Supreme Court of the Democratic Socialist Republic of Sri Lanka: Full Bench of P. Padman Surasena, Janak De Silva and Mahinda Samayawardhena, JJ., allowed an application which was filed contending violation of Fundamental Rights enshrined in Article 12(1) of the Constitution.
The Petitioner was a Leading Electrical Mate in the Sri Lanka Navy and was enlisted on 27-05-1998. According to Regulation 7 of the Seaman’s Enlistment and Service Regulations 1950 promulgated by the Minister of Defence in terms of Section 161 of the Navy Act No. 34 of 1950 as amended, the period of original enlistment of a seaman is twelve years. In terms of Regulation 8, a seaman, may, before the expiry of the period of his original enlistment, be re-engaged for service in the Regular Naval Force for a further period of not exceeding twenty years. The Sri Lanka Navy issued a message dated 24th September 2009 (P5) ordering all the seamen who were enlisted as 82nd and 83rd intakes to apply for the re-engagement to the Regular Naval Force before the expiry of their initial service period of twelve years.
The Petitioner belonged to the 83rd intake and hence applied for re-engagement by application dated 26-12-2009 (P6). Although he did not receive any reply to the application, he continued to serve in the Regular Naval Force for another one year and four months after his initial service period was completed on 27-05-2010. However, he was not given any promotions and salary increments during this period.
On 29-08-2011, the Petitioner received a letter sent by the Navy Head Quarters (P8) by which he was informed that he has been discharged with effect from 1st September 2011 in terms of Regulation 15(1)(v) of the Seaman’s Enlistment and Service Regulations 1950. The Petitioner contended that the discharge from the Sri Lanka Navy and the refusal to re-engage him is arbitrary, unreasonable and discriminatory and violates the fundamental rights of the Petitioner enshrined in Article 12(1) of the Constitution.
The Court observed that in terms of Regulation 10, there is discretion vested in the Commander of the Sri Lanka Navy to re-engage a seaman even though he fulfills the criteria set out therein. However, every discretionary power has limits. There is no such thing as unfettered discretion. Unfettered discretion is anathema to the rule of law on which our Constitution is founded.
The Court explained that in deciding whether the Commander of the Navy has acted within the limits of the law in exercising his discretion, it is important to ascertain the reasons for his decision. The Court held that the decision-maker owes a duty to the Court to disclose the reasons for his decision. Even where no reasons have been given to the affected party, the departmental file must contain the reasons for the impugned decision. Where no such reasons have been recorded, the only conclusion the Court can draw is that the decision was taken devoid of any reasons and is hence arbitrary. Where an administrative body fails to disclose to Court the reasons for the exercise of discretionary power, that is a violation of the rule of law. It results in a fundamental breach of the law and a denial of the equal protection of the law.
The Court found that the decision contained was arbitrary and unreasonable and that the fundamental rights of the Petitioner guaranteed by Article 12(1) of the Constitution has been infringed by discharging him with effect from 01-09-2011 in terms of Regulation 15(1)(v) of the Seaman’s Enlistment and Service Regulations 1950.
The Court directed the State to pay a sum of Rs 50,000 as compensation to the Petitioner for the violation of his fundamental right guaranteed by Article 12(1) of the Constitution and consider the application made by the Petitioner for re-engagement by application dated 26-12-2009 in terms of Regulation 10 of the Seaman’s Enlistment and Service Regulations 1950 and take a decision according to law.[Peduru Arachchige Janaka Pushpakumara v. Director-General, S.C.(F.R.) Application No: 452 of 2011, decided on 06-07-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
Counsel:
Saliya Pieris PC with Susil Wanigapura for the Petitioner.
Anusha Jayatilleke SSC for the Respondents.
