Administrative Appeals Tribunal rescinds PSC order on SLAS officer

THE Administrative Appeals Tribunal has rescinded the order made by the Public Services Commission which stayed the appointment of an SLAS Officer as Additional Secretary to the Ministry of Infrastructure Development in the Eastern Province on the grounds of a purported disciplinary inquiry against him, holding that appellant had no time being issued with a charge sheet for such disciplinary inquiry to be launched in terms of the Establishment Code.

The Tribunal comprised Retired Supreme Court Justice S.W.B. Wadugodapitiya PC (Chairman) and members D.M. Ariyaratne and S.M.M. Abdul Ghaffoor unanimously found that the Public Services Commission had committed an error where the appellant is concerned, resulting in a great injustice to him.

The appellant Sunimal Senaratne of the Ministry of Infrastructure Development, Eastern Province was represented by Attorney-at-Law Abdul Najeeb, also present at the inquiry were Director of Establishments of the Ministry of Public Adminstration and Home Affairs S. Alokabandara and Senior Assistant Secretaries of the Public Services Commission, Mrs. P. S. Dharmasena and Mrs. M. G. N. M. M. Perera.

The ruling of Tribunal interalia states:

In this case, the appellant's complaint is that his appointment as Additional Secretary of Ministry of Infrastructure Development in the Eastern Province with effect from 26.05.2004 has been prevented by the Public Service Commission on the grounds that he cannot be so appointed until the disciplinary inquiry which is presently pending against him reaches a final conclusion.

The Public Service Commission specifically states that it is not possible to appoint him as Additional Secretary, and that it has taken such a decision and ordered that the appellant cannot be so appointed for the above mentioned reason (and no other).

This is contained in the letter signed by the Public Service Commission to the Secretary, Ministry of Infrastructure Development in the Eastern Province dated 19.07.2004. According to the Senior Assistant Secretary, this letter is based on a decision taken by the Public Service Commission on 19.07.2004.

It is only too clear from the letter dated 26.05.2004 sent by the PSC to the Ministry that the Public Service Commission has based its decision on a supposed ongoing disciplinary inquiry.

Without any doubt, however it is seen that on the date on which the said letter was written namely. 19.07.2004 no charge sheet whatsoever of any kind had been served on the appellant, and therefore, in terms of Section 13:1 of Chapter XLVIII of the Establishments Code, no disciplinary action or disciplinary inquiry had commenced against the appellant.

It must be mentioned here, according to the Senior Assistant Secretary of the Public Service Commission who was present before us that they had issued a charge sheet on 12.07.2004, but had sent it to the wrong place. It was submitted that this was done knowing fully well that the appellant was not at that place.

It must be mentioned that by the time the charge sheet was served on the appellant on 07.09.2004, the appellant had already appealed to this Tribunal (on 17.08.2004) against the order of the Public Service Commission contained in its abovequoted letter dated 19.07.2004.

Thus, it is clear that even on the date on which this Tribunal received the appeal of the appellant against the Public Service Commission order, he (the appellant) had still not been served with any charge sheet whatsoever.

It would be wrong for the Public Service Commission to deprive the appellant of his appointment basing itself solely upon the mere fact of the issuance of a charge sheet.

Secondly, either deliberately or by accident, the charge sheet may have been sent to the wrong address as happened in this case, and may take several months or longer to reach the appellant or might, in an extreme instance never reach him at all. It can never be said, by any stretch of the imagination, that the mere fact of the issuance of a charge sheet is conclusive proof of disciplinary proceedings having in fact commenced.

The Tribunal unanimously holds that the mere fact of issuing a charge sheet has no validity and that the effective date is date on which the charge sheet was actually received by the appellant, which was on 07.09.2004.

This entails very serious consequences, because as stated above, in actual fact the appellant appealed to this Tribunal on 17.08.2004 which was before he was served with and received any charge sheet. Therefore at the time he appealed to this Tribunal, he was quite free of any charge sheet or any disciplinary proceedings against him and did not even know of any such.

"Therefore, this Tribunal holds that on the relevant date no charge sheet had been in fact served on the appellant and no disciplinary proceedings had commenced against him. In any event it is common sense, that there is no purpose whatsoever in merely issuing a charge sheet, unless and until it actually reaches the appellant and is received by him.