005-SLLR-SLLR-1994-V2-JAYASINGHE-V.-THE-ATTORNEY-GENERAL-AND-OTHERS.pdf
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JAYASINGHE
v.
THE ATTORNEY GENERAL AND OTHERS
SUPREME COURT.
FERNANDO, J.
PERERA, J. ANDWUETUNGA, J.
S.C. APPLICATION NO. 86/94OCTOBER 3,1994.
Fundamental Rights – Prolonged delay in commencing and concludingdisciplinary inquiry against interdicted employee – Are disciplinary proceedings’administrative action"? – Equal protection of the law – Article 12(1) of theConstitution – Protection of liberty – Protection of livelihood – Is it alwaysnecessary to produce evidence of offer similar instances to prove infringement toequal protection of the law – Co-operative Employees' Commission Act No. 12 of1972 and Regulations – Co-operative Employees’ Commission.
The petitioner was a storekeeper employed by the 2nd respondent (ColomboSouth Co-operative Society). He was interdicted by letter without a stated reasonand without pay. It was known that he was alleged to have been responsible forshortages at four places where he had worked between 16.3.94 to 16.9.77. Nocharge sheet was served on him for 14 years until 1.1.92. The disciplinaryproceedings were concluded only in August 1994 after the court had given leaveto proceed. By letter dated 2.9.94 he was informed that his services wereterminated with effect from 14.10.77.
Two sets of proceedings, criminal and civil, intervened: Two prosecutions forcriminal breach of trust, were launched but withdrawn in December 1981 andFebruary 1982 and an arbitration commenced in 1979 and concluded with anaward on 16.12.81 holding petitioner responsible for shortages to the value ofRs. 121,691.89. The petitioner appealed but on 6.8.92 the Registrar of Co-operative Societies dismissed the appeal and affirmed the award. The petitionerthen applied for writs of Certiorari and Mandamus to the Court of Appeal and thisapplication is still pending.
The petitioner alleged political victimization contrary to Article 12(2).
The 2nd respondent took a preliminary objection that the application was timebarred.
Held:
The 2nd respondent has not given any satisfactory explanation for the delay incommencing and concluding the disciplinary proceedings. A charge sheet wasissued on 1.1.92 and awarded on 15.10.92.
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The petitioner cannot complain of political victimization because the law at thattime provided no remedy, Articles 12(2) and 126 do not apply retrospectively.
it was by no means obvious that the application was time barred, and it isdifficult to identify the precise date when prolonged delay might become denial ofequal protection; indeed it might well have been argued that, this was acontinuing infringement; or that the dismissal itself would have been aninfringement, and therefore the complaint made was of an infringement which wasthen imminent. Hence the objection was not permitted.
Delays in regard to criminal proceedings are not delays by executive oradministrative action. So are arbitration proceedings as they are judicial in nature.The disciplinary proceedings stand on a different footing. The powers of a Co-operative Society in relation to its employees are subject to the statute, theregulations made thereunder and the directions of the Co-operative EmployeesCommission established under the Co-operative Employees' Commission ActNo. 12 of 1972. Disciplinary action and dismissal are subject to appeal or reviewby the Commission. Employees of Co-operative Societies thus enjoy a status, inrelevant respects similar to that of public officers; their position is significantlydifferent to that of private sector employees. Disciplinary action is governed bystatutory provisions rather than by contract. Disciplinary action by a Co-operativeSociety – interdiction, framing charges, holding inquiries and dismissal – is“administrative" action within the meaning of Article 126.
Article 12(1) should not be restricted to the protection only of liberty; it must beextended to the protection of livelihood. The Constitution and the law providesafeguards for liberty. In the same way the Co-operative Employees' CommissionAct and regulations provides “protection" for the livelihood of an employee. Someof those safeguards are set out in the Co-operative Employees' Commission(General) Regulations 1922. An employee is assured of protection for hislivelihood: notice of the charges on which he risks deprivation of his livelihood; anopportunity to reply and to defend himself; a fair inquiry procedure and a right ofappeal. The petitioner's complaint is not that he was directly deprived of thosesafeguards; but only of the delay in the proceedings. Justice delayed is justicedenied: for the very good reason that delay may result in the denial of thesubstance of a fair trial, although all the forms are solemnly observed. Delay mayresult in essential witnesses and documents becoming unavailable, andrecollections slowly fading; in legal expenses gradually becoming even moreunbearable and in sapping the will to fight on for justice. All the safeguards maybe there as a matter of form, but the substance of the protection of the law will belacking. Protection delayed is protection denied.
