BANDARA AND ANOTHER
v.
PREMACHANDRA, SECRETARY, MINISTRY OF LANDS, IRRIGATION
AND MAHAWELI DEVELOPMENT AND OTHERS
Page
301
SUPREME COURT.
FERNANDO, J.
PERERA, J. AND
WIJETUNGA, J.
S.C. APPLICATION
N0.213/93
JUNE 8TH,
9TH AND 23RD, 1993.
Fundamental Rights Probation Course for Bachelor's
Degree in Surveying Trade Union Action Misconduct Tender
of sick notes Vacation of Post Termination of Services
Applicability of Establishment Code Constitution, Article 55(1)
Discrimination Constitution, Article 12.
The 22 petitioners
along with 15 others were selected to follow a four year residential
course leading to the award of a Bachelor's degree in the Surveying Service.
Only Class III, Grade III Surveyors were eligible to follow this course. The 1st
respondent .issued letters of appointment appointing them as Surveyors in Class
II Grade III on probation for a period to be notified (but not notified).
Shortly thereafter the petitioners became members of the Government Surveyors'
Association, a Trade Union. The Annual General Meeting of the Association was
held on 26.09.92 and the petitioners attended this meeting with some
difficulty. Thereafter the
Page 302
respondent
interviewed the petitioners and indicated willingness to reinstate them, if
they furnished a written undertaking:
(i) to refrain from participating in Trade Union
activities during the four year training period; and
(ii) to devote themselves exclusively to educational
activities.
The petitioners gave
this undertaking by letter which specifically referred to the 2nd
respondent's request for such an undertaking. The 2nd respondent did
not reply or deny the statement attributed to him. However in his affidavit to
court he denied the statement but the court did not accept the denial.
Held:
(1) It
was on account of participation in trade union activity that the 2nd respondent (Surveyor General) informed
the petitioners that their services had been terminated.
(2) The
misconduct of the petitioners was such that it had to be dealt with under the
Establishments Code.
(3) The
'pleasure principle' in Article 55(1) of the Constitution is subject to the
equality provision of Article 12 and mandates fairness and excludes arbitrariness.
(4) The
power to make rules under Article 55(4) is subject to the provisions of the
Constitution, including Article 12 and the Constitution rests on the rule of
law. The conditions on which powers of the Cabinet have been delegated are
contained in Chapter 11, Section 11 of the Establishments Code. In the
Establishments Code "without assigning any reason" only means that no
reason need be stated to the officer but that a reason, which in terms of the
Code justifies dismissal, must exist; and when the law requires disclosure of
such reason, it will have to be disclosed- and, if not disclosed legal
presumptions will be drawn. The Cabinet has delegated a power to dismiss for
cause, and according to the procedure prescribed.
(5) Where
others have been treated differently the burden on the respondents was to
establish not just any difference between the petitioners and other groups or
classes but a rational basis for differences in treatment. If the other
officers were leniently treated, the petitioners should have been subjected to
a much lesser punishment than dismissal; and dismissal was unreasonable,
arbitrary and discriminatory.
(6) The petitioners had not been dismissed by
the proper authority; that the 2nd respondent improperly deprived
them of their right under Chapter V, Section 7:4
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303
(of the Establishments Code). The petitioners were
improperly and unlawfully prevented by the respondents from resuming their
studies and work; Action was taken against them not for misconduct but for
participating in trade union activity (and not because such activity was
considered unlawful or improper). The fundamental rights under Article 12(1)
have been violated. They are entitled to reinstatement and to resume their
course of studies forthwith, retaining seniority over students subsequently
admitted to that course of studies.
Per Fernando, J.:
"The State must, in the public interest, expect
high standards of efficiency and service from public officers in their dealings
with the administration and the public. In the exercise of constitutional and
statutory powers and jurisdictions, the Judiciary must endeavour to ensure that
this expectation is realised."
Cases referred to:
1. Abeywickrama
v. Pathirana [1986] 1 Sri LR 120, 139, 149.
2. Chandrasiri v. A. G.
[1989] 1 Sri LR 115.
