035-SLLR-SLLR-2002-V-1-W.-D.-B.-L.-M.-FERNANDO-v.-RANAWEERA-SECRETARY-MINISTRY-OF-CULTURA.pdf
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W. D. B. L. M. Fernando v. Ftanaweera, Secretary, Ministry of
Cultural and Religious Affairs and Others
327
W. D. B. L M. FERNANDO
v.RANAWEERA, SECRETARY,
MINISTRY OF CULTURAL AND RELIGIOUS AFFAIRS AND OTHERS
SUPREME COURTISMAIL, J„
EDUSSURIYA, J. ANDYAPA, J.
SC APPLICATION NO. 46/99MARCH 06 AND APRIL 05, 2002
Fundamental Rights – Eligibility of public officer to purchase official vehicle onretirement – Whether right to purchase such vehicle may be postponed until thetermination of continued service on contract after retirement – Uberrima fides.
The petitioner was a Senior Superintendent of Police who reached his age ofcompulsory retirement on 14. 05.1992. However, in terms of a Cabinet decision, heassumed duties as a Senior Assistant Secretary (Christian Affairs) in the Ministry ofCultural and Religious Affairs with effect from 06.05.1992 eight days prior to the dateof compulsory retirement.
By a further Cabinet decision dated 19. 08. 1998, he was appointed AdditionalSecretary in the same Ministry until 31. 12. 1998 on which date that appointmentterminated. At or about the time of such termination, the petitioner applied to purchasehis official car in terms of circular No. 24/93 dated 01.10.1993 (P6) which permittedan officer to purchase his official vehicle on retirement. In terms of that circular theapplication for purchase had to be made at the time of submitting papers for retirement.
The 1st respondent (Secretary, Ministry of Cultural and Religious Affairs) by his letterdated 2*9. 12.1998 (XI) sought clarification from the 3rd respondent (The Director ofEstablishments) whether the petitioner was eligible to purchase the vehicle. The 3rdrespondent by his reply dated 04. 01. 1999 (X2) replied that the petitioner being aperson who had been re-employed after retirement was not eligible to purchase thevehicle in the absence of Cabinet approval for such purchase. The Ministry by lettersdated 04.01.1999 and 06.01.1999 (P8 and P10) required the petitioner to return thevehicle.
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The petitioner filed an application on 18. 01.1999 alleging infringement of his rights
under Article 12 (1) of the Constitution and obtained leave to proceed and interim relief
to defer the recall of the vehicle having suppressed the information contained in (X2)
which he was in all probability aware of.
Held:
In terms of Circular P6 that came into operation on 01.10.1993 (after 16 monthsfrom the petitioner's retirement on 14.05.1992) which required an applicationfor purchase of an official vehicle on retirement, the petitioner was not eligibleto purchase the official vehicle used by him on the termination of his continuedemployment on contract.
The petitioner's conduct in particular, in obtaining interim relief showed lack ofuberrima tides. This too disentitled him to redress from court.
Cases referred to:
1. Blanca Diamonds (Pvt) Limited v. Wilfred Van Els and Two Others (1997) 1 SriLR 360.
APPLICATION for relief for infringement of fundamental rights.
Mohan Peiris with Nuwanthi Dias for petitioner.
N. Pulle, State Counsel for respondents.
Cur. adv. vult.
May 24, 2002
HECTOR YAPA, J.
The petitioner in his application has averred that while he was holding 1the post of Senior Superintendent of Police, in terms of a cabinetdecision he was appointed as a Senior Assistant Secretary (ChristianAffairs) of the Ministry of Cultural Affairs with effect from 06. 05. 1992and that he assumed duties in that capacity 8 days prior to his reachingthe age of 60 years. Thereafter, by a further cabinet decision dated19. 08. 1998 he was appointed as Additional Secretary in the sameministry and he retired from that post on 31. 12. 1998.
