058-SLLR-SLLR-1995-2-WILBERT-GODAWELA-V.-S.-D.-CHANDRADASA-AND-OTHERS.pdf
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[1995] 2 Sri L.R.
WILBERT GODAWELA
v.
S. D. CHANDRADASA AND OTHERS
SUPREME COURT.
FERNANDO, J.
AMERASINGHE, J.
SILVA, J.
S.C. APPLICATION NO. 208/95/FRNOVEMBER 27TH , 1995.
Constitution – Article 12(1) withholding of pension – Public AdministrationCircular No. 29/90 – Minutes on Pensions. Section 12 (1), Section 43A -Ordinance No. 2 of 1942, Section 2.
The Petitioner entered the Public Service on 12, January 1956. On 6,October1994 he received two letters dated 5, October 1994 addressed to him bytwo Secretaries, informing him that he was with immediate effect transferred to theMinistry.
At the time of the receipt of these letters the Petitioner was the Government AgentTrincomalee and was on his last extension of service which was to have ended onreaching his age of retirement on-22, November 1994. In the circumstances, thePetitioner responded to the letters of the two Secretaries by seeking permission toavail himself of leave prior to retirement with effect from 7. October, 1994.
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By letter dated 9, June 1995, to which was annexed a copy of a letter dated 15,March 1995, the 1st Respondent informed the Petitioner that the Secretary to theMinistry of Public Administration had informed him that the Public ServiceCommission had ordered that the Petitioner be retired under Section 12 of theMinutes on Pensions.
Held:
Although, according to the 1st Respondent's letter of 15, March 1995 and theletter of the Secretary, Ministry of Public Administration dated 27. May 1995,the Petitioner was supposed to have been retired in terms of Section 12 (1)of the Minutes on Pensions, there is no provision for retiring a person underSection 12(1).
In the case of the Petitioner, he retired by operation of law, automatically whenhe reached the prescribed age of retirement without the intervention of anyperson or authority.
What, Section 12 (1) is concerned with is the matter of withholding or reducingthe pension of an officer who has retired in the circumstances specified.
A penson could in terms of Section 12 (1) be withheld or reduced only where –
at the time of his retirement from the public service disciplinaryproceedings were “pending or contemplated”, and,
where the explanation tendered by the Public Servant concerned isconsidered to be unsatisfactory.
In the matter before us there was no disciplinary proceedings pending at thetime of retirement. Nor were such proceedings contemplated.
It is only if an explanation tendered by the Public Servant concerned isunsatisfactory that his pension could be withheld or reduced.
APPLICATION for infringement of Fundamental Rights.
Tilak Marapana, P.C., with Nalin Ladduwahetty for Petitioner.
S. Mahenthiran for 2nd Respondent,
G. P. Dep, S.S.C. for 1st and 3rd to 14th Respondents.
Cur adv vult.
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December 07th, 1995.
AMERASINGHE, J.
The Petitioner entered the Public Service on 12th January 1956.He first served in the General Clerical Service. In 1975 he wasappointed to the Sri Lanka Administrative Service and on 1st January1992 he was promoted to Class 1 of that Service.
On 6th October 1994 the Petitioner received a letter dated 5thOctober 1994 addressed to him by the Secretary, Ministry of PublicAdministration and a letter dated 5th October 1994 addressed to himby the Secretary Ministry of Home Affairs, Provincial Councils andCo-operatives, informing him that he was with immediate effecttransferred to the Ministry. At the time of the receipt of these lettersthe Petitioner was the Government Agent Trincomalee and was on hislast extension of service which was to have ended on reaching hisage of retirement on 22nd November 1994. In the circumstances, thePetitioner responded to the letters of the two Secretaries by seekingpermission to avail himself of leave prior to retirement with effect from7th October 1994.
By his letters dated 4th November 1994 and 9th December 1994addressed to his successor at Trincomalee, namely the 1stRespondent, the Petitioner requested that the processing andpayment of his pension should be expedited. An exchange ofcorrespondence between the Petitioner and the First Respondentfollowed in which the 1st Respondent maintained that the matter ofthe pension could not be proceeded with since volume 2 of thePetitioner’s Personal File was with the Petitioner. The Petitioner repliedthat the relevant file was not with him and furnished the requiredinformation which was supposed to be in the missing file. The 1stRespondent insisted that the file was with the Petitioner and reiteratedthat it would not be possible to process the pension papers withoutthe file. The Petitioner thereafter communicated with the Secretary tothe Ministry of Public Administration and the Deputy Director ofCombined Services informing them that the payment of his pensionwas being delayed on the alleged ground that volume 2 of hisPersonal File was with him whereas that was not the case. The
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Wilbert Godaweia v. S. D. Chandradasa and Others
(Amerasinghe, J.)