3. A.
G. v. Keyser's Royal Hotel [1920] AC 508, 526, 539, 554, 562.
4. Perera v. Jaya wickrama [1985]
1 Sri LR 285.
5. De
Alwis v. Gunawardena SC 7/87 SC Minutes of 28.3.88.
APPLICATION for infringement of
fundamental rights.
H. L. de Silva P.C. with Elmo Perera and M. M. Musaferfor the petitioners.
Shibley Aziz P.C. Solicitor General
with A. S. M. Perera D.S.G. for the respondents.
Cur adv vult.
August 16th, 1993.
FERNANDO, J.
On 30.7.92, the 22
Petitioners, together with 15 others, were selected (on the basis of G.C.E.
(A.L..) performance) to follow a four-year residential course leading to the
award of a Bachelor's Degree in Surveying Science, by the Institute of
Surveying and Mapping, Diyatalawa ("ISM"), a Degree Awarding
Institute. Only Class III, Grade III Surveyors were eligible for that course,
which commenced on 24.8.92. The 1st Respondent, the Secretary,
Ministry of Lands, Irrigation and Mahaweli Development, issued letters of
appointment
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(P3) dated 24.8.92 to each Petitioner,
appointing him as a Class III Grade III Surveyor in the Sri Lanka Surveyors'
Service; appointment was stated to be on probation for a period to be notified
(but this was not done); and was subject to termination with one month's notice
for
(a) failure to pass the degree examination of
the ISM:
(b) failure to obtain the required number of
marks at the end of each quarter;
(c) unsatisfactory conduct during probation;
or
(d) inefficiency during probation.
It was expressly
stated in P3 that if the required language proficiency was acquired, and if
service during probation was satisfactory, the appointment would be confirmed
in terms of Chapter II, Section 11, of the Establishments Code, which provided:
“11. Probation
11:1 Every appointment to a Permanent post will
be on probation for a period of three years.
11:2 Appointment on probation implies that the
officer may, before confirmation, count on being admitted to the permanent
establishment if he carries out the obligations imposed by his letter of
appointment and proves by conduct and efficient service, his suitability for
permanent retention in the Public Service. Appointment on probation makes
possible the elimination of a person against whom definite misconduct cannot be
urged and who, for temperamental and other defects, should be released from the
Public Service, before it is too late for him to find other employment.
11:2:1 The following procedure should be followed in
the case of an officer appointed on Probation:
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305
He should be regarded
as being on Probation with a view to learning work and being tested for his
suitability for permanent retention.
He should not only be
given all facilities for acquiring experience in his duties, but also be under
continuous and sympathetic observation and guidance.
If during his period
of probation, he shows any tendencies which render doubtful his suitability for
permanent retention, he should at once be warned and given such assistance as
may be possible to correct his failings. Any admonition administered for any
serious act or omission or any fault of conduct or character which, if
persisted in, may prevent his confirmation, should be communicated to him in
writing and an acknowledgement obtained, so that no question may subsequently
arise as to whether the officer was warned of his failing and given an
opportunity of improvement . . . .
11:4 During the period of Probation the
Appointing Authority will have the power to terminate the officer's appointment
without assigning any reason . . .
11:5 If at the end of the period of probation .
. . the officer's work and conduct are judged to have been satisfactory, and if
he has fulfilled all the requirements for confirmation in that appointment, he
should be confirmed in his appointment by the appropriate authority.
