Perera v. Sri Lanka Insurance Corporation and Others
v.SRI LANKA INSURANCE CORPORATION AND OTHERS
S.C. NO. 553/97 (FR).
JANUARY 26, 1999.
Fundamental Rights – Constitution, Article 12 (1) – Time limit – Conformitywith Article 126 (ii) of the Constitution.
On 13.7.1996 the petitioner's office had been sealed. Thereafter, on 15.7.96 hewas sent on compulsory leave. The petitioner was informed of this decision byletter of 25.7.1996 received by him on 1.8.1996. The application under Article126 was filed on 11.7.1997. On the preliminary objection to the maintainabilityof the application on the ground that it has been filed out of time, it was contendedthat keeping of the petitioner on compulsory leave from July, 1996 and the failureto revoke that order constituted a continuing violation of Article 12 (1).
It is manifestly clear that the complaint of the alleged violation of Article 12 (1)was based on the act of the respondent placing the petitioner on compulsory leave,and the present petition has been filed on 11.7.97, after the lapse of one yearfrom the date of the alleged violation.
S. L. Gunasekera with M. de Silva for petitioner.
S. A. Parathalingam, PC with Faiz Musthapha for 1st to 6th & 8th to 10threspondents.
R. K. S. Sureshchandra for 7th respondent.
M. C. Jayaratne with E. L Tirimanne for 11th to 13th respondents.
Cur. adv. vult.
Sri Lanka Law Reports
[1999) 3 Sri LR.
April 27, 1999.
The petitioner in this case has complained to this Court that on the13th of July, 1996, whilst the petitioner was in his office at the SriLanka Insurance Corporation, the 11th, 12th and 13th respondentstogether with the Secretary of the Sri Lanka Nidahas Sevaka Sangamayaof the Sri Lanka Insurance Corporation and certain other minoremployees had forcibly entered his office and informed the petitionerthat they had to seal his office on the instructions of the 1st respondent.Thereafter, the Board of Directors of the 1st respondent Corporationon the 15th of July, 1996, had taken the decision to place the petitioneron compulsory leave. The petitioner was informed of this decision byletter dated the 25th of July, 1996, which was received by him onthe 1st of August, 1996.
The petitioner states further that the respondents have acted malafide, inter alia, for the following reasons:
The petitioner was sent on compulsory leave at the requestof a political organization and/or trade union.
The respondents had failed to reinstate the petitioner eventhough the Hon. Attorney-General had advised that there wasno material to hold an inquiry against the petitioner.
The respondents have not reinstated the petitioner nor havethey taken any action against him for the last 1 year.
In the above circumstances, the petitioner has prayed for adeclaration that the petitioner's fundamental rights in terms of Article12 (1) of the Constitution have been infringed by the respondents andto direct the 1st respondent Corporation to cancel the order placingthe petitioner on compulsory leave. The petitioner has filed his petitionin the Supreme Court on the 11th day of July, 1997. Counsel forthe 1st to the 6th and 8th, 9th and 10th respondents Mr. Parathalingam
Perera v. Sri Lanka Insurance Corporation and Others(Perera, J.)
raised a preliminary objection to the maintainability of the presentapplication on the ground that this petition has been filed out of timeand should, therefore, be dismissed in terms of Article 126 (ii) ofthe Constitution. Counsel for the 7th respondent and counsel for the11th, 12th and 13th respondents associated themselves with thissubmission and moved that the petitioner's application be dismissed.Mr. Parathalingam urged that the entire case of the petitioner in regardto the alleged violation of his fundamental rights under Article 12 (1)of the Constitution, was based on paragraph (c) of the prayer to hispetition, which reads thus:
"Direct the 1st to the 10th respondents to cancel the order
placing the petitioner on compulsory leave."
Counsel submitted that according to paragraph (10) of the petition,the petitioner was sent on compulsory leave, with effect from the 25thof July, 1996 (vide P11). As stated earlier, the petition to this Courtwas filed on the 11th of July, 1997. Hence, the petitioner's applicationhas not been filed in conformity with the provisions of Article 126
of the Constitution, and therefore cannot be maintained.
Counsel for the petitioner, however, contended that keeping of thepetitioner on compulsory leave from July, 1996 and the failure torevoke the order placing him on compulsory leave constituted acontinuing violation of his aforesaid fundamental rights, and that inthe said circumstances, his application for relief was not time-barred.
Counsel also submitted that the petitioner, was never informed ofthe results of the interview held for the selection of an AdditionalGeneral Manager (Investments). He first became aware that he hadnot been selected for the above post only when the 1st respondentCorporation advertised the said post for the second time in June, 1997.The petitioner at this stage made the present application for reliefon the 11th of July, 1997, within 1 month of the said date. It washis submission that in the aforesaid circumstances the petitioner'sapplication for relief in respect of the said matter is not time-barredand is in conformity with the provisions of Article 126 (ii) of theConstitution.
Sri Lanka Law Reports
 3 Sri LR.
I have examined carefully the petition filed by the petitioner inthe present case and the prayer to the petition. It is manifestly clearthat the complaint of the petitioner of the alleged violation of hisfundamental rights guaranteed by Article 12 (1) of the Constitutionwas based on the act of the respondent placing the petitioner oncompulsory leave (vide para, (c) of the prayer to the petition).
According to the petitioner, the Board of Directors of the 1strespondent had taken a decision to place him on compulsory leaveon the 15th of July, 1996. The petitioner was informed of this decisionby letter dated 25th July, 1996, which was received by him on the1st of August, 1996 (vide P11). The present petition to this Court hasbeen filed on the 11th of July, 1997, after the lapse of one year fromthe date of the alleged violation.
Having regard to the facts and circumstances of this case, I amunable to agree with the submission of counsel for the petitioner thatplacing the petitioner on compulsory leave in July, 1996 and the failureto revoke such order constitutes a continued violation of the petitioner'sfundamental rights guaranteed by Article 12 (1) of the Constitution.
I have also considered the cases cited by Counsel for the petitionerin support of the principle that inaction in circumstances where thereis a duty to act would constitute an infringement by executiveadministrative action under Article 126 of the Constitution. I am ofthe view that the cases cited by petitioner's counsel are not strictlyapplicable to the facts of this case. I,
I, therefore, uphold the preliminary objection raised by counsel forthe respondents that this petition is out of time and should, therefore,be dismissed in terms of Article 126 (2) of the Constitution. The presentpetition is accordingly dismissed, but without costs.
GUNAWARDANA, J. – I agree.
GUNASEKARA, J. – I agree.