MULTI PURPOSE CO-OPERATIVE SOCIETY, MADAWACHCHIYA VS. KIRIMUDIYANSE AND OTHERS

MULTI PURPOSE CO-OPERATIVE SOCIETY,
MADAWACHCHIYA VS. KIRIMUDIYANSE AND OTHERS

COURT OF APPEAL
RANJIT SILVA.J
LECAMWASAM .J
CA (PHC) 189/04
H.C. ANURADHAPURA 55/2002
NOVEMBER 4,2010
DECEMGER 10,2010

Writ of Certiorari - Constitution Article 140 - Court of Appeal (Appellate Procedure) Rules of 1990-91- Affidavit mandatory - Defective affidavit - Is there a valid application for writ?- Buddhist not affirming - Oaths and Affirmation Ordinance No. 9 of 1985 Civil Procedure Code - Section 438 - Judicial review available -Fair hearing

The Respondent-Petitioner filed a writ application in the High Court seeking mandates in the nature of Certiorari/Mandamus to quash the disciplinary findings or the Co-operative Employees Commission and the Society. The High Court granted the reliefs prayed for. The respondents appealed to the Court of Appeal.

The appellant contended that there was no valid writ application before the High Court as the deponent had not 'affirmed" (this was not raised before the High Court). The appellant further contended that there was undue delay in presenting the writ application to the High Court. It was also contended that in any event no writ lies as it is a simple master and servant contract.

Held:

Per Ranjith Silva.J

"On a consideration of the impugned affidavit I find that the provisions of Section 438 of the Civil Procedure Code have been complied with. The jurat expressly sets out the place and the date on which the affidavit was signed. The affidavit has been signed before a Justice of the Peace. There is specific reference in the jurat that the affidavit

was duly signed by the deponent after having read and understood the contents."

(1) There is no magic in the word "affirm", A particular word should not be allowed to vitiate or invalidate an affidavit which is otherwise regular on 1he face of it. The words solemnly sincerely and truly connote that the deponent is publicly admitting the truth of the contents in the most responsible manner. The absence of a particular word "affirm" referred to in the statute cannot and should not be allowed to stand ill the way of justice, The words must be given a purposive and meaningful construction instead of trying to split hairs on technicalities.

Per Ranjith Silva. J:

"The rationale is that the fundamental obligation of a deponent is to tell the truth and the purpose of an oath or affirmation is to enforce that obligation".

(2) Delay / laches of a party does not bestow a right or privilege on the other to indulge in delay / laches but it is not ethical, proper, just or fair to allow the appellant to rely on the delay on the part of the petitioner in filing the writ application, when they themselves delayed for more that 21 years in framing charges and proceeding against the respondent.

(3) Remedy of judicial review is available where an issue of public law is involved. It is not correct to assume that there is no public law element in an ordinary relationship of master and servant and that accordingly in such a case judicial review would not be available,

(4) Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee public law rights at least making him a potential candidate for administrative law remedies.

(5) The investigation team determined that it was not necessary for the respondent to lead evidence and thereafter had prevented him from leading any evidence - this is a blatant violation of the Petitioner's right to a fair hearing.

APPEAL from the judgment of the High Court of Anuradhapura.

Case referred to:-

1. Chandrawathie vs. Dharmaratne and others 2001 DLR

2. Ratwatte vs. Thilanga Sumathipala and others 200 I 1 Sri LR 55

3. Imaya vs. Orix Leasing Co. Ltd 1999 3 Sri LR 197

4. Gamage Palitha Wickramasiri vs. Pathiranna

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