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Petitioner further informed them that the necessary information whichwas supposed to be contained in that file had been furnished by him.He urged that he should be paid at least 70% of his pension in termsof Public Administration Circular No. 29/90 of 15th June 1990.
That Circular is entitled “Expediting the award of the pensions”. Itexplains the difficulties experienced by public servants as a result ofdelays in the payment of pensions caused by the absence of relevantinformation, and prescribes a two-stage procedure for payment toobviate those difficulties. Paragraph 2.111 states that “a temporarypension of 70% of the full pension will be paid within one month fromthe date of retirement of an officer so that there will be no break in hisincome.” It is further provided that, “a full pension will be paid notmore than three months after retirement." The Circular, which wasissued under the hand of the Secretary, Ministry of PublicAdministration, concludes with the following words: “Heads ofDepartments and All officers dealing with pensions are kindlyrequested to treat the question of the rapid disposal of pensions withhumanity and sympathy. The persons with which this circularconcerns itself are colleagues, who, in the large majority of caseshave served in the Public Service honourably and faithfully. Weshould make every effort to ensure that their last years on this earthare made free from want and financial burden. I do hope, therefore,you will give me your utmost co-operation in implementing theseproposals…."
On 2nd June 1995, the Petitioner received a copy of a letter dated27th May 1995 addressed to the 1st Respondent namely, theGovernment Agent of Trincomalee by the 4th Respondent, namely,the Secretary, Ministry of Public Administration. It was indicated thatthe payment of the Petitioner’s pension was being delayed onaccount of disciplinary proceedings which had been commencedagainst the Petitioner shortly before his retirement being not yetconcluded. It was alleged that the Petitioner had been retired underSection 12 (1) of the Minutes on Pensions. The 1st Respondent wasdirected to submit a Charge Sheet. The Petitioner informed the 4thRespondent by his letter of 5th June 1995 that no disciplinary inquiryhad been commenced against him prior to his retirement, and that up
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to date no charges had been framed against him. Once again heurged that he be paid at least a reduced pension to enable him tosupport himself. By his letter dated 9th June 1995, to which wasannexed a copy of a letter dated 15 March 1995, the 1st Respondentinformed the Petitioner that the Secretary to the Ministry of PublicAdministration had informed him that the Public Service Commissionhad ordered that the Petitioner be retired under Section 12 of theMinutes on Pensions.
On 30th June 1995, the Petitioner filed an application in this Courtpraying, inter alia, that the Court should grant him leave to proceed inrespect of the violation of his fundamental Rights guaranteed byArticle 12(1) of the Constitution, and that the Court should make aninterim Order directing the payment of 70% of his pension in terms ofPublic Administration Circular No. 29/90 of 15th June 1990.
Leave to proceed was granted on 7th July 1995 and the interimrelief prayed for was granted on 27th July 1995.
Section 12(1) of the Minutes on Pensions provides as follows:
“12(1) Where the explanation tendered by a public servantagainst whom, at the time of his retirement from public service,disciplinary proceedings were pending or contemplated inrespect of his negligence, irregularity or misconduct, isconsidered to be unsatisfactory by the competent authority, thePermanent Secretary. Ministry of Public Administration, LocalGovernment and Home Affairs may either withhold or reduceany pension, gratuity or other allowance payable to such publicservant under these Minutes.
Although, according to the 1st Respondent’s letter of 15 March1995 and the letter of the Secretary, Ministry of Public Administrationdated 27th May 1995, the Petitioner was supposed to have beenretired in terms of Section 12(1) of the Minutes on Pensions, there isno provision for retiring a person under Section 12(1). In the case ofthe Petitioner, he retired by operation of law, automatically when hereached the prescribed age of retirement without the intervention of
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Wilbert Godawela v. S. D. Chandradasa and Others
(Amerasinghe, J.)
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any person or authority. What Section 12(1) is concerned with is thematter of withholding or reducing the pension of an officer who hasretired in the circumstances specified.
