LALANI

Vs.

EASTERN UNIVERSITY OF SRI LANKA AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/WRIT/124/2016

Writ of certiorari- Termination of services of a probationer-Right to begin the inquiry-Technical objections-Mala fide

The petitioner's services as the Senior Assistant Bursar of the Eastern University were terminated during her probationary period after an inter partes formal inquiry on charges relating to financial irregularities. The petitioner sought to quash this decision by a writ of certiorari predominantly on the basis that the charge sheet was issued under the hand of the Vice-Chancellor without the prior approval of the University Council.

Held:

1. There is no requirement for a disciplinary inquiry to be conducted to justify the termination of a probationer. Once dismissed from

service during the period of probation, the burden is on the probationer to establish unjustifiable termination whereby he must establish ma/a fides on the part of the employer before the employer is called upon to state his reasons for dismissal.

2. A probationer has no right to challenge the termination on high technical grounds unless the decision is tainted with mala fides.

Cases referred to:

1. Ceylon Trading Co. Ltd v. United Tea Rubber and Local Produce Workers' Union [1986] II CALR 62
2. Ceylon Cement Corporation v. Fernando [1990] 1 Sri LR 361
3. University of Sri Lanka v. Ginige [1993] 1 Sri LR 362
4. Ceylon Mercantile Union v. Ceylon Cold Stores Ltd [1995] 1 Sri LR 261 at 268
5. Jinasena v. University of Colombo [2005] 3 Sri LR 9
6. University of Ruhuna v. Dr. Darshana Wickramasinghe (SC/111/2010, SC Minutes of 09.12.2016)
7. Gunaratne Menikev. Jayatilaka Banda [1995] 1 Sri LR 152 at 157
8. Mary Beatrice v. Seneviratne [1997] 1 Sri LR 197 at 203
9. Quinn v. Leathern [1901] AC 495 at 506
10. State Distilleries Corporation v. Rupasinghe [1994] 2 Sri LR 395 at 400-402

APPLICATION for Writ of Certiorari.

K.G. Jinasena for the Petitioner.

Anusha Fernando, D.S.G., for the 1st-7th Respondents.

H. Withanachchi for the 9th-11th Respondents.

Ershan Ariaratnam for the 12th Respondent.

cur. adv. vult.

September 16, 2019

SAMAYAWARDHENA, J.

The Petitioner's services as the Senior Assistant Bursar of the Eastern University were terminated after an inter partes formal inquiry during her probationary period on charges relating to financial irregularities.

The Petitioner filed this application seeking to quash by way of writ of certiorari:

(a) her interdiction by P14

(b) the charge sheets served on her marked P17 and P20

(c) the termination of her services by P24

(d) the decision of the University Services Appeal Board marked P30

I must straightaway say that it is too late in the day to canvass her interdiction made prior to the formal inquiry. That could at least have been canvassed in the former writ application, which was later withdrawn.

The charge sheets and the decision to terminate services are challenged not on the merits but largely, if not solely, on the technical ground that they did not emanate from the lawful authority.

The Petitioner says that the charge sheet signed by the Vice Chancellor of the University is bad in law as he is not the disciplinary authority of the Petitioner. According to the Petitioner, the relevant disciplinary authority is the University Council (of which the Vice Chancellor is the Chairman). The Respondents do not accept this position on the premise that her appointment as the Senior Assistant Bursar is to the Swami Vipulananda Institute of Aesthetic Studies, which is a Higher Educational Institute established under the Universities Act. On the facts and circumstances of this case, however, there is no necessity for me to rule on that question as it is in my view not decisive to arrive at the final decision in this case. Therefore I assume that the Council of the University is the disciplinary authority of the Petitioner.

Then the Petitioner says