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JAYASINGHEv
THE NATIONAL INSTITUTE OF FISHERIES ANDNAUTICAL ENGINEERING (NIFNE)AND OTHERSSUPREME COURTS.N.SILVA, CJ.
BANDARANAYAKE, J . ANDDE SILVA, J.
S.C.(FR) 639/20016 JUNE, 27 JULY AND6 AUGUST, 2003
Fundamental Rights – Manner of pleading the case for the petitioner – Rule44 (a) of the Supreme Court Rules – Rule against prolixity – Use of defama-tory language in pleadings.
The petitioner who was Director of the 1st respondent Institute from20.12.1999 was interdicted by letter dated 8.11.2001. He had claimed the rightto appointment as the Director General of the Institute and filed FR ApplicationNo. 692/2000 and a writ application in the Court of Appeal, CA1569/2000 both
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of which were dismissed for willful suppression of material facts. Two other writapplications are pending judgment.
The petitioner also filed the present petition. Despite its length and prolixi-ty, he failed to aver how his interdiction had violated his rights under Article12(1) of the Constitution. The language used in his petition is slanderous andabusive of the character of the respondents.
Held
A preliminary objection that the petitioner had failed to satisfy Rule 14(1 )(a)of the Supreme Court Rules must be upheld. That Rule requires the peti-tioner to set out a plain and concise statement of'facts and the infringe-ment of the fundamental right. These guidelines are similar to those set outin sections 40(d) and 46(2) (a) and (b) of the Civil Procedure Code inrespect of pleadings.
The use of slanderous and abusive words in respect of the respondentswould also negate compliance with the above guidelines in a Public Lawremedy. The right to seek relief for infringement of fundamental rightsshould not be made a means of defaming persons who would otherwise beentitled to vindicate their rights in respect of such allegation, if they arepublished.
APPLICATION for relief for infringement of fundamental rights (preliminaryobjection.)
Kuwera de Zoysa with Senaka de Saram for petitioner
D.S.Wijesinghe, P.C.with C.Samaranayake for 1st, 5th, 8th, and 9th respon-dents.
Cur.adv.vult.
March 29, 2004
SARATH N. SILVA, C.J.
The Petitioner joined the public service as a lecturer in FishingGear and Methods attached to the Training Division of the Ministryof Fisheries with effect from 1.3.1982. He continued in service ofthat Ministry, inclusive of a stint as a volunteer in the Sri LankaNavy, upto 1990. He was granted 5 years no-pay leave for employ-ment abroad covering the period January 1990 to January 1995and resumed duties in the Ministry on 1.9.1994. He was appointedby the Public Service Commission as Director of the National
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Institute of Fisheries Training (NIFT), being a Department within theMinistry of Fisheries with effect from 1.6.1995.
The work of the NIFT was taken over by another Institute estab-lished under Act, No.36 of 1999. The new Institute came into oper-ation with effect from 20.12.1999 and is known as the NationalInstitute of Fisheries and Nautical Engineering (NIFNE), being the1st respondent. The petitioner was appointed as a Director ofNIFNE with effect from 20.12.1999 (1R9).
The petitioner claims that he should have been appointed asDirector-General of NIFNE. In terms section 14(1) of the Act, theDirector-General is the principal executive officer and the principalacademic officer of the Institute and is appointed by the Minister onthe recommendation of the Council.
The petitioner has filed one application in this Court alleging thathis fundamental right guaranteed under Article 12(1) of theConstitution has been infringed by the failure to appoint him asDirector-General. He has also filed 3 applications in the Court ofAppeal seeking Public Law Remedies such as writs of certiorari,prohibition and mandamus in respect of the same appointment.Many averments in the lengthy pleadings filed by the petitioner inthese applications relate to the claim of the petitioner to be theDirector-General and to a transaction in which the property of theGovernment used by the NIFT including certain buildings havebeen leased to a private sector establishment (6th respondent).The petitioner alleges that this lease of property has caused eco-nomic loss to the Government and has been entered into with thefraudulent intent. At some point of time it appears that theGovernment decided to terminate the lease in favour of the 6threspondent, resulting in the 6th respondent filing an application inthis Court alleging an infringement of its rights guaranteed byArticle 12(1), (S.C. Application No. 896/99).
After leave to proceed was granted in that application, the par-ties to that application agreed upon terms of settlement, whichincluded the termination of the lease and certain payments beingmade to the 6th respondent, the petitioner sought to intervene inthat application objecting to the settlement which the NIFNE wasseeking to enter into with 6th respondent. That settlement has
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thereafter taken effect and the petitioner’s application for interven-tion was refused by this Court.
The long and meandering averments in 113 paragraph of thepetition that run into 24 pages contain an account of the petitioner’s
life, education and career starting from the time he went to schoolthrough to his higher education, the employment in the Ministry,employment on overseas leave, work in the NIFT and the NIFNEupto the stage at which he was interdicted by letter dated
(P84).
