NIMAL BANDARA

VS.

1. NATIONAL GEM AND JEWELLERY AUTHORITY AND OTHERS

SUPREME COURT
S.E.WANASUNDERA P C.,J.
ANIL GOONERATNE J.
VIJITH K. MALALGODA P.C, J.
SC FR CASE NO. 118/2013
30.11.2017.

Article 12(1), 14(1) (g) of the Constitution- Vacation of post-Mala fides - Misrepresentation of facts - Uberrima fides - Leave - Medical leave - Loss - Universal Declaration of Human Rights - Commission to Investigate Bribery or Corruption.

Petitioner was the Director General of the 1st Respondent Authority. Appointed on 11.08.2011. It is pleaded in the Petition that the Petitioner was able to make the 1st Respondent -Authority, a profit making organization. In this case the main issue is that the Petitioner was sent on vacation of post as stated in para 9-15 of the Petitioner.

Respondents plead mala fides of Petitioner, misrepresentation of facts by him, suppression of facts and lack of uberrima fides.

HELD:

1. All the notes pertaining to Petitioners absence P8 (a) to P8 (e) are addressed to Senior Manager called (P and A) Acting. P8 (d) has in fact been submitted to the Chairman 1st Respondent Authority. All these notes have been acknowledged in the note itself. P9 is a medical certificate. Leave has been recommended from 22.02.2013 to 01.03.2013. This Court has no reason to dispute any of the above.

2. Material made available to court by either party is sufficient to come to a conclusion that the then Chairman of the 1st Respondent Authority has due to his own reasons which is tainted with malice has taken the step to discontinue the Petitioner's employment. This court having weighed the pros and cons of the case in hand has to make a just and

equitable order, and as such need to intervene in the circumstances of the case. I am convinced with the Petitioner's version.

APPLICATION for Violation of Fundamental Rights.

Cases referred to:

1. 1966 (1) AER 689 at 694

Nigel Hatch P. C. with S. Galappaththi and S. Illangage for the Petitioner Kushan D'Alwis P.C. with Kaushalya Nawarathna and Rajiv Wijesinghe for the 1st, 2nd, 5th, 6lt, 8th and 9th Respondents.

Ms. Yuresha de Silva S.S.C. for the Attorney General

Cur.adv.vult.

ANIL GOONERATNEJ.

The Petitioner in this application was the Director General of the 1st Respondent Authority. He was appointed to the said post on 11.08.2011. (vide P4, P5 & P6). In paragraph 8 of the petition it is pleaded that the 1st Respondent Authority was running at a loss and the Petitioner was responsible for curbing such a loss and bring it to be a profitable organisation, as he introduced several progressive changes in the business. As such by letter P7 the 2nd Respondent allocated further duties to the Petitioner. In this case the main issue, is that the Petitioner was sent on vacation of post in the manner pleaded in paragraph 9 to 15 of the petition and in the corresponding affidavit. The Supreme Court on 05.10.2013 granted Leave to Proceed in terms of Articles 12(1) and 14(1)(g) of the Constitution.

The Respondents have taken up the following preliminary objections in their statement of objections.

(1) Petitioner does not disclose an infringement or an imminent infringement - of a fundamental right.

(2) Mala fides of Petitioner
(3) Misrepresentation of material facts
(4) Suppression of material facts
(5) Lack of Uberrima Fides

No doubt the Respondents pleadings refer to same but unfortunately none of the above was substantiated to court on behalf of Respondent in an acceptable manner. It is also pleaded that the Petitioner whilst discharging his official duties acted in a harmful and prejudicial manner which is harmful to the interest of 1st Respondent Authority. It is stated that the Petitioner failed and neglected to discharge the official duties diligently and as a result of irresponsible and negligent conduct of the Petitioner an internal panel of inquiry was held (X1 & annexure to same marked X2). In the objection of the Respon