035-SLLR-SLLR-1999-V-1-PEIRIS-v.-WIJESURIYA-DIRECTOR-OF-IRRIGATION-AND-OTHERS.pdf
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Peiris v. Wijesuriya, Director of Irrigation and Others
295
PEIRIS
v.WIJESURIYA, DIRECTOR OF IRRIGATION AND OTHERS
SUPREME COURTAMERASINGHE, J.,
GUNAWARDANA, J. ANDGUNASEKERA, J.
S.C. APPEAL NO. 53/98C.A. APPLICATION NO. 458/96SEPTEMBER 9, 1998
Writs of certiorari and mandamus – Retirement subject to Rule 12 (1) of theMinutes on Pensions.
The petitioner who was a storekeeper in the Irrigation Department was interdictedon the detection of a shortage of goods. Before disciplinary proceedingscommenced the petitioner reached the age of 55 years; whereupon he was retiredsubject to Rule 12 of the Minutes on Pensions. Thereafter a charge-sheetwas served on the petitioner. The petitioner's explanation was rejected andhe was paid a reduced commuted pension after deducting the value ofthe shortage. The petitioner urged that no disciplinary inquiry was held observingthe time limits laid down by a circular issued by the Secretary, Ministry of PublicAdministration and that the retirement subject to Rule 12 (1) of Minutes onPensions was illegal as disciplinary proceedings were not pending or contemplatedat the time of his retirement as required by that Rule.
Held:
The time limits laid down by the circular were directory and hence, the failureto observe them did not make the acts of the respondent invalid and though nodisciplinary proceedings were pending at the time of the petitioner’s retirementdisciplinary proceedings were contemplated.
Case referred to:
Wilbert Godawela v. Chandradasa and Others (1995) 2 Sri LR 338distinguished.
APPEAL from the judgment of the Court of Appeal.
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L C. Seneviratne. PC with Ronald Perera and Hemantha Situge for the petitioner.Ms. M. N. B. Fernando, SSC for respondents.
Cur. adv. vult.
November 17, 1998.
AMERASINGHE, J.
The petitioner was a Grade I Storekeeper in the Irrigation Departmentin charge of the Rambawewa Stores. When the petitioner complainedof the loss of a stock book which had been in his custody, thestores in his charge were sealed and a stock verification wasconducted by a Board of Survey. Shortages valued in aggregate atRs. 373,958.41 were reported by the Board of Survey. The petitionercertified that the verification was carried out in his presence and thathe was satisfied with the survey. The petitioner was interdicted witheffect from 29 September, 1986. The petitioner reached the age of55 years on 7 August, 1987 and was retired from public service. Byhis letter dated 20 November, 1987, the Additional Derector of Irri-gation informed the petitioner that the petitioner had been retiredsubject to Rule 12 of the Minutes on Pension. A charge-sheet dated14 December, 1987, was served on the petitioner. The petitioner'sexplanation was rejected, although the value of the shortageswas reduced to Rs. 190,716/54. After deducting the sum ofRs. 190,716/54, the petitioner was paid a sum of Rs. 67,304/78 ashis commuted pension. An appeal to the Public Service Commissionfor relief was refused.
The petitioner then moved the Court of Appeal for –
a Writ of Certiorari quashing the order of interdiction;
Writs of Mandamus directing the respondents to pay (i) thepetitioner's salary and emoluments from the date of interdiction untilthe date of retirement; and (ii) the petitioner's salary and
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Peiris v. Wijesuriya, Director of Irrigation and Others(Amerasinghe, J.)
297
emoluments on the basis of extensions in service the petitionermight have been entitled to until he reached 60 years of age. TheCourt of Appeal held that the petitioner was not entitled to thewrits prayed for.
The petitioner appealed to the Supreme Court. It was urged onhis behalf that the Order of interdiction should be quashed becauseit was not made in conformity with P17. P17 was a Circular Letterissued by the Secretary of Ministry of Public Administration addressedto "All Secretaries of Ministries and Heads of Departments: on thesubject "Expeditious Disposal of Disciplinary Inquiries". The letter,among other things, stated that Disciplinary Authorities were requestedto ensure that (i) the charge-sheet against an officer under interdictionis issued within one month of the date of interdiction; (2) the Tribunalof Inquiry is appointed within two weeks of receipt of reply to thecharge-sheet; and (3) the disciplinary inquiry is completed within threemonths from the date of appointment of the Tribunal.
Admittedly, the recommended time limits were not observed. Onthe other hand, the time limits were not inflexible and absolute. Theywere expected to be followed in ordinary cases. However, the lastsentence of the Circular letter contemplated cases in which the idealstandards might be departed from, for it stated that the "limits shouldstrictly be complied with unless there is good cause which preventscompliance". As explained by the Director of Irrigation in his affidavit,"the facts of this case necessitated investigations of a considerablelength of time which prevented compliance with the said Circular". Inthe circumstances, the failure to observe the directory time limits wouldnot in my view render the acts of the respondents invalid.
The petitioner was retired subject to Rule 12 (1) of the Minute onPensions which states as follows: "Where the explanation tenderedby a public servant against whom, at the time of his retirement frompublic service, disciplinary proceedings were pending or contemplatedin respect of his negligence, irregularity or misconduct, is unsatisfactoryby the competent authority, the [relevant authority] may either withhold
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or reduce any pension, gratuity or other allowances payable to suchpublic servant under these Minutes".
It was not in dispute that the petitioner's explanation was regardedas "unsatisfactory11. Learned counsel for the petitioner, however,submitted that not only was there no inquiry but that such an inquirywas not “contemplated" and that therefore retirement under Rule 12was “illegal, unwarranted, mala fide, and in excess of the powers ofthe respondents.
Stock verifications had revealed certain shortages and the petitionerhad been interdicted in September, 1986. There were no pendingdisciplinary proceedings; but I am unable to accept the view thatdisciplinary proceedings were not “contemplated". What was the purposeof the long-drawn-out investigations except for the purpose of preciselyascertaining the losses and fixing responsibility for such losses? Thiscase was quite unlike Wilbert Godawela's case01 which learned counselfor the petitioner cited. In that case there was no disciplinary pro-ceedings pending at the time of retirement; nor were such proceedingscontemplated.
For the reasons stated in my judgment, I affirm the decision ofthe Court of Appeal and dismiss the appeal. In all the circumstances,there will be no costs.
GUNAWARDANA, J. – I agree.GUNASEKERA, J. – I agree.
Appeal dismissed.