The 1st respondent has raised a specific objection on theground that the petitioner is not entitled to relief since the petitionhas not been prepared in compliance with Rule 44(1) (a) of theSupreme Court Rules of 1990.
This rule requires a person seeking relief in respect of aninfringement or an imminent infringement of a fundamental right byexecutive or administrative action to:
“set out in his petition a plain and concise statement of thefacts and circumstances relating to such right and the infringe-ment or imminent infringement thereof, including particulars of
. the executive or administrative action whereby such right hasbeen, or is about to be, infringed, where more than one righthas been, or is about to be infringed, the facts, and circum-stances relating to each such right and the infringement orimminent infringement thereof shall be clearly and distinctlyset out. He shall, also refer to the specific provisions or theConstitution under which any such right is claimed.”
The rule is in turn based on the provisions of section 40(d) ofthe Civil Procedure Code as to the contents of a plaint in a civilaction. This provision reads as follows:
40. “The plaintshall contain the following particulars:
a plain and concise statement of the circumstances consti-tuting each cause of action, and where and when it arose.Such statement shall be set forth in duly numbered para-graphs; and where two or more causes of action are set out,the statement of the circumstances constituting each cause ofaction must be separate, and numbered,”
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It is clear from these provisions that it is a salutary rule of plead-ings, be it a plaint in a civil action, a petition in an application for aninfringement or imminent infringement of a fundamental right or anapplication for any other Public Law remedy that the plaint or peti-tion should focus on what may be generically termed as the causeof action. In a civil action, the cause of action would be the wrongon the part of the defendant which affects the plaintiff and in respectof which relief or a remedy is sought by invoking the jurisdiction ofthe Court (vide section 5 and 6 of the Civil Procedure Code). 90Similarly in an application in respect of an infringement or imminentinfringement of a fundamental right, the focus should be on theexecutive or administrative action whereby the applicant’s funda-mental right which is claimed is infringed or about to be infringedand the invocation of the jurisdiction of this Court for just and equi-table relief. The pleading filed in Court should focus on these ele-ments iand set out a plaint and concise statement of the relevantfacts and circumstances. The provisions of section 46(2) (a) and (b)of the Civil Procedure Code lay down the guidelines that wouldapply with equal force to a plaint in a civil court or a petition filed in 100this Court as to the manner in which the relevant facts and circum-stances should be set out in the pleading. They are:
That the facts and circumstances should be stated without pro-lixity i.e. without being lengthy or long-winded;
That the facts and circumstances should be correct;
That it should not contain particulars other than those requiredto set out the cause of action (the infringement or imminentinfringement by executive or administrative action of the funda-mental right that is claimed).
As noted above the petition contains an extensive account of vir- notually the petitioner’s life story commencing from the time hereceived education in school. These particulars by far antidate theenactment of the National Institute of Fisheries & Nautical Act,No.36 of 1999. As far as the application is concerned the gravamenof the petitioner’s complaint is his interdiction contained in docu-ment P84. Ironically the petition does not even contain an aver-ment as to the manner in which the order in P84 infringed the fun-damental right guaranteed to the petitioner by Article 12(1) of the
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Constitution. There are two paragraphs in the petition concerningthe interdiction, namely paragraphs 107 and 111 contained atpages 23 and 24 of the petition. I would reproduce paragraph 11 todemonstrate the lack of relevancy on the one part and the verbosi-ty and prolixity on the other of the contents in the petition.
“The petitioner states that his efforts to counter his interdictionby the 2nd respondent for his application to intervene in S.C.Application No. 896/99(FR) and other hypothetical offences hehas never been charged with, is a direct result of his failure orrefusal of the respondents to implement the Cabinet decisionto abrogate the lease agreement, recover possession of thepremises and property (by issue of a “quit notice” as recom-mended by the Attorney-General) and use them for the real-ization of the proposal to establish NIFNE as a FisheriesUniversity, and on the contrary to act in a manner to permit thecontinued exploitation by CINEC of an illegal and void contractto their tremendous benefit and the severe detriment of theSate in general and Fisheries Training in Sri Lanka in particu-lar (by permitting CINEC to release only the hostel but contin-ue to occupy and possess all the rest of the extensive premis-es and properly for about five years after the Cabinet decisionto abrogate the treaty and recover possession of the minimumrental due) the cover-up of the attempt to defraud the State inrespect of the proposed installation of a flicked ice plant in atraining vessel, without recovery is arbitrary, mala fide, in vio-lation of the Rules of natural justice, done for a collateral pur-pose, patently illegal, null and void and of no force or avail inlaw, and violative of the petitioner’s fundamental rights toequality before the law and equal protection of the law guar-anteed by Article 12(1) and the freedom of speech and expres-sion guaranteed by Article 14(1) (a) of the Constitution.”
The vital paragraph which purports to set out the allegedinfringement of the petitioner’s fundamental rights is an incompre-hensible rigmarole.