Shortly thereafter,
the Petitioners became members of the Government Surveyors' Association
("the Union"), a duly registered trade union, and with some
difficulty obtained leave to attend the Annual General Meeting held in Colombo
on 26.9.92; leave having been refused by the 3rd Respondent, the
Director, ISM, at the last moment, the 2nd Respondent, the Surveyor General,
granted such leave. That Union thereafter embarked on trade union action, in
support of certain demands, commencing with a work to rule campaign
from 7.12.92. Quite inapproriately, the initial stage of the
Page
306
work to rule
was an abstention from work for two weeks by all members, after submitting
applications for sick leave for that fortnight. The Petitioners say that the
first part of their course (a three-month intensive English Course), had been
completed by the end of November, 1992, and that the next stage was due to
commence in January 1993, so that there was no work scheduled for them in
December. Apart from a general denial by the 2nd Respondent, there
was not even a suggestion by the Respondents that there were any lectures,
practicals, field work, or other activities scheduled for December. It is
not disputed that the disciplinary rules required the Petitioners to get
written permission from their lecturer in charge in order to leave
the ISM. The Petitioners say that in accordance with the prevailing practice,
they made entries in a leave register maintained for the purpose; they also
sent telegrams requesting leave on the ground of illness, and these were
received before 11.12.92; they sent medical certificates, which were all
received long after 11.12.92. It is virtually a certainty that none of the
Petitioners were in fact ill, and that medical certificates had been obtained
from medical practitioners who were either dishonest or deceived.
Learned President's
Counsel for the Petitioners contended, with little enthusiasm, that submitting
false sick notes and medical certificates was legitimate trade union
action, as part of a work to rule campaign. I have equally little
hesitation in rejecting that contention. This Court will not condone the
conduct of an employee who lies to, or otherwise deceives, his employer as to
the reason, for his failure to work, whether individually or collectively; that
it was "trade union action" aggravates rather than mitigates such
misconduct. An employer would be justified in taking disciplinary action in
respect of such misconduct. But for the fact that the Petitioners have already
suffered considerably by a six month interruption in their course of
studies, I would have expressly reserved to the Respondents the right to take
this misconduct into account, in determining whether they should be confirmed
upon completion of probation. However, without dealing with the Petitioners for
that misconduct, it seems to me (for the reasons i have set out later in this
judgment) that the 1st and 2nd
Respondents chose instead to take action against them for participation in
trade union activity.
Page
307
The Termination of the Petitioners' Services
By letter dated
11.12.92 (P4) the 2nd Respondent informed the Petitioners that the 1st
Respondent had terminated their services, and their course of studies, with
effect from 7.12.92: no reason was stated. The Petitioners contended that the 1st
Respondent had not in fact decided to terminate their services, pointing out
that there was no document or affidavit from the 1st Respondent
stating or suggesting that he had taken such a decision. The learned Solicitor-General
submitted, in reply, that there was a record of a discussion at which the 1st
and 2nd Respondents were present, and that the 1st
Respondent had decided to dismiss the Petitioners, and had directed the 2nd
Respondent to so inform the Petitioners. Learned President's Counsel stated
that he would not object to the production of that document, if the Petitioners
were permitted to produce a photocopy of a letter dated 29.1.93 from the 1st
Respondent to the Secretary to the President. The learned Solicitor General
had no objection. Accordingly, a letter dated 16.12.92 from the Assistant
Secretary (Administration) of the Ministry of Lands, Irrigation and Mahaweli
Development, to the 2nd
Respondent, and the annexed minutes of the discussion held on 11.12.93
was produced as 1R1 and 1R1A; and the letter dated 29.1.93 was produced as P38.
According to 1R1A, the absence of Surveyors after submission of sick notes,
and their demands, was discussed; thereafter, the participation of the ISM
students in this trade union action was considered. It was then decided to
withdraw State vehicles from the Surveyors; and to entrust urgent work to
private Surveyors. In regard to the students it was decided (I will assume, by
the 1st Respondent) "to terminate their services and training
with immediate effect if they do not attend lectures". The learned
Solicitor General made a valiant effort to convince us that the Sinhala
phrase “;u foaYkd j,g iyNd.s
fkdjkafka kuz " must
be taken, in context, to refer to their past
conduct in being absent from the ISM without leave; and that the reference
to lectures was a mere
misdescription. These are explanations which the 1st and 2nd
Respondents and the marker of 1R1A have not chosen to place before this Court
by affidavit. The plain meaning of 1R1A is that there was no immediate
termination of services, but that, if the students did not attend lectures
after 11.12.92, their services should then be immediately terminated.
