017-SLLR-SLLR-1997-2-RAJAKARUNA-v.-DE-SILVA-MINISTER-OF-HOUSING-CONSTRUCTION-AND-PUBLIC-UTI.pdf
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Rajakaruna v. De Silva, Minister of Housing, Construction
and Public Utilities and Others (Dr. Shirani Bandaranayake, J.)
209
RAJAKARUNA
v.
DE SILVA, MINISTER OF HOUSING, CONSTRUCTIONAND PUBLIC UTILITIES AND OTHERS
SUPREME COURT.
DHEERARATNE, J.
DR. SHIRANI BANDARANAYAKE, J ANDGUNAWARDENA, J.
S.C. APPLICATION NO. 201/95.
MARCH 24, 1997.
Fundamental Rights – Constitution, Articles 12(1) and (2) – Time limit for filingpetition – Equal treatment – Discrimination on political grounds.
Although the petition to the Supreme Court was out of time, the Court wasprepared to consider it on the merits as the petitioner was not represented byCounsel.
The allegation of victimization and violation of fundamental rights by transfer wasnot maintainable as the transfer was valid. The petitioner’s record of service wasdismal.
The evidence firmly suggests that the petitioner is actually a supporter of thepresent Government and there are no grounds for the allegation of victimizationbecause of political affiliation.
APPLICATION for violation of fundamental rights.
Petitioner in person.
R.K. W. Goonesekera with Ms. S. Jayatiiake for 2nd, 4th and 5th respondents.
S.Rajaratnam, S.C. for 1st, 7th and 9th respondents.
Cur. adv. vult.
May 09,1997.
DR. SHIRANI BANDARANAYAKE, J.
The petitioner is an employee of the National HousingDevelopment Authority since 12th February, 1986. At the time thispetition was filed he was employed as a Class IX office peon. He wasfirst recruited as a security officer (P1) and thereafter he waspromoted to the post of office peon Grade IX on 01.02.1990 (P1A),and made permanent in the post of office peon Class XI on
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01.01.1001 (P1B). From 01.07.94, the petitioner has been serving inthe Rent Board of Review at Vipulasena Mawatha, Maradana aspeon/labourer.
Since19.08.1992, the petitioner had been facing a series ofdifficulties regarding the purchase of a plot of state owned land andmatters connected to building a house on that land. These difficultieshad led to the petitioner making a complaint at the Homagama PoliceStation and lodging a complaint at the Police Headquarters inColombo against the Homagama Police.
The petitioner averred that every time when he was penalized, hesought relief through the Human Rights Centre of the Sri LankaFoundation; that this conduct, according to the reliable information hereceived, made the 1st respondent, the Minister of Housing,Construction and Public Utilities angry as he considered it a personalaffront. Also according to the petitioner, he has been singled out anddiscriminated as a United National Party supporter, on account of aletter written by him to His Excellency the then President on15.11.1992 (P2).
The petitioner states that he received a letter from the 4threspondent, the Assistant General Manager (Administration), NationalHousing and Development Authority, transferring him from Colomboto Hambantota District Office (P14). The petitioner was released fromColombo on 18.05.1995 for this purpose (P14A). The petitionerappealed on 16.05.95 against his transfer (P15). He sought reliefthrough the 3rd respondent, Director/Commission for the Eliminationof Discrimination & Monitoring of Fundamental Rights (P15A). He senta second appeal on 26.05.95 (P16). 3oth his appeals were rejected(P17 & P17A). The petitioner also wrote to the 1st respondent directlystating his grievance (P18). Finally, the petitioner received a letterdated 15.06.95 from the 4th respondent ordering him to report forwork on or before the 7th day after receiving the said letter (P19).
The petitioner filed this application on 23.06.1995 and thedirections given by the letters P14 dated 09.05.1995, P17 dated01.06.1995, P17(B) dated 06.06.1995 and P19 dated 15.06.1995
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Rajakaruna v. De Silva, Minister of Housing, Construction
and Pudlic Utilities and Others (Dr. Shirani Bandaranayake, J.)
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were stayed by this Court pending the hearing and determination ofthe application.
The petitioner contends that since 07.09.94 – to date the 1st, 2nd,4th, 5th, 6th and 7th respondents have by a series of acts maliciouslyvictimised and discriminated against him violating his fundamentalrights. He further contends that due to the transfer made by the 1st,2nd and 4th respondents his fundamental rights guaranteed byArticles 12(1) and 12(2) have been violated.
The respondents have submitted that the petitioner’s application hasnot been made in compliance with the provisions of Article 126, as ithas been filed more than one month after the alleged violation,namely the transfer from Colombo to Hambantota District Office.Therefore, the respondents submit that the application should berejected in limine.
The questions before us are:
whether the petition is 'out of time':
whether the petitioner was denied 'equal treatment'; and
whether he was discriminated on political grounds.
The petitioner was transferred from Colombo to Hambantota on
(P14) and he was released from Colombo for this purposeon 26.06.95. Even if the latter date, viz., the date of his release fromColombo, is taken into consideration it is clear that the petitioner hasnot come before the Supreme Court within the stipulated time limit. Itwas contended by the petitioner that the delay was due to hispreferring appeals against the transfer. However, Mr. R. K. W.Goonesekera, Learned Counsel for the 2nd, 4th and 8threspondents, contended that the delay due to preferring appealsdoes not give the petitioner extra time to come before the SupremeCourt.