It will be seen that a pension could in terms of Section 12(1) bewithheld or reduced only where (1) at the time of his retirement fromthe public service, disciplinary proceedings were “pending orcontemplated”, and (2) where the explanation tendered by the PublicServant concerned is considered to be unsatisfactory. In the matterbefore us there were no disciplinary proceedings pending at the timeof retirement. Nor were such proceedings contemplated. What hadhappened was that a petition dated 1st September 1994 had beensent by one Leelasena Galappaththy to the Prime Minister withcopies to various others making certain allegations against thePetitioner. However, there is no evidence to show that the allegationswere seriously taken and acted upon in a manner which wasindicative of the fact that disciplinary proceedings against thePetitioner were envisaged or likely. Had such proceedings beencontemplated and, that was the reason for withholdings the pension,it is difficult to understand why that reason was not given in the firstplace, and why instead, the failure to pay the pension waspersistently attributed to the loss of volume 2 of the Petitioner’sPersonal File.
Moreover, it is only if an explanation tendered by the PublicServant concerned is unsatisfactory that his pension could bewithheld or reduced.
The Petitioner was officially informed that the withholding of hispension was based on Section 12(1) of the Minutes on Pensions onlyon 2 June 1995 when he received a copy of the letter dated 27, May1995 addressed by the Secretary of the Ministry of PublicAdministration to the Government Agent of Trincomalee. A chargeSheet dated 31, August 1995 was served two months afterproceedings had been commenced in this Court in respect of theinfringement of the Petitioner’s Fundamental Rights. It has not beensuggested that in compliance with the provisions of Section 12(1) ofthe Minutes on Pensions, the decision to withhold the pension was
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made after the Petitioner's explanation had been called for, dulyconsidered, and rejected as unsatisfactory.
The manner in which Section 12 of the Minutes on Pensions is tobe applied is set out in Annex III to Public Administration Circular29/90 as follows:
“In the case of a public officer against whom disciplinaryproceedings were pending or contemplated (i..e., where a ChargeSheet has not been served) at the time of retirement from thepublic service:
Where no prima facie case is established, the retirement subjectto Section 12 of the Pensions Minute should be converted tonormal retirement and recommendations made to the Director ofPensions, within three months of the officer retiring.
Where a prima facie case has been established the DisciplinaryAuthority should issue a Charge Sheet within one month of thedate of retirement. The officer should be informed that it is in hisown interest to give a full and complete explanation, as hewould have no opportunity of offering any further explanation.He should be given two weeks to submit his explanation.
If the Disciplinary Authority considers the officer’s explanationsatisfactory, action should be taken as specified in para 1.11above.
If he considers the explanation unsatisfactory, no action shouldbe taken to hold an inquiry, but the Head of Departmentconcerned should send a report to the Director of Pensionssetting out:
the charges or the matters on which the explanation wascalled for;
the explanation tendered;
the views of the Head of Department on theexplanation.
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Wilbert Godawela v. S. D. Chandradasa and Others
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The Director of Pensions will make a decision thereafter on thewithholding or reducing of any pension, gratuity or otherallowance payable to the officer under the Minutes onPensions…”
In the matter before us neither the provisions of Section 12 of thePensions Minute nor the procedures laid down for its application inPublic Administration Circular. No. 29/90 have been observed. In myview the Petitioner’s pension has been withheld in an arbitrarymanner and he is justified in complaining that the Minutes onPensions which is a part of the "written law” of Sri Lanka (see Section2 of Ordinance No. 2 of 1942) has not been applied to him.Consequently he has been denied the equal protection of the lawguaranteed by the Constitution.
For the reasons set out in my judgment, I declare that the 3rd -13th Respondents have violated Article 12(1) of the Constitution.
I make order setting aside the decisions and directions made byany or several of the Respondents to withhold or reduce the pensionof the Petitioner without prejudice to the rights of the State under anylaw, including Section 43A of the Minutes on Pensions.
I direct the State to pay within one month the Petitioner his arrearsof pension from the date of his retirement, including any sumswithheld as a result of complying with the order of this Court on 27,July 1995 directing the payment of 70% of the pension to thePetitioner.
I further direct the State to pay the Petitioner a sum of Rs. 15000 ascosts.
FERNANDO, J. -1 agree.
SILVA, J. -1 agree.
Relief Granted.