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W. D. B. L. M. Fernando v. Ranaweera, Secretary, Ministry of
Cultural and Religious Affairs and Others (Hector Yapa, J.)329
The petitioner claims that he was eligible to purchase his officialvehicle Mazda car bearing No. 15-9892 in terms of the Public 10Administration Circular No. 24/93. The 1st respondent had soughtclarification from the 3rd respondent as to whether the petitioner wasin fact qualified to purchase the said vehicle in terms of the saidcircular. The petitioner was so informed by a letter dated 04. 01. 1999and had also requested the return of the vehicle (P8). The petitionerwas again requested by the 2nd respondent to return the vehicleforthwith by letter dated 06. 01. 1999 (P10).
The petitioner fearing that respondents would refuse his applicationto purchase the vehicle alleged that there was an imminent infringe-ment of his fundamental right guaranteed under Article 12 (1) and 20sought a direction on the respondents to transfer the ownership ofthe said vehicle to the petitioner. In addition he sought interim reliefto direct the respondents to defer the recall of the vehicle until thefinal determination of this application. The application was supportedon 26. 01. 1999. The petitioner was granted leave to proceed inrespect of the alleged infringement of Article 12 (1) of the Constitutionand was granted interim relief as prayed for.
According to the material furnished by the petitioner, he had joinedthe Police Department as a probationary Sub Inspector on 20.06.1957.
In the year 1992, while the petitioner was holding the post of Senior 3°Superintendent of Police, he was appointed to the post of SeniorAssistant Secretary (Non SLAS) of the Ministry of Cultural Affairs andInformation on 06. 05. 1992. This appointment was made consequentto a cabinet decision dated 29. 04. 1992 on the basis of secondment.
A copy of the extract of the draft minutes of the said meeting of thecabinet of ministers held on 29.04.1992, has been marked P1. TheGazette notification dated 11. 06. 1992 in regard to the said appoint-ment of the petitioner has been marked P2 and the letter of his
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appointment as Senior Assistant Secretary has been marked P3. Asreferred to above, the petitioner has assumed duties in the said post 40of Senior Assistant Secretary just eight (8) days prior to the date ofretirement, ie 14. 05. 1992 from the Police Department on reachingthe age of 60 years. The petitioner functioned in that capacity until19. 08. 1998. Thereafter, by a cabinet decision dated 19. 08. 1998,the petitioner was appointed to the post of Additional Secretary (ChristianAffairs) of the Ministry of Cultural and Religious Affairs by the sup-pression of the existing post of Senior Assistant Secretary (ChristianAffairs) held by him. This appointment was effective till the end ofDecember, 1998. The copy of the said cabinet decision has beenmarked P4, and the letter of appointment to the post of AdditionalSecretary which was on a contract basis has been marked P5. It wouldappear therefore that the petitioner's contract of employment as soAdditional Secretary in the Ministry of Cultural and Religious Affairsended on 31. 12. 1998.
At the hearing of this application learned counsel for the petitionersubmitted that for all practical purposes the petitioner's date ofretirement from the Public Service should be reckoned as from
12. 1998. Counsel contended that Public Administration CircularNo. 24/93 (P6) Part III (1) provided that an officer who is entitledto an official vehicle, and had been assigned a vehicle, may onretirement be permitted to purchase the vehicle he has been using.Further, Part III (3) of the said Circular provided that officers with 60continuous, uninterrupted service up to the date of retirement or onextension after reaching the age of 55 years are eligible to apply.Hence, counsel submitted that the petitioner was eligible to purchasethe official vehicle assigned to him in his capacity as Senior AssistantSecretary and Additional Secretary (Christian Affairs). It was furthersubmitted that according to the circular, it was the 1st respondentwho was the authority to whom an application to purchase the vehicle
SC W. D. B. L M. Fernando v. Ranaweera, Secretary, Ministry of
Cultural and Religious Affairs and Others (Hector Yapa, J.)331
had to be made and once such an application was made, 1st re-spondent was required to take necessary action in terms of the circular.Accordingly, the petitioner had submitted to the 1st respondent an ?oapplication to purchase the vehicle in question, and the 1st respondentby his letter dated 16. 12. 1998 marked P7, had recommended andforwarded the said application to the 3rd respondent. The 1st respond-ent after having recommended the petitioner's application, informedthe petitioner by his letter P8 that he had sought clarification fromthe 3rd respondent, as to the petitioner's eligibility to purchase thevehicle in terms of the aforesaid circular and requested him to returnthe vehicle until the receipt of a reply from the 3rd respondent.Thereafter, when the petitioner by his letter dated 04. 01.1999 markedP9, requested the 1st respondent to expedite action so that he could sopurchase the vehicle in terms of the circular, the 2nd respondent byP10 informed the petitioner that action had been taken regarding hisapplication and requested the petitioner to return the vehicle forthwith,since it was State property.
