060-SLLR-SLLR-2003-V-2-PRIYANTHA-AND-OTHERS-v.-CEYLON-PETROLEUM-CORPORATION-AND-OTHERS.pdf
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Priyantha and others v Ceylon Petroleum Corporation and others
(Fernando, J.)
383
PRIYANTHA AND OTHERSv
CEYLON PETROLEUM CORPORATION AND OTHERS
SUPREME COURTFERNANDO, J.
ISMAIL, J. ANDJAYASINGHE, J.
S.C.NO. 103/2002 FR
2 JULY, 2003
Fundamental Rights – Termination of petitioners’ services on a Cabinet deci-sion – Applicability of the Cabinet decision to the petitioners – Constitution,Article 12(1).
The services of the petitioners were terminated in January 2002 pursuant to aCabinet decision dated 26.12.2001 which nullified all appointments and pro-motions during the period between the dissolution of Parliament and theGeneral Election of 2001.
The petitioners were Security Assistants who had been recruited on contractin and after 1988. They participated in an "industrial action" in August 2000demanding permanent employment and their services were summarily termi-nated on 22.8.2000.
During the period between the dissolution and General Election they were re-instated on 17.12.2001 on the same terms and conditions. Thereafter theywere made permanent with effect from 01.10.2001.
Held :
The Cabinet decision which nullified "appointments and promotions” dur-ing the elevant period had no application to the petitioners. Hence thetermination of their services was violative of Article 12(1) of theConstitution.
Per Fernando, J.
"It is clear that the mischief at which the Cabinet decision was legiti-mately directed was the burdening of the corporation by recruiting sur-plus staff and giving improper promotions".
APPLICATION for relief for infringement of fundamental rights.
Chandima Weerakkody with Nandun Fernando for petitioners.
Upul Jayasuriya with Nalin Laduwahetty for respondents.
Cur.adv.vult
384
Sri Lanka Law Reports
[2003) 2 Sri L.R
September 12, 2003FERNANDO, J.
The petitioners complain that their fundamental rights under 01Article 12(1) were infringed by the Ceylon Petroleum Corporation,the 1st respondent, by the termination of their services by lettersdated 12.01.2002. Those letters gave as the reason for terminationthat the Cabinet of Ministers had decided on 26.12.2001 that allappointments and promotions during the period between the dis-solution of Parliament and the General Election of 2001 should beinvalidated.
The petitioners were Security Assistants who had been recruit-ed (mainly in and after 1998) on a contract basis for an indefinite 10period. They participated in an "industrial action" on 21st to 23rdAugust 2000 demanding permanency in employment, and theirservices were summarily terminated by letters dated 22.8.2000.
During the period between dissolution and General Election, byletters dated 17.10.2001 the Personnel Manager of the 1st respon-dent (with the prior approval of the then Chairman) informed thepetitioners that they had been re-instated on the same terms andconditions. Thereafter, in pursuance of a Public AdministrationCircular providing for the grant of permanency to casual, temporaryand contract employees who had completed a continuous period of 20service of not less than 180 days, the petitioners were informed thatthey had been made permanent with effect from 01.10.2001. Thoseletters stated that permanancy was subject to their having com-pleted 180 days of continuous service prior to 01.10.2001, theirhaving the qualifications stipulated on the approved scheme ofrecruitment, and there being vacancies in the approved cadre. Therespondents have not placed any material to show that the peti-tioners haft failed to satisfy those conditions and/or that the termi-nation of their services was on one of those grounds.
Although it is true that on 26.12.2001 the Cabinet did take a 30decision to invalidate all appointments made during the relevantperiod, yet on 30.01.2002 the Cabinet decided to suspend its pre-vious decision and to review all appointments and promotions inorder to determine whether any of them had been made outside thenormal procedures.
CA
Priyantha and others v Ceylon Petroleum Corporation and others
(Fernando. J.)'
Learned Counsel for the petitioners contended that the Cabinetdecision of 26.12.2001 was not applicabe to them but only to"appointments and promotions", while in their case there were nei-ther appoinments nor promotions, but only "re-instatement in ser-vice". It is clear that the mischief at which the Cabinet decision was 40legitimately directed was the burdening of the Corporation byrecruiting surplus staff and granting improper promotions. The sum-mary dismissal of the petitioners for industrial action may well havebeen considered a disproportionate penalty, for which re-instate-ment was justified. I hold that the Cabinet decision was inapplica-ble to the petitioners.
But even if it is assumed that the Cabinet decision of 26.12.2001did apply to ''re-instatements", the petitioners must neverthelesssucceed. Firstly, that decision would have been arbitary if it pur-ported to apply to a bona fide re-instatement in service pursuant to 50a review of a dismissal. Secondly, when that decision was varied on30.01.2002, the 1st respondent was obliged to re-examine its pre-vious decision to terminate the services of the petitioners becausethe legal justification for that decision had disappeared.
I therefore hold that the termination of the services of the peti-tioners by letters dated 13.01.2002, and the failure to rescind suchtermination after the second Cabinet decision was arbitrary andunreasonable, and in violation of Article 12(1). I order the re-instate-ment of the petitioners with effect from 1st October 2003, without abreak in service but without back wages, and direct the 1st respon- 60dent to offer the petitioners the benefit of any voluntary retirementscheme, which was offered to other employees holding compara-ble posts, and which was in force in and after 13.01.2002. The 1strespondent will pay the petitioners one set of costs in a sum ofRs. 25,000/-
ISMAIL, J.-I agree.
JAYASINGHE, J.-I agree.
Relief granted.