Page 308
Copies of P4, and
presumably also of 1R1 and 1R1A, had been sent to the 1st
Respondent. However, in P38 the 1st Respondent gave quite a
different version of the decision taken on 11.12.92. Having referred to the
terms and conditions of P3, and the liability of the Petitioners to termination
for breach, he stated that because they had not behaved with the responsibility
expected of those in the public service, and had set a bad example, they were
deemed to have vacated post with effect from 7.12.92. Here again I am unable to
accept the learned Solicitor General's contention that in a comprehensive
report to the Secretary to the President, a senior public officer holding the
post of Secretary to a Ministry used the Sinhala equivalent of "deemed to
have vacated post" loosely, when all he meant to say was
"terminated". I can well understand why the 1st Respondent prudently refrained from tendering
an affidavit to this Court putting forward such an implausible explanation.
Further, if it was vacation of post, the reference to 7.12.92 was quite appropriate,
for that was the day on which the Petitioners commenced keeping away from work.
But if the decision was to terminate, then 7.12.92 was inappropriate;
especially as P3 required one month's notice.
According to P4, the
service of the Petitioners had been terminated with effect from 7.12.92;
according to 1R1A, the decision was to terminate if the Petitioners did not
attend lectures (i.e. in the future); but according to the 1st Respondent himself, as he stated in P38, he
decided that they be deemed to have vacated post. I hold that the 1st
Respondent's decision was not to dismiss the Petitioners, but to treat them as
having vacated post.
Chapter V, Section
7:1, of the Establishments Code provides that "an officer who absents
himself from duty without leave will be deemed to have vacated his post from
the date of such absence and he should be informed accordingly at once."
Section 7:4 enables the officer to submit an explanation; such explanation must
be considered by the Disciplinary Authority, although ultimately it may or may
not be accepted by that Authority; thus a vacation of post notice does not at
once result in a final and irrevocable severance of the employment
relationship, but leaves the employee a
chance of being reinstated. There is no similar provision applicable to the
termination of an appointment. By incorrectly informing the Petitioners that
their
Page
309
services had been
terminated, the 2nd Respondent deprived the Petitioners of their
right to submit an explanation in respect of their "vacation of
post", which might have been accepted by the Disciplinary Authority.
I have now to
consider the real reason for the purported dismissal of the Petitioners, which
the events of the next few weeks revealed. The Petitioners submitted a petition
dated 16.12.92 to the 1st Respondent, through the 2nd Respondent, pleading that, without a proper
understanding of the gravity of the matter and without an opportunity of
obtaining advice from their parents and elders, they had complied with the decision
of the Union. They reported for work on 21.12.92, but were not allowed to do
so. On 5.1.93 two Petitioners interviewed the 2nd Respondent, who,
according to them, indicated his willingness to reinstate them, if they
furnished a written undertaking:
(i) to refrain from participating in Trade
Union activities during the four year training period; and
(ii) to devote themselves exclusively to
educational activities.
The Petitioners gave
this undertaking by letter dated 6.1.93 (P10), which specifically referred to
the 2nd Respondent's request for such an undertaking. The 2nd
Respondent did not reply to P10 or deny the statement attributed to him.
However, in his affidavit sworn on 24.5.93, he stated that he did not request
any such written undertaking, but that the Petitioners on their own tendered
such an undertaking. I cannot accept his version in view of his failure
promptly to contradict P10. On 10.1.93, the "Sunday Observer" carried
a report of a press interview In which the 2nd Respondent had stated
that the Union had dragged 37 students into its campaign "and their future
is bleak because all of them have been discontinued"; and that the Union
had "forced them to extend support to the [Union] campaign". He did
not suggest that discontinuance was because they had submitted false sick notes
or medical certificates, or for any other misconduct. Thereafter, on 3.2.93,
parents and guardians of the Petitioners met the Minister, who indicated that a
settlement would not be possible so long as the
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trade union action
continued, and that they should "create an environment favourable to . . .
a settlement". Presuming that the Minister meant a cessation of the
Union's trade union action, the parents requested the Union to call off their
campaign. By letter dated 5.2.93, the Union informed the Minister that they had
suspended the work to rule for 10 days from 10.2.93; and,
subsequently, until 10.3.93. It is quite clear that it was on account of
participation in trade union activity that the 2nd Respondent
informed the Petitioners that their services had been terminated.