Learned counsel for the petitioner therefore argued that the actionon the part of the respondents to deprive the petitioner of the facilityto purchase the vehicle in question would be unfair, arbitrary, maliciousand tantamount to an imminent infringement of the petitioner's fun-damental right guaranteed under Article 12 (1) of the Constitution.
Learned State Counsel for the respondents on the other hand 90submitted that the Public Administration Circular No. 24/93 dated 01.
10. 1993 (P6) had provided the criteria with regard to the transferof ownership of an official vehicle. According to part III (1) of thecircular, it is provided that an officer who is entitled to an official vehicleand had been assigned a vehicle, may on retirement be permittedto purchase the vehicle he had been using. State Counsel contendedthat according to the circular such an officer who wishes to purchase
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a vehicle should submit his application on retirement. This positionwas made clear by Part III 2 (dj of the circular which provided asfollows :
"Application can be made only in respect of the vehicle assigned
to the officer at the time of submitting his papers for retirement."
Learned State Counsel submitted that in the present case, thepetitioner had retired on 14. 05. 1992, and not on 31. 12. 1998, sothat he should have submitted his application to purchase the vehiclein terms of the circular (P6) at the time of submitting his retirementpapers which should have been on some date close to 14. 05. 1992.Learned counsel further argued that the petitioner could not havesubmitted such an application to purchase the vehicle at that time,since the circular (P6) was not operative then. In fact, the circular nocame into operation only on 01. 10. 1993, ie about sixteen monthsafter the date of the petitioner's retirement.
The submission of learned State Counsel made on the basis thatthe petitioner retired on 14. 05. 1992, should be considered in thelight of the position taken up by the counsel for the petitioner thatthe date of retirement of the petitioner was 31.12.1998. Under normalcircumstances the date of retirement of a public servant is 60 years.
In fact, it was admitted in the petition and in the written submissionsof the petitioner that he assumed duties in the post of Senior AssistantSecretary 8 days prior to the date of retirement from the Police 120Department at the age of 60 years. Hence, it is not possible to acceptthe submission of the petitioner's counsel that his (petitioner's) dateof retirement from the Public Service should be reckoned as from31. 12.1998 and not from 14. 05.1992. Further, if counsel's contentionis accepted, it would appear that the petitioner had retired afterreaching the age of 66 years and seven months. Such a conclusion
SC W. D. B. L. M. Fernando v. Ranaweera, Secretary, Ministry of
Cultural and Religious Affairs and Others (Hector Yapa, J.)333
would create an absurd situation in the public service. Besides, it isto be noted that petitioner's appointment to the post of AdditionalSecretary (Christian Affairs) was on a contract basis as seen fromhis letter of appointment marked P5. Therefore, the submission of the 130learned petitioner's counsel that he (petitioner) retired on 31.12. 1998has to be rejected and the contention of learned State Counsel thatthe petitioner retired on 14. 05. 1992 should be accepted.
The position that the petitioner had retired at the age of 60 yearsand therefore not entitled to the relief he is claiming in this applicationfinds further support from the letter written by the 3rd respondent tothe 1st respondent. This letter dated 04. 01. 1999 marked X2 hadbeen sent to the 1st respondent by the 3rd respondent in responseto the 2nd respondent's letter of 29. 12. 1998 marked X1. Both theseletters (X1 and X2) had been annexed to the objections filed by the 1402nd respondent to this application. The 3rd respondent's letter (X2)very clearly stated that the petitioner was not eligible to purchase theofficial vehicle in terms of part III of the Public Administration CircularNo. 24/93 (P6). Letter X2, further stated that if the ministry was ofthe view that the petitioner who was re-employed after retirementshould be granted the facility to purchase the vehicle the petitionerhad been using in his capacity as Senior Assistant Secretary andAdditional Secretary, it was desirable for the ministry to take actionto obtain cabinet approval. In these circumstances, it would appearthat the petitioner has failed to establish that there has been an 150infringement of a fundamental right.