All delay is unacceptable. As to what amount of delay would be inordinate,what is a reasonable time, may vary from case to case. But in regard toemployees interdicted without pay pending inquiry, no legislative intention toacquiese in proceedings being dragged on for years can be assumed.Interdiction without pay prevents an employee accepting employment elsewhere
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and where it lasts a long period seriously prejudices livelihood. A subsidiaryconsideration is that the petitioner could not seek his remedy in the LabourTribunal because this right was excluded by section 39 of the Co-operativeEmployees' Commission Act until that section was amended by Act, No. 51 of1992.
There has therefore been a denial of one important protection which the lawprovided for the Petitioner, upon interdiction without pay, in respect of hislivelihood that disciplinary proceedings, which could have resulted in deprivinghim of his livelihood, should have been completed without inordinate delay.Howsoever the boundary between permissible and unacceptable delay isdemarcated; the delay of 16 years which had occurred when the petitioner cameinto Court was manifestly excessive.
When the petitioner was interdicted the petitioner was in the prime of his lifeand would have passed the normal age of retirement by the time the validity of hisdismissal was determined in a court or tribunal of first instance. Delay has robbedhim, and his family of half his working life.
It is not enough for the petitioner to show that he has been denied theprotection of the law. He must also show that he has been denied equalprotection – that he was treated less favourably than others similarly situated. Thepetitioner has not produced any evidence of delays in similar cases. But this isnot an inflexible principle of universal application. The facts of each case must beconsidered. Where an employee alleges a denial of equal protection because hewas compelled to participate in a disciplinary inquiry without ever being told whatthe charges against him were, no court would require evidence to prove at leastone other contrary instance. The court must take judicial notice that ordinarily -and not merely in a few instances – charges are disclosed prior to inquiry.Likewise, that however serious the laws delays, it does not take over 10 years fora charge sheet to be served, and over 15 years for a disciplinary inquiry to becompleted.
The Petitioner's fundamental right to the equal protection of the law has beeninfringed and he is entitled to relief. Liability in respect of shortages and whethertermination was justified are questions to be decided in other proceedings. Hissuccess or failure in those proceedings must not affect these proceedings.
Cases referred to:
Sebastian Fernando v. Katana MPCS [1990] 1 Sri LR 342.
Hakmana MPCS v. Fernando [1985] 1 Sri LR 272.
Perera v. Jayawickreme [1985] 1 Sri LR 285.
Weligama MPCS v. Daluwatte[ 1984] 1 Sri LR 195.
APPLICATION for relief for the infringement of the fundamental right of equalprotection of law guaranteed by Article 12(1) of the Constitution.
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P. K. E. Perera for petitioner.
Samith de Silva SC for 1st and 3rd respondent.Tudor Dharmadasa for 2nd respondent.
B. V. S. Silva for 4th respondent.
Cur. adv. vult.
November 04, 1994.
FERNANDO, J.
This application involves the question whether unexplained andinordinate delay by a co-operative society in commencing andconcluding disciplinary proceedings against an employee,interdicted without pay, amounts to a denial of the equal protection ofthe law guaranteed by Article 12(1).
INVOKING THE JURISDICTION OF THIS COURTThe Petitioner had been an employee of the 2nd Respondent co-operative society at least since 1972 (and perhaps even from 1962).He made his complaint in an affidavit dated 29.3.94 to this Court.This was not an application in conformity with Rule 44(1). Order wasmade that it be treated as a “special" application. This order wasreferable to Rule 44(7) of the Supreme Court Rules, 1990, though thiswas not specified. The matter came up on 2.5.94; the Petitioner wasunrepresented, and the Court inquired from Mr. P. K. E. Perera,Attorney-at-Law, who was present in Court, whether he could assistthe Petitioner. In the best traditions of the legal profession, Mr. Pereraconsented, and thereafter assisted the Court, presenting his client'scase with competence and restraint. Further pleadings werethereafter filed. All these steps were in substantial conformity withRule 44(7) of the Supreme Court Rules, 1990, and Rule 2(b) of theSupreme Court (Assigned Counsel) Rules, 1991, and no objectionhas been taken on the ground of any procedural defect.