Applicability of the Establishments Code
Although the learned
Solicitor General contended that a probationary appointment could be
terminated under Chapter II, Section 11:4, and Chapter V, Section 6:2, of the
Establishments Code "without any reason being assigned", at the same
time he submitted that other provisions of the Code (especially Chapter II,
Section 11:2:1) were inapplicable to the Petitioners because of the gravity of
their misconduct; and accordingly their services could have been terminated
without the guidance, admonitions, and warnings provided for in Section 11:2:1.
There may perhaps be some extremely serious, persistent and flagrant acts of
misconduct which demonstrate that the culprit is so completely beyond
redemption, that guidance, warnings and opportunities for reform would be
futile. If rebels and insurgents can be rehabilitated and reinstated in public
employment„ why not youth who engage in improper strike action? While in an
appropriate case I would be prepared to consider the possibility of such an
exception to the Code, the misconduct of the Petitioners is certainly not of
that nature; Section 11:2:1 was intended to apply even to "serious acts,
omissions, and faults . . . which if persisted in would prevent
confirmation." The Petitioners' misconduct does not suffice to justify the
recognition of an exception which would introduce anomalies, discrepancies, and
uncertainties into a Code, one principal objective of which was to ensure
uniformity and certainty.
Article 55 (1) of the Constitution
The learned Solicitor General
submitted that the Petitioners held office "at pleasure" within the
meaning of Article 55(1) of the
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311
Constitution; that
the Government cannot by rules made under Article 55(4), or by contract,
restrict or override its constitutional prerogative of dismissal at pleasure (Abeywickrema v. Pathirana,(1) which I followed in Chandrasiri v. A.G.,(2) in
considering the scope of the much wider provisions of section 106(5) of the
1972 Constitution); that Chapter II, Section 11:4, and Chapter V, Section 6:2,
of the Establishments Code recognise that the Appointing Authority was entitled
to terminate a probationary appointment "without assigning any
reason", i.e. at pleasure; and that any such termination could not be
questioned in these proceedings.
Article 55 provides:
"(1) Subject to
the provisions of the Constitution, the appointment, transfer, dismissal and
disciplinary control of public officers is hereby vested in the Cabinet of
Ministers, and all public officers shall hold office at pleasure."
"(4) Subject to
the provisions of the Constitution, the Cabinet of Ministers shall provide for
and determine all matters relating to public officers, including the
formulation of schemes of recruitment and codes of conduct for public officers,
the principles to be followed in making promotions and transfers, and the
procedure for the exercise and the delegation of the powers of appointment,
transfer, dismissal and disciplinary control of public officers.
"(5) Subject to
the jurisdiction conferred on the Supreme Court under paragraph (1) of Article
126 no court or tribunal shall have power or jurisdiction to inquire into,
pronounce upon or in any manner call in question, any order or decision of the
Cabinet of Ministers, a Minister, the Public Service Commission, a Committee of
the Public Service Commission or of a public officer, in regard to any matter
concerning the appointment, transfer, dismissal or disciplinary control of a
public officer."
These are proceedings
under Article 126(1); the question whether the purported dismissal of the
Petitioners was a violation of Article 12(1), 14(1) (c) or 14(1) (d) can be
examined in those proceedings; and it is therefore unnecessary to consider the
precise scope of the preclusive clause contained in Article 55(5).
Page 312
It may well be that
in the United Kingdom the prerogative in regard to office held at pleasure was
very wide. However, any such prerogative recognised or conferred under a
written Constitution, such as ours, with a separation of functions, must
necessarily be subject to limitations. Article 55(5) makes the "pleasure
principle" subject to the fundamental rights and the language rights;
Article 55(1) makes it "subject to the provisions of the
Constitution", so that other limitations may be found elsewhere in the
Constitution. The concept of holding office at pleasure suggests, prima facie, that dismissal may be for a
reason good, bad, or indifferent or without any reason.
