitioner stated in paragraph 13 of her affidavit of the 13thof November, 1996, that "whenever" she had to be away she had"always informed Prof. Arudpragasam or the third respondent eitherin writing or orally". The petitioner produced a letter dated the 18thof January, 1997, to the Vice-Chancellor and an affidavit dated the16th of April, 1997. In these documents Dr. Arudpragasam does notsupport the petitioner's contention that he was informed when thepetitioner undertook outside work. What Dr. Arudpragasam did saywas this: "Involvement in consultancy work is a dangerous path totread upon. If Dr. Perera is guilty of error there, there are hundredsof others in the University system who must be brought into the netand treated with equal harshness, as Dr. Perera has been treated".The Head of Department, Professor W. D. Ratnasooriya, in his affidavitdated the 7th of February, 1997, stated that although the petitionerhad informed him of her outside activities on some occasions, "therewere many occasions where she engaged in such activities withoutmy prior permission as Head of the Department and that I had warnedher verbally".
Although in paragraph 15 of her affidavit dated 13 November, 1996,the petitioner states that she replied the Vice-Chancellor "denying theallegations contained in his letters" and assumed that her "explanationhad been accepted", because she received no reply, it seems to methat what she did was to accept the charges and therefore no furtherresponse from the Vice-Chancellor was necessary. This, it seems was
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the way in which the Vice-Chancellor, acting on the advice of theHead of Department, saw it, and correctly, in my view. In her replyto the Vice-Chancellor the petitioner did not contest the allegationsmade against her. She was merely trying, she said, to "present acorrect picture" of herself. What she did was to present herself asa person heavily involved in activities outside her work as a universitylecturer.
The petitioner's letter has been submitted direct to the Vice-Chan-cellor and not through her Head of Department. However, thepetitioner's letter was sent by the Vice-Chancellor to the Head of theDepartment for his observations. The Head of the Department in hisletter dated the 1st of November, 1994, expressed the view that thepetitioner admitted “heavy outside commitments" which, in his opinion,had "badly affected" the work of the Department. Moreover, he observed,the outside activities had been performed without the approval of therelevant authorities of the University. The petitioner, he said, hadundertaken consultancy work without the required permission of theUniversity. The Head of Department concluded that he deemed it“justifiable" that the petitioner's annual increment had been suspended.
Reference might also be made to the minutes of the DepartmentalCommittee Meeting held on October 22 1993 (see also paragraph13 of the affidavit of the third respondent) wherein it is stated thatthe petitioner had apologized to the Head of Department for failingto submit the lecture and practicals schedule for 1993. This was, inmy view, an acceptance of the fact that the petitioner had been foundwanting as far as her work as a lecturer was concerned, howeverimportant or useful she may have considered her other work to be.It is also recorded that at that meeting the Dean of her faculty hadstated that while the participation of departmental staff in consultancywork was welcome, it could “only be done with the approval of theproper authority". It was submitted on behalf of the petitioner that theterms of clause 12 of her letter of appointment merely prohibited otherpaid employment whereas the petitioner's outside activities were ofa voluntary nature. Clause 13 however made it clear that the petitioner
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was subject to the general direction of the Head of her Department.As we have seen her Head of Department had required her to desistfrom outside activities, for the reason that in his view it adverselyaffected her work as a lecturer. Moreover, the petitioner was, as weshall see, unable to give an assurance that her outside work couldnot adversely affect her work as a university lecturer.
In my view, the petitioner is untruthful when she states in paragraph13 of her affidavit that she had “never been warned about being awaywithout prior permission". She was present at the Departmental meetingand, like everyone else present at that meeting, she was notified ofwhat was required of persons intending to do consultancy work andput on guard and given cautionary notice with regard to such work.Nor is the submission that she had pointed out that "the so-calledoutside work connected with research activities which she was obligedto undertake under and in terms of clause 13 of her letter ofappointment" borne out by the evidence. Significantly, this is not anexplanation she offered at any time during her tenure as a lecturer.
On July 7, 1995, the Vice-Chancellor wrote to the petitioner statingthat it had been brought to his notice that she was (1) still "involvedin outside activities without prior permission" and that (2) her"commitments towards teaching" was poor. The Vice-Chancellor wenton to state as follows: “As you have shown no improvement in yourwork, your increment has been suspended by a further period of sixmonths. Please note that if you do not show any improvement in yourwork and conduct, this suspension will be converted to a deferment".
The petitioner in her letter to the Vice-Chancellor dated the 14thof July, 1995, stated that although her salary increment had beendenied on two occasions yet she had not been given "details of theaccusations but only general statements". She demanded details. Thedemand was repeated in her letter of August, 1995. On August 3,1995, the Vice-Chancellor in his letter to the petitioner drew attentionto his letters dated July, 13, 1994, with regard to the first suspension,and to his letter of July 7, 1995, with regard to the second suspension
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and pointed out that he had summarized the reasons for thesuspensions. He added as follows : “In a series of discussions I hadwith you, the last one being in the early part of this week, I haveindicated to you in detail the circumstances which led to these decisionsand I have also advised you on proper University procedures expectedof you. Under these circumstances, I do not see any reason for writingyou a detailed letter on the subject. I hope you will act accordingto my advice on required procedural practices".