On 21.6.94 leave to proceed was granted. State Counsel whoappeared on notice, on behalf of the Attorney-General, undertook totake steps to have the disciplinary inquiry completed.
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THE FACTSThe Petitioner was a storekeeper employed by the 2ndRespondent. He was interdicted by letter dated 14.10.1977 without astated reason, and without pay. But it is known that he is alleged tohave been responsible for shortages at four places where he hadworked between 16.3.1974 and 16.9.1977.
No charge sheet was served on him for over 14 years, until 1.1,92.It is that delay which is his principal ground of complaint. Thereafter,the disciplinary proceedings were concluded only in August 1994,after this Court had granted leave to proceed. He was informed byletter dated 2.9.94 that his services had been terminated with effectfrom 14.10.77. This delay too has some relevance to the Petitioner’sclaim that the equal protection of the law has been denied to him.
Two sets of proceedings, criminal and civil, intervened. Inconsequence of complaints made to the Police in October 1977, twoprosecutions for criminal breach of trust were launched in theMagistrate's Court of Colombo; these were withdrawn in December1981 and in February 1982. The dispute between the 2ndRespondent Society and the Petitioner was referred to arbitrationunder section 58 of the Co-operative Societies Law, No. 5 of 1972:those proceedings commenced in 1979, and the arbitrator made hisaward on 16.12.1981, holding the Petitioner responsible for shortagesto the value of Rs. 121,691.89/-; the Petitioner appealed, having beencompelled to deposit one-tenth of the amount of the award, in view ofthe relevant regulation (as to the validity of which I expressed seriousdoubts in Sebastian Fernando v. Katana MPCS <’), particularly as itmight operate to deny the bona fide exercise of the right of appealgiven by the principal enactment). On 6.8.92, the Registrar of Co-operative Societies dismissed the Petitioner's appeal and affirmed theaward. The Petitioner then made an application to the Court ofAppeal for Certiorari and Mandamus, and that application is stillpending.
The Petitioner made some effort to get matters expedited. He hasproduced a copy of a letter dated 10.3.83, by which he complained
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of the delay in regard to the disciplinary inquiry, to the Co-operativeEmployees’ Commission, the 3rd Respondent, established under theCo-operative Employees' Commission Act, No. 12 of 1972. The 3rdRespondent, however, says that the first intimation it had of the delayin those proceedings was on 9.7.91 when the Presidential Secretariatsent it a copy of a letter dated 8.4.91 which the Petitioner had sent tothe President. After making some inquiry from the 2nd Respondent,on 6.12.91 the 3rd Respondent directed the 2nd Respondent tocomplete the proceedings by 15.3.92. Thereafter the Petitioner wroteto the Co-operative Employees’ Commission of the Western Province,the 4th Respondent, on 17.6.93, complaining of the delay, butdespite correspondence over the next six months, the 4thRespondent did not direct the 2nd Respondent to conclude theinquiry. In regard to his pending appeal to the Registrar of Co-operatives, the Petitioner has stated in his application to the Court ofAppeal that the appeal was delayed because the officer dealing withit had some difficulty in reading the transcript of the proceedings;and that he made several complaints in this respect, and even to theParliamentary Petitions Committee. Even after the problem regardingthe transcript was resolved, the appeal was not dealt withexpeditiously.
