AMARASINGHE

Vs.

REGIONAL DIRECTOR OF HEALTH SERVICES, ANURADHAPURA AND OTHERS

SUPREME COURT
SC/FR/15/2017
DE ABREW, J.
JAYAWARDENA, J.
FERNANDO, J.
NOVEMBER 26, 2018

Fundamental rights-Infringement of Article 12(1) of the Constitution- Establishment Code, Chapter XLVIII-Interdiction without pay pending a disciplinary inquiry-Failure to hold a disciplinary inquiry for an extended period

The petitioner is a public officer who was interdicted without pay following the discovery of a suspected fraud committed by him in the course of his official duties. The petitioner contended that his fundamental rights under Article 12(1) of the Constitution were violated on three bases: (i) that the first charge sheet was issued to him without conducting a preliminary investigation; (ii) that the respondents failed to comply with the provisions of the Establishment Code regarding the procedural steps prior to the commencement of a disciplinary inquiry; and (iii) that there has been a delay of four and a half years in commencing the inquiry during which the petitioner was interdicted without pay.

Held:

1. Under the Establishment Code, a charge sheet is to be issued only if a preliminary investigation discloses a prima facie case against a public officer. This scheme is a safeguard to ensure that disciplinary action is commenced only where justified. However, section 13:1 of the Establishment Code is only a guide and is not a rigid list of mandatory instructions and there is an objective standard inherent in section 13:1. As the Report upon which the charge sheet was based satisfies this standard, there has been a prima facie finding against the petitioner prior to the issuance of the charge sheet.

2. The Disciplinary Authority had examined the preliminary investigation reports and thereafter interdicted and issued a charge sheet on the petitioner. Therefore, there is no merit to the position that the respondents failed to comply with the procedural steps prior to commencing the disciplinary inquiry.

3. The decision of the Disciplinary Authority to suspend the disciplinary inquiry during the period that the petitioner was in remand custody is ex facie reasonable as it is likely to have prevented the petitioner from properly defending himself.

4. The provisions of Volume II of the Establishment Code are both a sword to be wielded against delinquent public officers, as well as a shield that will defend public officers from any arbitrary or capricious actions by their superior officers. Thus, a public officer · charged with grave acts of misconduct under section 31:11 of the Code may be interdicted without pay for more than one year after the date of issue of the charge sheet only in cases where the Disciplinary Authority has exercised reasonable diligence in proceeding with the inquiry.

5. At the point where the Disciplinary Authority ignored the petitioner's request for reinstatement in view of the protracted delay in commencing the inquiry and the substantial prejudice to the petitioner resulting from his interdiction without pay, the respondents lost the entitlement to rely on the exception whereby interdiction without pay is permissible.

6. Under the provisions of the Establishment Code, the Disciplinary Authority was bound to reinstate the petitioner and pay his monthly salary from 5th May 2015 until the conclusion of the disciplinary inquiry and the making of the order. Alternatively, the petitioner ought to have been either placed on compulsory leave or attached to another post. The failure to do so was a violation of the petitioner's rights under section 12(1) of the Constitution.

Cases referred to:

1. Jayasinghe v. Attorney General [1994] 2 Sri LR 74 at 85-86

APPLICATION under Article 126 of the Constitution for infringement of fundamental rights.

Senany Dayaratne with Eshanthi Mendis for the Petitioner.

Sureka Ahmed, S.C., for the