KAHAGALAGE AND 5 OTHERS V WIJESEKERA AND 5 OTHERS

KAHAGALAGE AND 5 OTHERS V. WIJESEKERA
AND 5 OTHERS

SUPREME COURT
J.A.N. DE SILVA,CJ.,
AMARATUNGA,J.AND
EKANAYAKE, J.
S.C. (FR) APPLICATION NO. 18/2009
JUNE 11TH 2010

Army Act - Navy Act - Air Force Act - Police order - Constitution - Fundamental Rights - Article 12(1) - Right to equality Article 14(1)(d)-Freedom to form and join a trade union - Article 15(8) - Restriction of fundamental rights recognized by Articles 12(1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law? Force contemplated in Article 15 (8) Nature of service provided? Active server.

The Petitioners who were guards attached to the Railway Protection Force (RPF) alleged that their fundamental rights, guaranteed by Articles 12(1) and 14(1)(d) of the Constitution had been violated by the Respondents. The main complaint was that the members of the 'RPF' were not allowed to form or to become members of any Trade Union. The position taken up by the 1at Respondent was that the 'RPF' is also a force contemplated by Article 15(8)of the Constitution and accordingly, the restriction of the right of the members of 'RPF' to join or to form a trade union is in accordance with the law.

The functions of the Railway Protection Force are limited to the protection of railway property and its workers and commuters who use the railway as their mode of conveyance. Its functions are limited to the activities of the Railway Department including the protection of the commuters.

Held:

(1) The service operating within the Railway Department under the name "Railway Protection Force" is not a 'Force" within the meaning

of Article 15(8) of the Constitution and as such the Standing Order No. 47 which prohibits the members of the Railway Protection Force from forming or joining a trade union is contrary to Article 14(1) (d) of the Constitution.

(2) The Petitioners and other members of the Railway Protection Force are entitled to the freedom to form an join a trade union as declared and recognized in Article 14(1) (d) of the Constitution.

(3) The failure and/or the refusal of the Railway authorities to pay overtime to the members of the Railway Protection Force is a violation of the fundamental rights guaranteed to the Petitioners by Article 12(1) of the Constitution.

(4) The normal period of duty of a member of the Railway Protection Force is eight hours per day and if they have to work for more than eight hours per day due to exigencies of service, they are entitled to be paid overtime. If overtime payment is denied to them it amounts to forced labour.

Per Gamini Amaratunga, J. -

    ", . . . . It is the responsibility of the 1st Respondent to seek budgetary allocations for the payment of overtime to the members of the RPF "

APPLICATION under Articles 17 and 126 of the Constitution for infringement of the fundamental right of equality.

Uditha EgaZahewa with Hemantha Gardiheuia for the Petitioners.

Indika Demuni de Silva, Deputy Solicitor General for the Respondents.

Cur.adv. vult.

May 13th 2010

GAMINI AMARATUNGA, J.

    This is an application filed under and in terms of Articles 17 and 126 of the Constitution by six petitioners who are security guards attached to the Railway Protection Force

(hereinafter referred to as the RPF) alleging infringement of their fundamental rights guaranteed by Articles 12(1) and  14(1)(d) of the Constitution by the respondents. This court has granted leave to proceed for the alleged violation of the petitioners' fundamental rights guaranteed by the aforementioned Article of the Constitution.

    There are two complaints addressed to us by the petitioners in their application. The first and the major complaint of the petitioners is that the members of the RPF are not allowed to form or to be members of an

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