However, "since Article 55(1) is subject, inter alia, to Article 12, dismissal, even by the Cabinet of
Ministers, cannot be for a reason which involves a denial of equal protection,
violative of Article 12(1), or an infringement of Article 12(2). Even if the
reasons for dismissal are not stated, upon a challenge under Article 12, a
consideration of those reasons becomes almost inevitable; an assertion that
there were no reasons would amount to an admission that it was arbitrary; and a
refusal to disclose reasons would tend to confirm a prima facie case of discrimination made out by the Petitioners.
Thus the "pleasure principle" contained in Article 55(1) is
necessarily subject to significant limitations, which were lacking in section
107(1) of the 1972 Constitution. The subjection of Article 55 (1) to the
equality provision of Article 12 mandates fairness and excludes arbitrariness.
Powers of appointment and dismissal are conferred by the Constitution on
various authorities in the public interest, and not for private benefit, and
their exercise must be governed by reason and not caprice; they cannot be
regarded as absolute, unfettered, or arbitrary, unless the enabling provisions
compel such a construction.
Further, even in the
United Kingdom, it has been recognised that where a matter that could be dealt
with under the prerogative is covered by statute, the statute prevails;
statutory conditions and restrictions apply to the exercise of the prerogative;
and the prerogative is to some extent superseded (AG v. de Keyser's Royal
Hotel) (3). While section 107 was not subject to any limitation,
Article 55(1) is "subject to the provisions of the Constitution"; and
hence has to be read with Article 55(4), which authorises the making of rules
relating to "all matters relating to public officers", and regarding
the
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313
procedure for the
exercise of the power of dismissal; the grounds and the procedure for dismissal
appear to be included.
If a public officer
is appointed by the Cabinet, under and in terms of rules made under Article
55(4) (or under a contract or letter of appointment issued in terms of such
rules), it seems to me that several, as yet unresolved, questions arise:
(a) Is the Cabinet in
exercising the "pleasure principle" obliged to abide by such rules
(or the contract)?
(b) Even if those
rules are not binding on the Cabinet, can they be regarded as void? Or is it
that the Cabinet would have an option, in regard to dismissal, either to rely on the "pleasure
principle" (in which event the dismissal would be partially excluded from
review under Article 55(5), or to
act under and in terms of the rules (or the contract)?
(c) If the Cabinet
opts to act under the rules (or the contract), must any issue arising for
determination be decided on the basis of such rules (or the contract), and if
the dismissal cannot be justified on that basis, is the State then precluded
from falling back on the "pleasure principle"?
(d) Even if an
exercise of the prerogative, in a manner contrary to the provisions of the
rules (or the contract), would result in a valid dismissal and an effective
severance of the employment relationship, would the employee nevertheless be
entitled to compensation or other relief, short of reinstatement?
However, here the
Respondents rely on a purported dismissal by the 1st Respondent, and not by the Cabinet. Counsel
assumed, for the purposes of argument, that the power of appointment had been
duly delegated to the 1st
Respondent, and that accordingly the power of dismissal was also vested
in him. The 1st Respondent could therefore have no greater power of dismissal
at pleasure than the Cabinet of Ministers, and accordingly, his acts must
necessarily be subject to review to the same extent. Further, his powers would
be limited by the terms of the delegation, and hence we asked the learned
Solicitor General whether he had been delegated the plenary
Page 314
power of dismissal at
pleasure, or a lesser power. His reply was that the conferment of a power,
under Chapter II, Section 11:4, and Chapter V, Section 6:2, to dismiss
"without any reason being assigned" constituted a plenary delegation
of the Cabinet's power to dismiss at pleasure. I cannot accept this contention.
