PUSHPAKUMARA

Vs.

SURVEYOR GENERAL AND OTHERS

COURT OF APPEAL
J. DE SILVA. J.
CA/WRIT/66/2012
JANUARY 28, 2019

Administrative Appeals Tribunal-Article 59(2) of Constitution-Purposive interpretation-Powers of the Administrative Appeals Tribunal in an appeal

The petitioner, a government surveyor, was issued a vacation of post notice, which he unsuccessfully appealed to the Public Service Commission (PSC). The petitioner appealed to the Administrative Appeals Tribunal (MT) against the decision of the PSC. The AAT, whilst holding that the vacation of post notice was not warranted, took the view that the petitioner was guilty of insubordination and therefore imposed certain conditions under which the petitioner was to be reinstated. The petitioner challenged the said decision by way of a writ and argued that under Article 59(2) of the Constitution, the AAT only had the power to rescind the decision of the PSC but did not have the power to add any further conditions as the appealed decision was already rescinded.

Held:

1. The power of the AAT under Article 59(2) of the Constitution should be construed as impliedly authorising everything that can fairly be regarded as incidental or consequential to the power itself.

2. The word "rescind" in Article 59(2) of the Constitution cannot be narrowly interpreted to mean that the AAT can only rescind the decisions of the PSC and is unable to impose any further conditions.

3. The AAT sitting in appeal over the disciplinary authority, the PSC, should have the same powers as the PSC had in considering the appeal.

Cases referred to:

1. Macfoy v. United Africa Company (1961) 3 All ER 1169 at 1172
2. lssadeen v. Commissioner of National Housing and Others [2003] 2 Sri LR 10
3. Dharmaratne v. Samaraweera and others [2004] 1 Sri LR 57
4. Jayaweera v. Assistant Commissioner of Agrarian Services [1996] 2 Sri LR 70
5. Sarath Hulangamuwa v. Siriwardena, Principal,Visakha Vidyalaya [1987] 1 Sri LR 275, 278
6. Biso Menike v. Cyril De Alwis and Others [1982] 1 Sri LR 368

APPLICATION for Writ of Certiorari.

Rohan Sahabandu, P.C., with Chathurika Elvitigala and Vajirapani Seneviratne for the Petitioner.

Kanishka De Silva, S.S.C., for the Respondents.

cur. adv. vult

June 21, 2019

J. DE SILVA, J.

The Petitioner was at all times material to this application a Government Surveyor serving at the Surveyor General's Department. He was asked to report to the Regional Office from 01.10.2007. He did not do so but continued working from his former place and kept sending the relevant papers/journals to the provincial office which were accepted.

The Respondents submit that as the Petitioner continuously failed to comply with the instructions given to him a vacation of post notice dated 05.12.2007 was issued on him stating that he was deemed to have vacated post with effect from 20.11.2007.

The Petitioner appealed against the said notice to the 7th Respondent which was rejected. He then appealed to the Administrative Appeals Tribunal (AAT) which by order dated 03.12.2009 (1R13) held that the conduct of the Petitioner does not show any intention to vacate his post. But the AAT held that his conduct does amount to insubordination. Accordingly, the AAT while annulling the order of the Public Service Commission (PSC) and reinstating the Petitioner imposed the following conditions on account of the fact that he was guilty of insubordination:

(a) Deferment of five annual increments

(b) Period of his absence up to date of resumption should be treated as no pay

(c) He should be attached to a suitable duty station as decided by the Survey general to enable him to supervise and evaluate his performance intensively

The Petitioner claims that the said order of the AAT is ultra vires its powers and seeks a writ of certiorari to quash it.

The principal argument of the learned Presidents Counsel for the Petitioner is that the AAT could not have