The petitioner's problem was not that she was unaware of theincrements but that she was anxious to act as she pleased in undertakingassignments outside her role as a University lecturer. She supposedthat she had to follow other pursuits and suspected that the restrictionssought to be imposed on her activities were improperly motivated. Inher letter to the Vice-Chancellor dated the 14th of July, 1995, shestated as follows: “As you are fully aware I am at present involvedin solving one of the major problems in the country ie, the management of solid waste which is causing hazard to human health. I dothis because I love my country and wish to help my people. I haveheld workshops, given lectures even at shanties and continue to advicewhoever is responsible in order to solve this problem to a certainextent. If my work bring out jealousy among my co-workers in thedepartment or in the institution I cannot be responsible for theirfeelings. I have always worked well in the field of environmentalsciences for which I was given the responsibilities not so much fromthe people inside of the university, but people outside the University".
The petitioner's difficulties arose from competing interests andmixed up priorities. What the petitioner failed to appreciate was thefact that as long as she wished to serve as a university lecturer herresponsibilities had to be determined by the "people inside the university".It was, in terms of clause 13 of her letter of appointment, her dutyto act under the direction of the Head of her department. Howeverimportant she may have considered her other work to be, her dutywas to ensure that it did not interfere with her work as a Universitylecturer. And with regard to that matter, tier Head of Department in
SCDr. Ajarttha Wijesinghe Perera v.
University of Colombo and Others (Amerasinghe, J.)41_
his affidavit (paragraph 16) stated: “I reiterate that the petitioner’s manyoutside activities did affect her University work".
In her letter dated August 4, 1995, the petitioner wrote to the Vice-Chancellor setting out projects she intended undertaking outside herUniversity work and sought the permission of the Council to carry outthose activities (3R3). The Vice-Chancellor sought the views of theHead of her Department on the question whether permission couldbe granted without prejudice to her commitments! The minutes on theletter make it clear that he was not in a position to recommend theapplication, adding: "I still find she does not take the work of Dept,seriously". On the 4th of September, 1995, the Dean of the Facultyof Science wrote to the petitioner that he could recommend herapplication to the Vice-Chancellor for permission to undertake theoutside work referred by her in her letter of 4 September, 1995, onlyif he was convinced that her "involvement mentioned in the activitieswill in no way be prejudicial to [her] commitments to the Departmentof Zoology". He therefore sought a guarantee from the petitioner thatthe activities will in “no way interfere with [her] commitments to theDepartment of Zoology, Faculty of Science and University of Colomboas a whole”. The petitioner makes no mention of the Dean's letter,nor is it in evidence that she responded to it. The Dean's letter isof importance because it clearly shows what the University's concernswere and dispels the suggestion of ulterior motives referred to by thepetitioner, for instance, in her letter of March 8, 1996.
On November 2, 1995, the Vice-Chancellor wrote to the petitionerstating that, since there had been no improvement in her work andconduct during the period following the suspension of her increments,the Council had, as it had earlier warned, decided to defer her salaryincrement ordinarily due on May 24, 1994, for the following reasons:
"1. Irresponsibility in examination matters such as frequent delaysin marking of answer scripts, careless and erratic behaviour inmarking scripts and carelessness in the preparation of questionpapers.
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Insubordination, non-co-operation and failure to carry outinstructions of the Head of Department regarding official depart-mental matters.
Involvement in outside activities without prior permission.
Creating unnecessary problems for the management of theDepartment".
The petitioner was informed that the council had also decided tosuspend the salary increments ordinarily due on May 24. 1995, bya period of six months and to review her conduct in respect of officialmatters in November, 1995, to determine what course of action wasto be taken in regard to her contract of employment with the University.
According to the minutes of the meeting of the University councilheld on April 10, 1996, "after a lengthy discussion", it was decidedthat the petitioner should be required to show cause as to why herservices should not be terminated.
On February 29, 1996, the Vice-Chancellor wrote to the petitionerrecalling the previous history of the suspension and deferment ofannual salary increment and stating that there had been noimprovement in her work and conduct. The Vice-Chancellor stated thatthe council had at its meeting decided to call for her explanation asto why her services should not be terminated "for the following reasons,inter alia":
"Irresponsibility in examination matters: –
Delays in marking answer scripts. As a result the release ofresults in an examination was delayed and a separate BoardMeeting had been held only for Zoology.
Erratic and careless marking. In some instances marks havebeen given more than what is allocated in the marking scheme.
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Dr. Ajantha Wijesinghe Perera v.
University of Colombo and Others (Amerasihghe, J.)