The 2nd Respondent has not given any satisfactory explanation forthe delay in commencing and concluding the disciplinaryproceedings. A charge sheet was first issued only on 1.1.92; thePetitioner submitted his explanation; and the inquiry thencommenced. The charge sheet was amended on 15.10.92.Apparently because of ill-health, the inquiry had to be resumedbefore another officer, and was not concluded – despite complaintsto the President and to Parliament – even by 29.3.94 when thepetitioner complained to this Court,
POLITICAL VICTIMIZATIONThe Petitioner has alleged that his interdiction was motivated bypolitical victimization, contrary to Article 12 (2). However, that was inOctober 1977, and the Petitioner cannot complain of that for manyreasons; the law at that time did not provide a remedy, the then
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Supreme Court had no jurisdiction in respect of such a complaint,and Articles 12(2) and 126 do not apply retrospectively to actsdone before the 1978 Constitution. Leave to proceed was notgranted in respect of Article 12(2), and I make no finding on thatissue.
PRELIMINARY OBJECTIONThe objection that the application was out of time had been takenin the affidavit filed; on behalf of the 2nd Respondent. Although thiswas a preliminary objection which should have been taken at thecommencement of the hearing, learned Counsel for the 2ndRespondent failed to do so. and mentioned it only towards the end ofthe submissions on behalf of the Petitioner. It was by no meansobvious that the application was time-barred, and it is difficult toidentify the precise date when prolonged delay might become denialof equal protection; indeed, it might well have been argued that thiswas a continuing infringement; or that the dismissal itself would havebeen an infringement, and therefore that the complaint madein March 1994 was of an infringement which was then onlyimminent. In those circumstances, we did not permit the objection tobe taken.
EXECUTIVE OR ADMINISTRATIVE ACTIONLearned Counsel for the 2nd Respondent submitted that in anyevent the Petitioner's grievance was outside the scope of Article 126because the disciplinary proceedings taken (or omitted) by the 2ndRespondent did not constitute “executive or administrative” action. Itis true that many of the duties, and obligations of a co-operativesociety arise from contract – as between members inter se, or asbetween members and the society, or as between the society andthird parties; and many of its functions are purely commercial. Allthese probably involve no “executive or administrative* action.However, a co-operative society enjoys certain privileges conferredby the executive; thus section 22 of the Co-operative Societies Law,No. 5 of 1972, empowers the Minister by order to compel producers,even if not members of a co-operative society, to sell all or any part oftheir produce to or through that society.
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But the question for decision now is whether the delays which thePetitioner complains of, were caused by “executive or administrative”action. Delays in regard to the criminal proceedings are clearlyexcluded. The arbitration proceedings were also judicial in nature(see S.C. References Nos. 1-17/91. S.C.M. 27.3.92), and thosedelays too cannot be the subject of complaint in proceedings underArticle 126. However, the disciplinary proceedings stand on adifferent footing. The Co-operative Employees’ Commissionestablished by Parliament consists of members appointed by theExecutive; in regard to appointment, dismissal and disciplinarycontrol, it has powers which are in some ways comparable to thePublic Service Commission, though certainly not as extensive. TheCo-operative Employees’ Commission Act, No. 12 of 1972, wasenacted to “make special provision in respect of employees of co-operative societies"; and the Commission has power under section11 to determine all matters regarding recruitment and promotion(including qualifications, examinations, salary scales, and terms andconditions of service), and the procedure in regard to disciplinaryaction; to call upon any society to complete disciplinary inquirieswithin a time stipulated by it, and to hear appeals arising fromdisciplinary orders. Section 23 provides that no employee shall bedismissed or punished except in accordance with the provisions ofthe Act and the regulations made thereunder.
The powers of a co-operative society in relation to its employeesare thus subject to the statute, the regulations made thereunder, andthe directions of the Commission; disciplinary action and dismissalare subject to appeal or review by the Commission. Employees ofco-operative societies thus enjoy a status, in relevant respects similarto that of public officers; their position is significantly different to thatof private sector employees. Disciplinary action is governed bystatutory provisions rather than by contract.
I hold that disciplinary action by a co-operative society -interdiction, framing charges, holding inquiries, and dismissal – is"administrative" action within the meaning of Article 126.
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EQUAL PROTECTION OF THE LAWThe equal protection of the law is perhaps most significant inrelation to criminal law and procedure, because there a liberty is atrisk. But liberty without livelihood is no better that livelihood withoutliberty, and in the absence of plain words in the Constitution,restricting Article 12(1) to the protection only of liberty, I hold that itextends to the protection of livelihood.