The petitioner has sent an appeal to the Chairman/N.H.D.A. on
(P15). A second appeal was sent on 25.09.95 to theChairman/N.H.D.A. requesting him to reconsider his transfer (P16). A
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third appeal was sent to the Minister, Housing, Construction andPublic Utilities with a copy to the Chairman/N.H.D.A. on 06.06.95(P18) and a fourth appeal was sent to the Chairman/N.H.D.A. on
(P20).
Responding to the petitioner’s appeals, replies were sent to him on
(P17) and 06.06.95 (P17B). A further letter was sent to thepetitioner on 15.06.95 by the Assistant General Manager(Administration) informing the petitioner that if he is unable to reportfor work in Hambantota within 7 days of the receipt of the letter, hewould be treated as having vacated his post (P19).
Although the petitioner may not have sought the intervention of thisCourt strictly within the time specified in Article 126(2), we wereinclined to consider his case on merits as he was not represented byCounsel.
The 4th respondent averred that the Assistant Commissioner,Department of National Housing had by letter dated 23.03.95,requested that the petitioner be transferred from the Rent Board ofReview, Maradana, with immediate effect (4R10). However, noimmediate action had been taken regarding this request. Thepetitioner was transferred to Hambantota with immediate effect on
and this was at the request of the Assistant Commissioner,Department of National Housing. The 4th respondent further averredthat the petitioner’s transfer was not politically motivated. Also thepetitioner was not singled out for transfer. There had been twenty-twoother employees of the N.H.D.A. who were transferred in 1995. Hisappeals against the transfer had been rejected as his transfer wasmade due to exigencies of the service and not for any collateralpurpose.
The 4th respondent further averred that the petitioner had beencharged with various acts of misconduct during his period of servicein the N.H.D.A. Accordingly, on 21.11.87 the petitioner wasinterdicted on charges of misconduct (4R13). A charge sheet wasissued to the petitioner (4R14). After a domestic inquiry the petitionerwas found guilty of some of the charges. However, on sympathetic
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Rajakaruna v. De Silva, Minister of Housing, Construction
arc P„c :c Utilities and Others (Dr. Shiran, Bandaranayake. J.)
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grounds, petitioner’s services were not terminated but he wasdemoted from Grade IX to GRADE X (4R15 and 4R16).
On 14.02.92, the petitioner was warned by the Manager/Maththegoda Housing Scheme on his conduct in the work place. Asthe petitioner disregarded the warnings issued to him, a request wasmade on 24.04.92 for the petitioner’s transfer from the MaththegodaHousing Scheme. Thereafter, a letter was issued to the petitioner on
warning him that disciplinary action would be taken againstthe petitioner if further complaints against him were received (4R17,4R18 and 4R19). After an inquiry, it was recommended by theManager/lnquiries on 04.05.92 that the petitioner be transferred fromthe Maththegoda Housing Scheme (4R20). On 11.02.94, a chargesheet was served on the petitioner alleging various acts ofmisconduct (4R21).
The letter of appointment issued to the petitioner clearly states thatthe petitioner should be prepared to serve in any part of Sri Lanka ifrequested to do so (P1-para 9). The petitioner while accepting thepost had agreed to this condition. From the time the petitioner startedhis employment in 1986, he has served in Colombo. The employmentrecord of the petitioner and the correspondence between theAssistant Commissioner, Department of National Housing and the 4threspondent indicate that the Assistant Commissioner wanted to getthe petitioner transferred out of his office. His record of service hasbeen dismal.
In the circumstances, I am of the view that the transfer of thepetitioner was valid and that in no way violates his fundamental rightto equal treatment. The petitioner was fully aware that he was in atransferable service and he had consented to serve in any part of thecountry. For the reasons set out above, I declare that the petitioner’sfundamental rights under Article 12(1) of the Constitution have notbeen violated.
The petitioner’s second allegation is that he has beendiscriminated, on the basis of his political affiliations. His contention isthat due to a letter written by him to the then President in 1992 (P2),
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he has been singled out and discriminated as an alleged supporterof the United National Party.
According to P2, the petitioner has praised the then President forthe leadership he has given to the country and has pledged hissupport. The petitioner has also made a request to assist him toobtain a loan in order to purchase a small piece of state land 5.6perches in extent situated in the Dambugahawatta Housing Scheme.Other than this letter (P2) there is no material to show that thepetitioner was involved with the United National Party. On the otherhand, the petitioner had been the Vice President of the Sri LankaNidahas Sevaka Sangamaya of the N.H.D.A., a Union whichsupported the present Government. Furthermore, the petitioner hadadmitted that he was instrumental in establishing the said union(p 18 – p.1). The evidence therefore, firmly suggests that thepetitioner is actually a supporter of the present Government.
There is no material upon which this Court can conclude that thepetitioner was victimized due to his political affiliation. In thesecircumstances, I declare that the petitioner's fundamental rightsunder Article 12(2) of the Constitution have not been violated. Theapplication is dismissed, but without costs.
DHEERARATNE, J. – I agree.
GUNAWARDENA, J. – I agree.
Application dismissed.