RANASINGHE AND ANOTHER

Vs.

CEYLON PETROLEUM STORAGE TERMINALS LTD AND OTHERS

SUPREME COURT
ALUWIHARE, J.
DEHIDENIYA, J.
FERNANDO, J.
SC/FR/244/2017
JUNE 13, 2018

Fundamental rights-Article 126(2) of the Constitution-Time bar-Human Rights Commission of Sri Lanka Act, No. 21 of 1996, section 13(1)-Burden of proof

The petitioners alleged that their fundamental rights had been infringed by the respondents' failure to grant the promotions that the petitioners claimed they were duly entitled to. When the matter was taken up for support, a preliminary objection was raised by the respondents that the application had been filed four months and eight days after the alleged violation, and hence was time barred in terms of Articles 17 and 126 of the Constitution. The petitioners' position was that they had filed a

complaint with the Human Rights Commission of Sri Lanka (HRC) prior to coming before the Supreme Court, and that in view of section 13(1) of the Human Rights Commission of Sri Lanka Act, No. 21 of 1996, time freezes and therefore the application was not time barred. The petitioners also alleged that up to date there had been no formal notification of the date of the promotions that triggered the violation of their fundamental rights, and that they had complained to the HRC based on an assumption that the promotions were made on a particular date. There was no evidence that an inquiry by the HRC was going to be held, or had been held, at the time of the application to the Supreme Court.

Held:

1. The time period of one month prescribed in Article 126(2) is mandatory. However, in an exceptional or appropriate case, the court has a discretion, or even a duty, to entertain an application made out of time.

2. The petitioners had gone before the HRC well within the stipulated period of time to obtain relief for themselves. There was no evidence to suggest that the petitioners went before the HRC with the desire of invoking the jurisdiction of the Supreme Court, or to circumvent the period of limitation in Article 126 or for any other intention or ulterior motive.

3. What is material is the aggrieved party had made a complaint to the HRC within the mandatory period. The acknowledgement of the complaint by the HRC would trigger and set in motion the mechanics and workings of the HRC, culminating in a communique pertaining to the findings on the complaint. An aggrieved party has no say or control over the proceedings before the HRC and cannot be faulted for the delay or non-holding of an inquiry by the HRC, which may be for good and justifiable reasons.

4. ln the absence of any material that the HRC had come to a finding pertaining to the petitioners' complaint, the court has to assume that the matter is still pending before the HRC and that the HRC is taking steps with regard to the complaint within the four corners of the Human Rights Commission Act. The petitioners are entitled to the benefit of section 13(1) and their application to the Supreme Court is not time barred.

Cases referred to:

1. Gamaethige v. Siriwardana [1988] 1 Sri LR 384 at 401-402
2. Alawala v. IGP (SC/FR/219/2015, SC Minutes of 15.02.2016) at 8
3. Romesh Coorey v. Jayalath [2008] 2 Sri LR 43
4. Alles v. Road Passenger Services Authority (SC/FR/448/2009, SC Minutes of 22.02.2013)
5. Kithsiri v. Faiszer Musthapa (SC/FR/362/2017, SC Minutes of 10.01.2018)
6. Manoranjan v. Chandrasiri (SC/FR/261/2013, SC Minutes of 11.09.2014)
7. Ranaweera v. Siriwaradena [2008] 1 Sri LR 260
8. Kariyawasam v. Southern Provincial Road Development Authority [2007] 2 Sri LR 33
9. De Zoysa v. Dissanayake (SC/FR/206/2008, SC Minutes of 09.12.2016) at 13

APPLICATION under Article 126 of the Constitution for infringement of Fundamental Rights.

Harsha Fernandowith Chamith Senanayakeand Ruvendra Weerasinghe for the Petitioners.

Sanjeewa Jayawardena, P.C., for the 1st-4th and 6th-12th Respondents.

Yuresha De Silva, S.S.C., for the Attorne