There is no doubt that the "protection" here claimed is theprotection "of the law* (and not of contractual or property rights).Because what the Petitioner complains of is the denial of rights underthe Act and the regulations.
What "protection* means in relation to liberty is an useful guidealso in regard to livelihood. The Constitution and the law providesafeguards for liberty. Thus Article 13 provides against arbitrarydeprivation of liberty: by allowing safeguards such as legalrepresentation, and a fair trial by a competent court. The Code ofCriminal Procedure Act provides safeguards such as making thecharges known to the accused, the manner of answering thecharges, and the conduct of a criminal trial. Such safeguardsconstitute the “protection* which the law extends for liberty. In thesame way, the Co-operative Employees’ Commission Act and theregulations provide “protection” for the livelihood of an employee.Some of those safeguards are set out in the Cooperative Employees’Commission (General) Regulations, 1972:
CHAPTER III
REGULATIONS GOVERNING THE CONDUCT OF CO-OPERATIVE EMPLOYEES
69. The Commission may frame Rules specifying othersituations to regulate the conduct of those connected with or
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employed in Co-operative Societies to enable them to maintainhigh standards of honesty and probity, including situationswhere employees are arrested for debt or are declared
insolvent.
CHAPTER IVMISCONDUCT
73(1) Subject to such Rules as may be framed by theCommission the Management of the co-operative society shallbe responsible for initiating disciplinary inquiries againstemployees suspected or alleged to be guilty of misconduct.
Such inquiries may be initiated whether any criminalproceedings are taken or not and shall be proceeded with anda decision given irrespective of the progress of any … criminalcase.
(a) MINOR OFFENCES
74(1) Where the misconduct is of a minor nature, the chargemay be stated in writing …
Where the misconduct is of a minor nature … and it isnecessary to call witnesses … the Board of Management…may nominate a senior official of the Society to hold an inquiryand submit a report…
In such inquiries as are referred to in Regulation 74(1) abovethe Inquiry Officer may follow such procedure as he thinksappropriate provided that the following principles are adopted:
that the accused employee is informed in writing what thealleged offences are:
the accused officer or his representative is allowed toexamine and if necessary, take copies of any documentsthat may be used in evidence against him;
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the accused employee or his representative is allowed toask questions of witnesses
the. accused employee or his representative is allowed toproduce witnesses and/or documents in his defence.
The evidence given at the inquiry shall be taken down inwriting by the Inquiry Officer…
The Inquiry Officer having inquired into the matter willforward his report thereon …
Where the Board of Management does not take action underRegulation 73(1) above, or where urgent action is necessary,the General Manager … may exercise these functions … indoing so the General Manager may hold the inquiry himsfelf ornominate someone else.
Where an employee desires witnesses to be summoned …
… the Inquiry Officer shall not be bound by the rules ofevidence…
The Inquiry Officer shall also endeavour to complete theinquiry as quickly as possible and in any case not later than onemonth from the 1st date of inquiry. Where for any reasoncompletion within one month is not possible he shall report thematter to the Board of Management and in any case the inquiryshall not exceed two months from the 1st date of inquiry withoutthe express permission of the Commission.
Where an employee fails to answer any charges … he shallbe deemed to accept the truth of the charges …
The Board of Management may impose such punishment asit considers appropriate if the employee is found guilty.
The Commission may call for the record …
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(b) GRAVE OFFENCES
Where the employee is suspected or alleged to be guilty ofgrave misconduct as specified in Appendix II a charge shall beserved on him and his explanation called for within areasonable period of time, which shall not exceed six weeks.
Where the employee admits guilt to any of the charges, theBoard of Management may either proceed to take action on theadmission or decide to hold an inquiry.
Before an inquiry is held the accused employee shall begiven a list of the witnesses … [and] a list of the documents andinformed where [they] may be inspected ,,.
In any inquiry that is held the Inquiry Officer shall follow theprinciples as laid down in regulation 69(3).
… the Board … may … interdict an employee …
The Commission may call for the record and take suchaction as it considers necessary in terms of Regulation 77above.