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On some occasions marks have been allocated to answerscrossed off by the candidate.
Setting questions in a practical paper on subjects which werenot taught by you but by another lecturer. As a result the samespecimen has been given in 02 spots in the same examination.
(cl) Irresponsibility in handling the packets of answer scripts.Packets were handed over to other examiners by you withoutenclosing copies of the question paper which had alsocontributed to the delay in releasing marks.
Involvement in outside activities without prior permission.Undertaking lectures in another University without priorpermission from the Vice-Chancellor.
Not responding to letters addressed to you by the Head of theDepartment."
The petitioner responded in her letter dated March 8. 1996. Theletter of the petitioner and the observations of the Head of herDepartment were referred to by the Chairman at a meeting of theUniversity council held on April 10 1996. Because it was "acomplicated matter and the relevant material was too extensive forthe entire council to handle", it was decided to appoint Dr. C. S.Weeraratne, a member of the council, to look into all aspects of thecase and report to the council. This decision was conveyed to thepetitioner by the Vice-Chancellor in his letter dated April 19, 1996.
Discussions were held between the petitioner and Dr. Weeraratneon April 18 and the petitioner in her letter dated April 23, 1996,provided Dr. Weeraratne with further information.
In the meantime, the council decided to extend the petitioner'speriod of probation by a period of six months with effect from May,24,1996. Having considered the report of Dr. Weeraratne, the petitioner
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was informed by the Vice-Chancellor in his letter dated May 17, 1996,that her performance in teaching, examination work and involvementin activities outside the University would be closely monitored duringthe extended period of probation. The petitioner was warned that, ifno improvement was shown during that period, action would be takenin terms of clause 9 of the letter of appointment to discontinue herservices.
The petitioner in her letter of May 27, 1996, to the Vice-Chancellorprotested against the decision of the council to extend her period ofprobation and she alleged that her salary increment had been “stoppedfor no rhyme or reason", and that the extension to the period ofprobation was made “mala fide, without proper inquiry and findings”.The petitioner's letter and other correspondence was tabled at ameeting of the council on July 10, 1996. A report from the Head ofthe Department of Zoology relating to the petitioner's unsatisfactoryperformance in the matter of marking answer scripts was also tabled.The council decided to appoint the Professor of Biochemistry of theUniversity of Colombo and the Professor of Zoology of the Universityof Sri Jayewardenepura to report on the complaint of the Head ofthe Department of Zoology. At a meeting of the council held on August14, 1996, the Dean of the Faculty of Science reported that there hadbeen "no improvement in Dr. (Mrs.) Perera's attidude towards workas she had delayed marking answer scripts again". The reports ofthe Professor of Zoology, Sri Jayewardenepura, and the Professor ofBiochemistry of the University of Colombo, as well as a report fromthe second examiner on Comparative Anatomy were tabled at ameeting of the council on September 11, 1996. It was evident thattheir opinions of the petitioner as an examiner were unfavourable.According to the minutes of the meeting, the council decided that,since the petitioner had shown no improvement, her services shouldbe terminated. The council, however, was of the view that theVice-Chancellor, the Dean of the Faculty of Science and the Headof the Department of Zoology should meet the petitioner, explain herdeficiencies, and offer her the option of resignation. The meeting washeld on September 20, 1996. The Vice-Chancellor traced the history
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of the case, referring letter by letter to the correspondence with thepetitioner. The petitioner was unwilling to resign. The Vice-Chancellorrequested her to think over the matter and inform him so that herdecision could be conveyed to the council. The petitioner's positionremained unchanged. The council at its meeting on October 9, 1996,decided to terminate the services of the petitioner, and that decisionwas conveyed to her by the Vice-Chancellor's letter dated October11, 1996.
On the 13 of November, 1996, the petitioner made anapplication to this court alleging that her fundamental rights guaranteedby Article 12 (1) of the Constitution had been violated by the respond-ents and praying, inter alia, for a declaration that the decision of theUniversity council taken on the 9th of October, 1996, to terminate herservices as a lecturer was null and void. Leave to proceed was grantedon the 20th of November, 1996.
Having regard to the facts set out above, I find it impossible tohold that the petitioner was treated in an arbitrary or unfair manneror that the deicision to terminate her services was without foundationor that her case had not been considered after due inquiry. Thepetitioner was repeatedly and in the clearest of terms both in writingand orally warned that her work and conduct were less than satis-factory in several specified ways. The petitioner's work and conductwas evaluated by the University council from time to time after lengthydiscussions on the basis of reports not only from the Head of herDepartment and the Dean of her Faculty but also others includingDr. Weeraratne and two professors, one of whom was from anotherUniversity. The procedures adopted by the University were in my viewadequate and fair. I therefore hold that the termination of her serviceswas not in violation of Article 12 (1) of the Constitution. The petitionis dismissed without costs.
WADUGODAPITIYA, J. – I agree.
GUNAWARDANA, J. – I agree.
Petition dismissed.