In the circumstances I am inclined to agree with the objectionraised by the respondents, that the petition has not been preparedin the manner required by Rule 44(1) (a) of the Supreme CourtRules.
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As regards the ground based on multiplicity of actions, it is notedthat the petitioner has filed S.C.(FR) 692/2000 in December 2000challenging the steps that were being taken to appoint the 18th.respondent to the post as Director-General of the 1st respondent 160institute and relief sought was a direction on the respondent toappoint the petitioner to the post of Director-General. The applica–tjon was dismissed by this Court on 20.3.2002, inter alia on theground that the petitioner had willfully suppressed material factsfrom Court. The petitioner was also directed to pay costs of theapplication to the respondent.
The petitioner filed a writ application in the Court of Appeal No.1569/2000 seeking similar relief from the Court of Appeal. Thisapplication was dismissed by the Court of Appeal with costs, on thebasis inter alia, that there has been willful suppression of the mate- 170rial facts by the petitioner. There are 2 further applications in theCourt of- Appeal in which it appears that judgments have not yetbeen delivered. It is thus clear that the petitioner has filed a multi-plicity of proceedings against the 1 st respondent and against someof the persons who are named as respondents in this application.
There is certainly no objection to any person who is aggrievedby a course of executive or administrative action that affects hisrights seeking Public Law remedies either in the Court of Appeal orin this Court. However, this process cannot be used to inflict unduehardship to the Public institutions and the persons who are made 180respondents. It is noted that the petitioner has included scathingremarks alleging fraud and impropriety on the part of the severalnamed persons. Relevant facts and circumstances may be appro-priately set out in a pleading on the basis of the guidelines men-tioned above, but, a person seeking a Public Law remedy shouldnot use words of slanderous and abusive nature affecting the char-acter and social standing of persons who are named as respon-dents. It should be firmly borne in mind that these proceedingshave a sanctity of their own in that they are designed to uphold thefundamental rights of persons and should not be made a means of 190defaming persons who would otherwise be entitled to vindicatetheir rights in respect of such allegations, if they are published.
It is manifest in perusing the averments of the petition in thiscase that the petitioner has endeavoured to portray himself as a
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paragon of virtue who will work for the public good, whilst on theother hand the persons against whom allegations are made aredepicted as villains bent on defrauding public property. In extollingin his virtues and condemning others the petitioner has stated inparagraph 19 of the petition as follows:
“having been shocked and saddened by the prostitution of thisvital training facility to serve the narrow selfish interest of the8th respondent and other high ranking individuals in theMinistry, but being well aware of the dire need of the fisher folkand the fishing industry of this country he (the petitioner)decided to sacrifice his professionally rewarding and lucrativeemployment (his monthly salary was US$ 3000) by voluntarilycancelling the balance period no pay leave granted to him andresuming duties as Fleet Manager on 1.9.1994.”
The petitioner has in this averment endeavoured to make outthat in view of the conduct of the 8th respondent and other officersof the Ministry who misuse public property for their personal gain,he made a sacrifice, cut short his foreign employment and returnedto work in the Ministry. In paragraph 17 of the petition he has stat-ed that he took this decision in view of the election of the new gov-ernment which took place in 1994 and to assist the new Minister toreorganize Fisheries Training Institute and Training Centre that wasthen in total disarray and virtually non-functional.
The respondents have contradicted this averment of the peti-tioner and has in fact produced marked R3 a plaint filed by the peti-tioner in D.C.Colombo case No.14862/MR on 24.3.1994, againsthis former employer, whilst on no pay leave granted by the Ministry.He has stated in that plaint that the vessel he was engaged to serveon was not in a fit state and the repairs that were being done weregrossly inadequate and he urged that further repairs be done andpointed out that it would be dangerous to sail the vessel withoutsuch repairs being done. He has further stated that he protestedstrongly to the representative of his employer who came to exam-ine the vessel.
In paragraph 12 of the plaint he has stated that thereupon therepresentative instructed the owner to send a relief Master whocame on board the vessel and the petitioner was compelled to sign
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the necessary documents and leave the vessel. It is further statedthat the employer thereafter arranged the transport of the petition-er back to Sri Lanka at their expense. He has claimed in that actiona sum of US$ 8100 as the equivalent of three months’ wages inview of the summary termination of his services.
Thus it is clear that the averments in the petition to this Courtthat he sacrificed a lucrative job to serve his country is palpablyfalse.
For the reasons stated above I uphold the objections that have 240been raised by the respondents and dismiss this application. Nocosts.
In fairness to counsel whose appearance is noted above, I haveto place on record the fact that he came into the case only at thestage of argument. The petitioner has been represented in thiscase and in the several other proceedings referred to by an attor-ney-at-law who was his registered attorney and counsel.
BANDARANAYAKE, J.I agreeSILVA, J.- I agree
Preliminary objection upheld;application dismissed.