An employee is thus assured of protection for his livelihood: noticeof the charges on which he risks deprivation of his livelihood: anopportunity to reply and to defend himself; a fair inquiry procedure,and a right of appeal.
The Petitioner's complaint is not that he was directly deprived ofthose safeguards: but only of the delay in the proceedings. It is trite,but nevertheless true, that justice delayed is justice denied: for thevery good reason that delay may result in the denial of the substanceof a fair trial, although all the forms are solemnly observed. Delaymay result in essential witnesses and documents becomingunavailable, in recollections slowly fading, in legal expensesgradually becoming ever more unbearable, and in sapping the will tofight on for justice. All the safeguards may be there as a matter of
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form, but the substance of the protection of the law will be lacking.The aim of the protection of the law is to ensure justice, and so whenthere is inordinate delay, it can equally truly be said: protectiondelayed is protection denied.
All delay is unacceptable, but that is not enough. What amount ofdelay is to be regarded as inordinate ?
There appears to be a lacuna in the Regulations: although they setout in fair detail the inquiry procedure in respect of minor offences,similar provision is lacking for grave offences. Regulation 87 seemsto have been intended to incorporate some, if not all, of theprocedural provisions set out in Regulations 74 to 80. butunfortunately it refers to a non-existent Regulation 69(3). (There isanother mistake in Regulation 89, which makes reference toRegulation 77 instead of Regulation 83).
Regulation 73 makes it clear that the 2nd Respondent was notobliged to defer disciplinary action until the conclusion of criminalproceedings. In the case of grave offences, Regulation 84 requiresan employee to submit his reply to the charge sheet within a"reasonable time", and goes on to indicate that a delay of over sixweeks would not be reasonable. If so, the Regulations could not haveconsidered a delay of 14 years to be ‘reasonable' or permissible forserving a charge sheet: and I cannot believe that the Regulationscontemplated that it would take more than a few months to serve acharge sheet. In the case of minor offences, Regulation 80 disclosesan intention that a disciplinary inquiry be completed within a matter ofmonths; and further delay requires the permission of the Commission.Even assuming that Regulations 74 to 80 have not been madeapplicable to grave offences, it would be quite unreasonable toassume that there was no desire for comparable speed in regard tograve offences. Section 11(1) (e) of the Co-operative Act gives powerto the Commission to call upon a co-operative society to completedisciplinary inquiries within a time to be stipulated by it, and that isreferable to a legislative intention that disciplinary proceedingsshould be concluded expeditiously. The 3rd Respondent Commissiongave such a direction to the 2nd Respondent on 6.12.91 that the
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proceedings should be completed by 15.3.92, but even two yearslater, when the Petitioner came to this Court, the proceedings werestill pending.
What is a reasonable time may vary from case to case. But inregard to employees interdicted without pay pending inquiry, I cannotassume a legislative intention to acquiesce in proceedings beingdragged on for years. In this connection Hakmana MFCS v.Ferdinando121. is of some relevance. It was held that Mandamus didnot lie to enforce compliance with a circular issued by the 3rdRespondent Commission in 1973, which provided for payment ofhalf-salary to an interdicted employee if disciplinary proceedings hadnot been completed in six months; indeed, doubts were expressedas to the power of the Commission to issue such a circular. Thatcircular has not been produced as a document in this case, nor is itknown whether it was applicable to the Petitioner. However, thatcircular – even if unauthorised and unenforceable – does show that,consistently with a legislative desire for expedition, the Commissionconsidered that, in general, six months was sufficient for adisciplinary inquiry. That does not mean that delay beyond sixmonths is unreasonable or inordinate, but it does indicate thatpermissible delay, for this purpose, must be reckoned in months andnot years.
Another relevant circumstance is that it may well be a breach ofthe contract of employment – warranting another charge sheet – foran employee under interdiction to accept employment elsewhere.Thus interdiction without pay for a long period seriously prejudiceslivelihood.
A subsidiary consideration is that the Petitioner had no remedy in aLabour Tribunal. Learned Counsel for the 2nd Respondentstrenuously contended that the Petitioner could have applied to aLabour Tribunal on the basis of a constructive termination. However,learned Counsel for the 4th Respondent drew our attention to section39 of the Co-operative Employees Commission Act, which excludedthat right, until that section was amended by Act No. 51 of 1992.
