SUNIL SHANTHA GUNASEKARA

VS.

HETTIARACHCHI DIRECTOR GENERAL OF PENSIONS AND OTHERS

SUPREME COURT
B. P.ALUWIHARE P.C.,J.
ANIL GOONERATNE J.
VIJITH K. MALALGODA P.C, J.
SC FR No. 138/2015
23.10.2017.

Retirement - Pension - Malice - Section 12 of Minutes on Pensions - Charge sheet - Delay - Sri Lanka Principals Services - Termination of proceedings before Magistrate - Preliminary Investigation - Circular no. 29 /90-50% of pension - Article 12 (1) of Constitution.

Petitioner was the principal of St. Aloysius College Galle. He retired on 12.09.2014 on reaching the age of retirement after 37 years of service. He complains that his pension and retirement benefits had been withheld by the authorities. Petitioner informed that he is retired under Section 12 of the Minutes on Pensions, 6 months after the effective date of retirement.

Petitioner alleges a series of malicious actions done by Secretary to the old boys-Association of the above school, and the Secretary was a local politician.

12th Respondent plead that the main allegation against the Petitioner was corruption and irregularities committed in respect of Grade 1 student admissions. Further retirement of Petitioner done as per Public Administration circular no. 29/ 90.

HELD:

1. The procedure laid down in PA Circular 29/90 and provision contained in Section 12 of the Minutes on Pensions has not been correctly observed. A public servant who retired in September 2014 is called upon to face a disciplinary inquiry only in June 9th 2016 is ridiculous. This is nothing but an abuse of the process by the authorities concerned, It is nothing but a clear violation of Article 12 (1) of the

Constitution by the 1st to 13th Respondents. I observe that the persons responsible have in fact abused the available process.

2. It is no excuse to rely on Section 36:4 of Chapter XLVIII of the Establishment Code in the context of the case in hand. This provision contemplates to give the disciplinary authority to hold a formal disciplinary inquiry irrespective of the retirement of the officer. This does not give the authority concerned absolute power to hold an inquiry according to his whims and fancies. The administrative process has to be fair, reasonable, transparent and in today' context absence of malice. It appears to court that the process has been abused and it was utilised to deprive a public servant who worked for 37 years his due pension.

APPLICATION for violation of fundamental Rights.

Case referred to:

1. Wiibert Godawela vs. S. D. Chandradasa and Others ( 1995 ) 2 SLR 338

J.C. Weliamuna PC. with Pasindu Silva for the Petitioner. Parinda Ranasinghe S.D.S.G. for the Attorney General

Cur.adv.vult.

ANIL GOONERATNE J.

The Petitioner in this application was the Principal of St. Aloysius College, Galle who retired from service on 12.09.2014 on reaching the age of retirement at the age of 60 years. He complains that his pension and other retiral benefits have been withheld by the authorities concerned. The averments in the petition indicates that the petitioner was formally informed that he has been retired under Section 12 of the Minutes on Pensions on 28.03.2015, i.e more than 6 months after the effective date of retirement. I also find that a charge sheet had been served on him about 1 year after the date of retirement. This court on 26.05.2015 granted leave to proceed under Article 12(1) of the Constitution. On the said day court inquired from the learned Deputy Solicitor General as to why the Petitioner's commuted pension or a reduced pension has not been paid up to date? Consequently on 08.07.2015 learned Deputy Solicitor General informed court that 50% of the pension would be paid until the

inquiry before court is concluded. I observe that in view of the intervention of court the Petitioner received at least 50/% of the pension.

On a perusal of the petition of the Petitioner it is evident that he joined the Public Serv