The power to make rules under Article 55(4) is subject to the provisions of the
Constitution, including Article 12; and the Constitution rests on the Rule of
Law. Rules made under Article 55(4) must be interpreted so as to avoid
inconsistency with Article 12 and the Rule of Law, even if dismissal "without
any reason being assigned" might, at other times or in other contexts,
have been equated to "dismissal without any reason". I hold that the
conditions on which powers have been delegated are contained in Chapter II,
Section 11. Sections 11:2 and 11:5 confer an entitlement to confirmation, upon
fulfilment of certain conditions; Section 11:2 makes the public officer liable
to termination for misconduct and other "defects"; all this is
inconsistent with any discretion to authorise dismissal "at pleasure".
It is in that context that Section 11:4 must be interpreted.
I am of the view that
in the Establishments Code "without assigning any reason" only means
no reason need be stated to the officer, but that a reason, which in terms of
the Code justifies dismissal, must exist; and when the law requires disclosure
of such reason, it will have to be disclosed and, if not disclosed,
legal presumptions will be drawn. I hold that the Cabinet has only delegated a
power to dismiss for cause, and according to a procedure prescribed (e.g.
Chapter I I, Section 11:2:1).
In any event, it was
not the Respondents' case, according to the documentary evidence, that the 1st
Respondent acted on the "pleasure principle"; P38 shows that he acted
on the contract of employment, and perhaps also the Establishments Code. He
cannot now seek to fall back on the "pleasure principle".
Discrimination contrary to Article 12(1)
The 2nd
Respondent incorrectly informed the Petitioners that the 1st Respondent had decided to terminate their
services. They were deprived of their right to submit an explanation under
Chapter V,
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315
Section 7:4, of the
Establishments Code. On 21.12.92 they were not permitted to resume their work
and studies. Such treatment denied them the equal protection of the law, as the
Establishments Code was intended to afford uniform treatment to public
officers. I do not think it necessary that in order to prove discrimination the
Petitioners should have adduced proof of instances in which other public
officers who were absent without leave were deemed to have vacated post, for
that is a matter of common occurrence, demanding judicial notice; and I would
have regarded Perera v. Jayawickreme(4) , as inapplicable. However, in this
case, the Petitioners rely on additional matters to prove discriminatory
treatment without a rational basis for differentiation:
1. In 1989, 1990 and 1991, trainee
surveyors, while on probation, indulged in similar trade union action, and the
only consequence they suffered was the suspension of their training programmes
for two weeks;
2. In December 1992,
(a) about 80 Class
III, Grade III Surveyors on probation, not being students at IMS, and
(b) about 1,000 other
officers (confirmed and permanent),
participated in the
same trade union campaign, but no disciplinary action whatsoever was taken
against them.
The learned Solicitor General
seeks to justify the difference in treatment on the basis that
1. Unlike trainees in previous years, the
Petitioners were admitted to the ISM course enjoying the benefits of a monthly
salary and residential accommodation, and without having served the Department
for even a day;
2. the Petitioners' acts of indiscipline
were extremely serious, especially because they were committed while still on
probation;
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316
3. the Petitioners were not entitled to
expect that acts of indiscipline would continue to be treated as leniently as
in the past; and
4. unlike the Petitioners who were merely
following a course of studies, the other officers had duties to perform in
relation to the public; their dismissal would have caused serious disruption
and inconvenience to the public and the public service.
The burden on the
Respondents was to establish not just any difference between the Petitioners
and the other groups or classes, but a rational basis for differences in
treatment. I entirely agree that the Petitioners were not entitled to expect
that unlawful acts would continue to be condoned or leniently treated; and that
an employer may be justified in assuming that probationers guilty of
indiscipline during probation (i.e. a period when they know they are being
closely observed), are likely to be more indisciplined after confirmation.
However, there is no doubt that the other groups were also guilty of acts of indiscipline;
even senior officers, of much greater experience, maturity and responsibility
were guilty of the same act; further, some of them were the instigators of the
campaign, while the students were "dragged in" and "forced to
extend support"; and the 1st and 2nd respondents
described the conduct of the senior officers in the "Sunday Observer"
interview in these terms:
"Some of the
demands are outside our purview. Some are trivial, parochial, ridiculous and
irresponsible . . .
. . . this kind of
unethical and irresponsible behaviour will take them nowhere."