I therefore hold that there has been a denial of one importantprotection which the law provided for the Petitioner, upon interdiction
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without pay, in respect of his livelihood: that disciplinary proceedings,which could have resulted in depriving him of his livelihood, shouldhave been completed without inordinate delay. I make no attempt todemarcate the dividing line, between permissible and unacceptabledelay: howsoever that boundary is demarcated, in this case it is clear- as night from day – that the delay of 16 years which had occurredwhen the Petitioner came into Court was manifestly excessive. As tothe effect of that delay, it will be seen that the Petitioner wheninterdicted was yet in his prime, and will have passed the normal ageof retirement by the time the validity of his dismissal is determined ina court or tribunal of first instance. Delay has robbed him, and hisfamily, of half his working life.
It is not enough for the Petitioner to show that he has been deniedthe protection of the law. He must also show that he has been deniedequal protection – that he was treated less favourably than otherssimilarly situated. Since the Petitioner has not produced any evidenceof the delays in similar cases, it is contended on behalf of the 2ndRespondent (relying on Perera v. Jayawickreme(3’), that the Petitionerhas failed to prove this essential ingredient. I doubt whether thatdecision must be regarded as laying down an inflexible principle ofuniversal application: the facts of each case must be considered. Ifan employee alleges a denial of equal protection because he wascompelled to participate in a disciplinary inquiry without ever beingtold what the charges against him were, would a Court demandevidence to prove at least one other contrary instance? I think not.The Court must take judicial notice, that ordinarily – and not merely ina few instances – charges are disclosed prior to inquiry. Likewise,that however serious the law's delays, it does not take over ten yearsfor a charge sheet to be served, and over fifteen years for adisciplinary inquiry to be completed. However, the judgment of thisCourt in Hakmana MPCS v. Ferdinando confirms what I would havebeen prepared to assume: there a charge sheet was issued within sixmonths. In Weligama MPCS v. Daluwatte 141, a charge sheet, thoughdelayed, was issued in eight years.
I therefore hold that the Petitioner’s fundamental right to the equalprotection of the law has been infringed.
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RELIEF
Whether the Petitioner is liable to pay any sum to the 2ndRespondent in respect of shortages, and whether his termination isjustified, are questions to be decided in other proceedings in othercourts and tribunals. His success or failure in those proceedingsmust not affect these proceedings, and vice versa. The Petitioner hasalready been denied the equal protection of the law, and for that he isentitled to relief, independent of his prospects of success in otherproceedings.
The 2nd Respondent has not given any reason for the delay. Evenif I were to make every possible allowance, in favour of the 2ndRespondent, and to assume, contrary to Regulation 73(2), that therewas some justification for awaiting the outcome of the criminalproceedings, and the arbitrator's award, and that 2 1/2 years was notunreasonable for the disciplinary inquiry to be concluded,nevertheless the 2nd Respondent has no excuse for not framingcharges in 1982. This would have eliminated 10 years delay. ThePetitioner's livelihood has been affected during this period. Inaddition, he would have undergone much mental anguish andanxiety. I consider it just and equitable to assess and awardcompensation in a sum of Rs. 100,000.
In regard to costs, the Supreme Court (Assigned Counsel) Rules,1991, authorise the Court to order payment of a sum of Rs. 1,000 ascosts to an Attorney-at-law assigned by the Court in a fundamentalrights application. It is not necessary to do so in this case, as this iseminently one in which the Petitioner's costs should be paid by the2nd Respondent. I direct the 2nd respondent to pay the Petitioner asum of Rs. 2,500 as Counsel’s fees and Rs. 2,500 for other expenses.
I grant the Petitioner a declaration that his fundamental right underArticle 12(1) has been infringed by the 2nd Respondent, and directthe 2nd Respondent to pay the Petitioner a sum of Rs. 100,000 ascompensation and Rs. 5,000 as costs.
PERERA, J. -1 agree.
WUETUNGA, J. -1 agree.
Relief granted.