Legal Services and Laws of Sri Lanka


SLR-2003 Vol.3-P101

SLR - 2003 Vol.3, Page No - 101

BANDARANAYAKE

v.

JUDICIAL SERVICE COMMISSION
COURT OF APPEAL

SRIPAVAN, J.

CA. 652/2003

JUNE 8, 2003
Writ of Certiorari - Judicial Service Commission - Constitution Articles111(K),112(g)-17thAmendment-Committee
appointed by J.S.C. to inquire into charges against a Judicial Officer - Is the petitioner entitled to a copy of thereasons
? - Long delay - Mala fides - should it be pleaded and enumerated in detail ?

Held :
(i) The petitioner's explanation that he went before the Human Rights Commission to obtain redress for the violationofhis
fundamental rights is not an excuse for instituting theapplicationafter2yearsand4monthsofmakingtheOrder
challenged. The court has a discretion to deny the petitioner relief, having regard to his conductandlacheswhichstand
against the grant of discretionary remedy.

(ii) The petitioner is not entitled to a copy of the reasons, in terms of Rule 18.

(iii) Court will not in general entertain allegations of bad faith made against the repository of a power, unlessbadfaith
has been expressly pleaded and properly enumerated in detail.
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(iv) The members of the Judicial Service Commission are immune from legal proceedings,

APPLICATION for a Writ of Certiorari.
Cases referred to :
1. Jayaweera v Asst. Commissioner of Agrarian Services 1996 2 SRI LR 70.

2. President of Malaigodapitiya Co-operative Society v Arbitrator of Co operative Societies 51 NLR167.

3. Gunasekera v Weerakoon 73 NLR 262.

4. Ratnayake v Jayasinghe 78 NLR 35.

5. Gunasinghe v Hon. Gamini Dissanayake 1994 2 SRI LR.

Elmo Perera for petitioner.

Uditha Egalahewa S.C. for 9th respondent (Attorney-General).
Cur. adv. vult
July 17. 2003.
SRIPAVAN, J.
The petitioner joined the Judicial Service on 1 st November 1988 and served in variousstationsasMagistrate,Additional
Magistrate, Additional District Judge and District Judge until dismissed from service with effectfrom7thNovember2000.
The petitioner seeks a writ of certiorari to quash the impugnedorderdated7thNovember2000markedP18andawritof
mandamusto direct the first respondent Commission to reinstate the petitioner in service.

The petitioner filed this application on 8th April 2003. Learned counsel for thepetitionersubmittedthatthedelayin
invoking the writ jurisdiction of this court was due to the fact that the petitioner made a complainttotheHumanRights
Commission on the basis that the purported dismissal violated the petitioner's human rights. As averred inparagraph34of
the petition, learned Counsel urged that the proceedings before the Human Rights Commission cametoastandstillon21st
January 2002. The proceedings before the Human Rights Commission is fundamentally different from the proceedings beforethis
court. The petitioner instituted actions in two different for a seeking two different reliefsonthesamesetoffacts.
Hence, the petitioner's explanation that he went before the Human
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Rights Commission to obtain redress for the violation of his funda- mental rightisnotanexcuseforinstitutingthis
application after two years and four months of making the order challenged. Even ifonegoesbythedateonwhichthe
proceedings before the said Commission came to a halt, there is adelayofalmostfourteenmonthswhichhasnotbeen
satisfactorily explained. This court has a discretion to deny the petitioner relief, having regard to his conduct andlaches
which stand against the grant of discretionary remedy. [Vide Jayaweera v AssistantCommissionerofAgrarianServices(1)
President of Malalgodapitiya Co-operative SocietyvArbitratorofCo-operativeSocieties(2)GunasekeravWeerakoon(3)
Ratnayake v Jayasinghe (4)

On a direction issued by court, the learned State Counsel tendered the rules madebytheJudicialServiceCommissionin
terms of Article 112 (8) of the Constitution and the file relating to the findings of the inquiry ofthepetitioner.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 ordersorminutes,willnot,
however be issued."

"If the officer replies to the charges, the Secretary will place the charges and the replybeforetheCommission.Ifthe
Commission is not satisfied with the explanation or if the officer has failed to reply to the charges,theCommissionwill
either inquire into the matter itself or will appoint a committee of such persons as it shall specify, notlessthanthree
in number to inquire into the matter."

Perusal of the inquiry file relating to the petitioner shows that thefirstrespondentCommissionappointedacommittee
consisting of the third, fourth and fifth respondents to inquire into the chargesagainstthepetitioner.Byamajority
decision of the committee, the petitioner was found guilty of all three charges referredtoinP6.Thefirstrespondent
Commission having considered the findings of the committee and the previous conduct of the petitioner as a judicialofficer,
decided to dismiss him from service and directed the tenth respondent to serve the order of dismissal marked P18 settingout
the circumstances under which the first respondent
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Commission came to the conclusion. It would appear that the petitioner wasrepresentedbyaPresident'sCounselatthe
aforesaid inquiry. It also appears from the letter dated 3rd February 2003 marked P23 that the proceedingsofinquirywere
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, unreasonablyand
maliciously refused to issue to the petitioner certified copies oftheinquiryisfactuallyincorrectinviewofthe
contents of P23. The petitioner is not entitled for a copy of the reasons for findings relating to the inquiryintermsof
the express provision contained in Rule 18. Learned Counsel also urgedbadfaithonthepartofthefirstrespondent
Commission. "The plea of mala fides is raised often but it is only rarely it can besubstantiatedtothesatisfactionof
Court.Merely raising doubt is not enough. There should be something specific, direct and precise tosustainthepleaof
mala fides. The burden of proving mala fides is on the individual making allegation as the order is regular on itsfaceand
there is a presumption in favour of the administration that itexercisesitspoweringoodfaithandforthepublic
benefit." Principles of Administrative Law (Jain & Jain, 4th Edition 1988 Page564)Accordingly,thecourtwillnotin
general entertain allegations of bad faith made against the repository of apower,unlessbadfaithhasbeenexpressly
pleaded and properly enumerated in detail. [Vide Gunasinghe v Hon GaminiDissanayake (5) The petition howeverdidnotset
out in detail the allegations of mala fide against the first respondent Commission. Thus, in terms ofArticle111Kofthe
17th amendment to the Constitution, the members of the first respondent Commission are immunefromlegalproceedings.The
petitioner has failed to establish want or excess of jurisdiction on the part of thefirstrespondent,denialofnatural
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 therespondents.Noticeontherespondentsisaccordingly
refused.

Notice refused.


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