There is another serious matter that has been observed in thisapplication namely, that the petitioner had withheld from Court thecontents of X2. The petitioner filed this application on 18. 01. 1999,and it was supported and leave to proceed obtained on 26. 01. 1999.
On the same date, counsel for the petitioner had obtained interim relief
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by seeking a direction on the 1 st and 2nd respondents to defer therecall of the vehicle bearing No. 15-9892 until the final hearing anddetermination of this application. It would appear therefore, that thepetitioner had obtained leave to proceed and interim relief by sup- i6opressing the contents of X2, which very clearly stated that the petitionerwas not eligible to purchase the vehicle he was using in terms ofthe circular P6. Under normal circumstances X2 would have reachedthe 1st respondent by about 06. 01. 1999. The petitioner who wasanxiously waiting for the approval from the 3rd respondent to purchasethe vehicle in question under the circular would have known thedecision conveyed by the 3rd respondent to the 1st respondent byX2. Hence, the petitioner cannot be heard to say that he had noknowledge of the contents of X2. Besides, the timing of the petitioner'sapplication to this Court which was on 18. 01. 1999, suggests that nothe petitioner had decided to file this application soon after the 3rdrespondent's letter X2, which stated that the petitioner was not eligibleto purchase the vehicle in terms of the circular. It should be mentionedhere that, had the contents of X2 been made known to the Court,it was very unlikely that the Court would have given the interim reliefthat was granted to the petitioner. Therefore, it would appear that thepetitioner had been guilty of suppressing a material fact from Court.
In doing so, the petitioner had misled Court and obtained an interimorder which this Court would not have made, had the contents ofX2, been made known to the Court. Further, it is to be noted that 180the petitioner had obtained the said interim relief from Court in theabsence of the respondents. On the other hand, if the respondentshad timely notice of this application, it was very likely that they wouldhave brought to the notice of Court the contents of X2.
The petitioner by withholding from Court the material contained inX2, clearly showed a lack of uberrima tides on his part. When a litigantmakes an application to Court seeking relief, he enters into a con-
SC W. D. B. L. M. Fernando v. Ranaweera, Secretary, Ministry of
Cultural and Religious Affairs and Others (Hector Yapa, J.)335
tractual obligation with the Court. This contractual relationship requiresthe petitioner to disclose all material facts correctly and frankly. Thisis a duty cast on any litigant seeking relief from Court. It was isohighlighted in the case of Blanca Diamonds (Pvt) Limited v. WilfredVan Els and Two Others,m that the contractual obligation which aparty enters into with the Court, requires the need to disclose uberrimafides and disclose all material facts fully and frankly to Court. Anyparty who misleads Court, misrepresents facts to Court or utters afalsehood in Court will not be entitled to obtain redress from Court.This is a well-established proposition of law, since Courts expect aparty seeking relief to be frank and open with the Court.
In this case, it is very clear that the petitioner is not entitled topurchase the vehicle he was using in terms of the Public Administration 200Circular No. 24/93 (P6). Further, the petitioner by suppressing amaterial fact from Court had brought about a situation whereby hehad continued to use the vehicle in question although he was notentitled to do so. The vehicle No. 15-9892 is government propertyand under normal circumstances, the petitioner as a law-abiding citizenshould have returned the vehicle to the Ministry of Cultural andReligious Affairs no sooner the 1st respondent requested him to returnthe vehicle immediately by P8.
For the aforesaid reasons, the petitioner's application is dismissedwith costs fixed at Rs. 15,000.210
ISMAIL, J. -1 agree.
EDUSSURIYA, J. -1 agree.
Application dismissed.