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IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application for mandates on the nature of certiorari and mandamus under article 140 of the constitution. 1. Soratha Priyadarsha Bandaranayake No. 71, Dharshana Mawatha, Liyanagemulla, Seeduwa. Petitioner Court of AppealApplication No. 652 / 2003 Vs 1. The Judicial Service Commission, No.238, Hulftsdorp Street, Colombo –12.
2. The Hon.Sarath N. Silva, The Chairman Judicial Service Commission, No.238, Huftsdorp Street, Colombo – 12.
3. Hon. Justice Ammer Ismail, Member of the Judicial Service Commission, No.238, Huftsdorp Street, Colombo – 12. 4. Hon. Justice P. Edussuriya Member of the Judicial Service Commission, No.238, Huftsdorp Street, Colombo – 12. 5. Hon Justice Hector Yapa, Judge of the Supreme Court, Superior Court Complex, Colombo –12. 6. Hon Justice P.R.P. Perera, Retired Judge of the Supreme Court and Former Member Judicial Service Commission, No. 18/176C, Muhandiram Dabare Mawatha, Colombo – 5. 7. Hon Justice Weerasekara, Retired Judge of the Supreme Court and Former Member Judicial Service Commission, No. 57, Jayasinghe Mawatha, Colombo – 5. 8. Hon. Gamini A.L. Abeyarathna, Judge of the Court of Appeal, Superior Court Complex, Colombo –12. 9. Hon. Attorney General, Attorney General’s Department, Huftsdorp Street, Colombo – 12. 10. The Secretary, Judicial Service Commission, No. 238, Hulftsdorp Street, Colombo – 12.
Respondents BEFORE : K.SRIPAVAN, J. COUNSEL : Elmo Perera for the petitioner.
Uditha Egalahewa S.C for the ninth respondent.
ARGUED ON : 08.07.03. DECIDED ON : 17.07.03. K.SRIPAVAN, JThe petitioner joined the Judicial Service on 1st November 1988 and served in various stations as Magistrate, Additional Magistrate, Additional District Judge and District Judge until dismissed from service with effect from 7th November 2000. The petitioner seeks a writ of certiorari to quash the impugned order dated 7th November 2000 marked P18 and a writ of mandamus to direct the first respondent Commission to reinstate the petitioner in service. The petitioner filed this application on 8th April 2003. Learned Counsel for the petitioner submitted that the delay in invoking the writ jurisdiction of this court was due to the fact that the petitioner made a complaint to the Human Rights Commission on the basis that the purported dismissal violated the petitioner’s human rights. As averred in paragraph 34 of the petition, learned Counsel urged that the proceedings before the Human Rights Commission came to a standstill on 21st January 2002. The proceedings before the Human Rights Commission is fundamentally different from the proceedings before this court. The petitioner instituted actions in two different forums seeking two different reliefs on the same set of facts. Hence, the petitioner’s explanation that he went before the Human Rights Commission to obtain redress for the violation of his fundamental right is not an excuse for instituting this application after two years and four months of making the order challenged. Even if one goes by the date on which the proceedings before the said Commission came to a halt, there is a delay of almost fourteen months which has not been satisfactorily explained. This court has a discretion to deny the petitioner relief, having regard to his conduct and laches which stand against the grant of discretionary remedy. [Vide Jayaweera Vs Assistant Commissioner of Agrarian Services (1996) 2.S.L.R.70 ; President of Malalgodapitiya Co-operative Society Vs Arbitrator of Co-operative Societies 51.N.L.R.167 ; Gunasekera Vs Weerakoon 73.N.L.R.262 ; Ratnayake Vs Jayasinghe 78.N.L.R.35 ] On a direction issued by court, the learned State Counsel tendered the rules made by the Judicial Service Commission in terms of Article 112 (8) of the Constitution and the file relating to the findings of the inquiry of the petitioner. Rules 18 and 20[c] provide, inter-alia as follows :- “Copies of reports or reasons for findings relating to the inquiry or of
confidential office orders or minutes, will not, however be
issued.” “If the officer replies to
the charges, the Secretary will
place the charges and the reply before the Commission. If the Commission is not
satisfied with
the explanation or if the officer has failed to reply to the charges, the Commission will
either inquire into the matter itself or will appoint a committee of
such persons as it
shall specify, not less than three in number to inquire into the
matter.” Perusal of the inquiry file relating to the petitioner shows that the first respondent Commission appointed a committee consisting of the third, fourth and fifth respondents to inquire into the charges against the petitioner. By a majority decision of the committee, the petitioner was found guilty of all three charges referred to in P6. The first respondent Commission having considered the findings of the committee and the previous conduct of the petitioner as a judicial officer, decided to dismiss him from service and directed the tenth respondent to serve the order of dismissal marked P18 setting out the circumstances under which the first respondent Commission came to the conclusion. It would appear that the petitioner was represented by a President’s Counsel at the aforesaid inquiry. It also appears from the letter dated 3rd February 2003 marked P23 that the proceedings of inquiry were furnished to the petitioner at the time the said inquiry was held. The allegation contained in paragraph 46 of the petition that the first respondent Commission deliberately, unreasonably and maliciously refused to issue to the petitioner certified copies of the inquiry is factually incorrect in view of the contents of P23. The petitioner is not entitled for a copy of the reasons for findings relating to the inquiry in terms of the express provision contained in Rule 18. Learned Counsel also urged bad faith on the part of the first respondent Commission. “The plea of mala fides is raised often but it is only rarely it can be substantiated to the satisfaction of Court. Merely raising doubt is not enough. There should be something specific, direct and precise to sustain the plea of mala fides. The burden of proving mala fides is on the individual making allegation as the order is regular on its face and there is a presumption in favour of the administration that it exercises its power in good faith and for the public benefit.” Principles of Administrative Law (Jain & Jain, 4th Edition 1988 Page 564) Accordingly, the court will not in general entertain allegations of bad faith made against the repository of a power, unless bad faith has been expressly pleaded and properly enumerated in detail. [Vide Gunasinghe Vs Hon Gamini Dissanayake 1994 2.S.L.R.132 ]. The petition however did not set out in detail the allegations of mala fide against the first respondent Commission. Thus, in terms of Article 111K of the 17th amendment to the Constitution, the members of the first respondent Commission are immuned from legal proceedings. The petitioner has failed to establish want or excess of jurisdiction on the part of the first respondent, denial of natural justice or error of law on the face of record which are generally considered as grounds on which the writ lies. Accordingly, this court does not see any legal basis on which the decision contained in P18 could be interfered with. For the reasons stated, I am not inclined
to issue notice on the respondents. Notice on the respondents is accordingly
refused. JUDGE OF THE COURT OF APPEAL
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