The learned Solicitor General
admitted that in the case of the students their absence from work did not
prejudice the public or interfere with their studies; and that in the case of
the other officers, inconvenience to the public was inevitable. He contended,
however, that it was not practicable to dismiss them. It seems to me that the
justification, if any, for treatment meted out to the Petitioners was
discipline. Even if I assume that dismissal was both appropriate and
proportionate, Article 12 required, also in the interests of discipline, that
disciplinary action be taken against all others who were guilty of
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similar misconduct.
Even if I assume further that the conduct of the others was not more serious,
and that the maintenance of services to the public made their dismissal
impracticable, yet some disciplinary
action was imperative, especially against the instigators. However, here, no
disciplinary action whatsoever was taken against the other officers (and I do
not regard the withdrawal of a facility, such as State vehicles, as a
punishment). To put in another way, if the other officers were so leniently
treated, the Petitioners should have been subjected to a much lesser punishment
than dismissal; and dismissal was unreasonable, arbitrary and discriminatory.
I therefore hold that
there was no rational basis for the difference in treatment.
Aricle 14 (1) (c) and 14 (1) (d)
Although leave to
proceed was granted only in respect of Article 14(1) (d), the learned Solicitor General
consented to the Petitioners rights under Article 14 (1) (c) being considered.
It is quite clear that the purported dismissal of the Petitioners was on
account of their participation in trade union action, and not on account of any
misconduct or considerations therewith. Learned President's Counsel submitted
that the right to form and join a trade union should not be narrowly
interpreted, and that it includes the concomitant right freely to engage in
lawful trade union activity de Alwis v.
Gunawardena (5), However,
Article 14 (1) (c) is of general application to all forms of associations,
including trade unions; and not only to the initial act of forming or joining
an association, but to continuing membership and participation in the lawful
activities of the association.
Had the Petitioners
been dealt with for engaging in lawful and proper trade union activity. I would
have had no hesitation in granting them relief. But here their conduct has been
tainted with misconduct or impropriety. Since I hold that they are entitled to
relief under Article 12 (1), I refrain from granting them relief under Article
14 (1) (c) and (d).
I hold that the
Petitioners had not been dismissed by the proper authority; that the 2nd
Respondent improperly deprived them of their right under Chapter V, Section
7:4; that the Petitioners were improperly and unlawfully prevented by the
Respondents from
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resuming their
studies and work; that such action was taken against them, not for misconduct,
but for participating in the trade union activity (and not because such
activity was considered unlawful or improper); and that their fundamental
rights under Article 12(1) have been violated. I order their reinstatement with
effect from 7.12.92, with arrears of salary from 21.12.92; they will be
entitled to resume their course of studies forthwith, retaining seniority over
students subsequently admitted to that course of studies.
The State must, in
the public interest, expect high standards of efficiency, service and fairness
from public officers in their dealings with the administration and the public.
In the exercise of constitutional and statutory powers and jurisdictions, the
Judiciary must endeavour to ensure that this expectation is realised. We are
here dealing with provisions of the Constitutions and rules thereunder,
embodying safeguards intended to ensure that the administration reciprocally
extends to public officers, like standards of just, equitable, and fair
treatment in order to enable them to serve the public as they should, without
being unfairly troubled about their tenure and prospects. Those standards we
have to enforce even in regard to errant public officers. The conduct of the
Respondents has fallen short of those standards, not through mistake or
inadvertence, but wilfully. The relief awarded to the Petitioners must reflect
our disapproval of that conduct. I direct the State to pay each Petitioner
compensation in a sum of Rs. 2,000/ in respect of the infringement of
Article 12 (1).
The 2nd
Respondent was mainly responsible for the purported dismissal, the denial of an
opportunity to submit an explanation, and the failure to reinstate the
Petitioners, despite receiving the undertaking sought by him. He was thus
responsible for this litigation, and it would have been just and equitable to
have required him to pay the costs incurred by the Petitioners. However, in
this instance I refrain from making such an order solely because of the
Petitioners' own lapses.
PERERA, J. I agree.
WIJETUNGA, J. I agree.
Relief ordered.